State v. VaughnState v. Vaughn
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- Before:
- Daly
The defendant appeals from the judgment of conviction, after a jury trial, of the sale of heroin by a person who is not drug-dependent in violation of
The following facts do not appear to be in dispute. On the afternoon of December 15,1987, Officers Frank Roberts, Robert Brooks and Edward Kendall of the New Haven street narcotics task force were working as undercover officers assigned to purchase narcotics from suspected drug dealers. The three officers operated as a team and, on that afternoon, were working on Sylvan Street and Elliott Street in a neighborhood
That afternoon, at about 3:15 p.m., Roberts drove up Elliott Street toward a group of individuals. As he approached, the defendant, who was dressed in a red ski jacket with a large blue stripe and a grey hоod protruding from the jacket, and blue jeans, approached the car and offered to sell heroin to Roberts.1 A $20 transaction was completed. After the purchase, Roberts met with the other officers, initialed and dated the packet and gave it to Kendall. Kendall had the packet field-tested, and the results of that test indicated that the substance was heroin.
After meeting with the officers, Roberts went to police headquarters, where he identified the defendant’s picture from a photo array. The defendant was subsequently arrested and charged with the sale of heroin by a person who is not drug-dependent in violation of
The defendant’s first claim is that the trial court erred in granting the state’s request to amend the information after the defendant had rested and immediately prior to closing arguments.
Section 624 prevents the defendant from being charged with additional or different offenses. See id. “The state’s right to amend must be limited to substitutions that do not charge the defendant with an additional or different offense because the defendant has a constitutional right to fair notice, prior to the commencement of trial, of the charges against which he must defend himself.” State v. Jacobowitz, 182 Conn. 585, 590, 438 A.2d 792 (1981). “After trial has commenced ... ‘an amendment is permissible only to charge a lesser included offense.’ ” State v. Cole, 8 Conn. App. 545, 552, 513 A.2d 752 (1986), quoting State v. Jacobowitz, supra.
In the present case, the original and amended information charged the defendant with the same crime,
Section 624 also provides that the defendant’s substantive rights must not be prejudiced by any amendment. See State v. Anderson, supra. In the present case, the defendant argues that he was denied due process of law because he was denied the opportunity to argue to the jury in his closing argument that the state did not prove that the defendant was not a drug-dependent person.
The state does not carry the burden of proving that the defendant is not a drug-dependent person unless the defendant has raised the issue of drug dependency and met his burden of producing substantial evidence on this issue. See State v. Januszewski, 182 Conn. 142, 169, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981).
In the present case, the record indicates that the defendant did not offer any evidence of drug dependency, and thus the state did not have the burden of proving beyond a reasonable doubt that the defendant was not drug-dependent. For this reason, the defendant’s claim that his substantive right of due process was prejudiced is without merit.
Because the defendant had adequate notice оf the charge against him and the amendment did not prejudice his substantive rights, we conclude that the trial court did not err in granting the state permission to file an amended information after the defendant had rested and immediately prior to closing arguments.
The defendant’s second claim is that the prosecutor abused his discretion when he charged the defendant with a violation of
At the outset, it should be noted that this court may review only those issues that are properly raised and ruled on by the trial court. See State v. Riggs, 7 Conn. App. 180, 184, 508 A.2d 67, cert. denied, 200 Conn. 804, 510 A.2d 191, cert. denied, 479 U.S. 852, 107 S. Ct. 183, 93 L. Ed. 2d 118 (1986). “In general, a claim of an abuse of prosecutorial discretion should be made by a motion to dismiss based upon the ‘insufficiency of evidence or cause to justify the bringing or continuing of such information or indictment or the placing of the defendant on trial . . . .’
In the present case, the defendant never made a formal objection to the charge of sale of narcotics by a person who is not drug-dependent. “Nevertheless, because the defendant’s claim raises an issue of his constitutional right to due process, wе shall review his claim to the extent that it is clearly established in the record.” Id.
The defendant first contends that the prosecutor abused his discretion in charging the defendant with a violation of
“ ‘A defendant hаs no constitutional right to elect which of two applicable statutes shall be the basis of his indictment and prosecution.’ ” Id., 280-81, quoting Hutchinson v. United States, 345 F.2d 964, 967 (D.C. Cir.), cert. denied, 382 U.S. 894, 86 S. Ct. 188, 15 L. Ed. 2d 151 (1965); see also State v. Rodo, 14 Conn. App. 322, 330, 541 A.2d 124, cert. denied, 208 Conn. 813, 546 A.2d 282, cert. denied, 488 U.S. 927, 109 S. Ct. 311, 102 L. Ed. 2d 330 (1988) (prosecutor did not abuse his discretion when he charged the defendant with a violation of
The defendant’s nеxt objection is that the prosecutor abused his discretion by charging a violation of
Finally, the defendant claims that the prosecutor abused his discretion by charging him with a violation of § 2 la-278 (b) when the prosecutor had reason to believe that the defendant would not raise the issue of drug dependency at trial because the defendant could not himself testify due to his long criminal record, and because the one month delay between the alleged sale and the defendant’s arrest made it difficult for the defendant to obtain medical evidence. This сlaim is also without merit.
The defendant’s choice not to testify at trial was a matter solely of his own choice. The prosecutor cannot know whether the defendant will exercise his right not to testify. Further, the defendant could have prеsented evidence to the jury that he was drug-dependent through other witnesses and evidence. The one month delay between the alleged sale and the defendant’s arrest did not prevent the defendant from bringing forth evidence that he was a drug-dependent person at the time of the sale. The prosecutor did not abuse his discretion by charging the defendant with a violation of
Ill
The defendant’s third claim is that
There is no error.
In this opinion the other judges concurred.
Notes
The defendant used the word “power” when he offered to sell the narcotic. Testimony revealed that this word is the street name for heroin.
The state must also show good cause. In the present case, the state argued that it was required only to prove the essential elements of the crime as set out in
The defendant in Januszewski v. Manson, 525 F. Sup. 805, 811-12 (D. Conn. 1981), relying on Tot v. United States, 319 U.S. 463, 63 S. Ct. 1241, 87 L. Ed. 1519 (1943) and Leary v. United States, 395 U.S. 6, 89 S. Ct. 1532, 23 L. Ed. 2d 57 (1969), (1) contended that
In rejecting the first claim, the court stated that these sections “merely allocate the burden of production on an affirmative defense. They do not create a presumption requiring an inference of one fact from proof of another. Even accepting for the sake of argument the suggestion that these statements create a presumption of non-drug-dependency, such a presumption would be upheld under the ‘more-likely-than-not’ standard of Leary v. United States.” Januszewski v. Manson, supra, 811.
As to the second claim, the court stated, “[rjequiring a defendant to produce evidence is not equivalent to requiring him to testify. Other evidence of drug dependence could be presented in lieu of his own testimony.” Id., 812.