37 Conn. App. 456 | Conn. App. Ct. | 1995
The defendant appeals from the judgment of conviction, rendered after a jury trial, of three counts of sale of narcotics and one count of possession of narcotics with intent to sell in violation of General Statutes § 21a-278 (b),
The jury reasonably could have found the following facts. On the evening of February 6,1992, Detectives Carl Bergquist and Ada Kuret were conducting a narcotics surveillance in the area of Seaview Avenue and Huron Street in Bridgeport. On three occasions, a different individual approached Jeffrey Braziel, who was standing in front of a house on Huron Street.
At trial, Braziel testified against the defendant. He admitted that he had previously sold drugs for the defendant and that he had met him on February 6, 1992, for that purpose. On that day, the defendant gave Braziel a package containing sixty vials of crack to be sold for $5 each. Upon selling all the vials, Braziel kept $50 and gave $250 to the defendant. Although no one approached the defendant directly, if a potential buyer did not know where to go, the defendant would signal Braziel.
At the time of his testimony, Braziel had pleaded guilty to five drug related charges and was awaiting sentencing. He previously had been convicted of several felonies and was willing to come forward and testify against the defendant when he found out that he could benefit from it. During the cross-examination of Braziel, the following colloquy occurred:
“Q. For how many years have you been selling drugs?
“A. I don’t know.
“A. Well, around ’88 or ’89. Something like that.
“Q. And when you were selling drugs back in ’88 or ’89, where were you selling them? Same location?
“A. No.
“Attorney Palombo: I’m going to object again on his behalf. He hasn’t been offered any type of immunity and I don’t know if he has a — to take the privilege as far as any acts he may have committed which he may testify to.
“Attorney Goldberg: I’d be happy to talk to him. I would object to answering those, also.
“The Court: You are objecting, claiming the privilege?
“Attorney Goldberg: Yes, Your Honor.
“The Court: Sustained.”
Later in the cross-examination, while the defense was questioning Braziel about the circumstances surrounding his initial contact with the defendant, the following transpired:
“Q. Had this person brought you to some other locations for the same purpose [to sell drugs]?
“Attorney Goldberg: Objection, Your Honor.
“The Court: Sustained.
“Defense Counsel: May I have an exception, please, Your Honor?
“The Court: The objections that come from Miss Goldberg are obviously a claim that he is exercising his fifth amendment right.
“Defense Counsel: Yes, Your Honor.”
A hearing was also required in this case for the trial court to determine whether Braziel’s claim of privilege against self-incrimination should be sustained. For the court to sustain the claim, “ ‘it need only be evident from the implications of the question, in the context in which it is asked, that a responsive answer to the
The defendant testified on his own behalf. He maintained that he did not supply Braziel with drugs and that he did not use drugs. He testified that he was on the comer of Seaview Avenue and Huron Street on the evening of February 6, 1992, for the purpose of buying a used car. Consequently, he did not have any occasion to enter into any conversations with Braziel and did not direct anyone to Braziel for the purpose of buying dmgs. He farther asserted that he first met Braziel in the lockup after having been arrested and did not recall having seen Braziel before that time.
Braziel testified on direct examination about “someone” who drove him to the comer of Seaview Avenue and Huron Street to meet the defendant and to sell drags. He stated that he knew he was going there to sell drugs for the defendant because “the guy told me to go to Mr. Wilkes” and because “this is not my first time doing this .... It’s not my first day selling-selling cracks.” He indicated that he had previously sold drags for the defendant and described his participation in drag transactions.
The crucial evidence necessary to obtain the defendant’s convictions was supplied by Braziel, who was the state’s key witness. The two areas of inquiry to which
In State v. Cecarelli, supra, 32 Conn. App. 811, the colloquy in which the witness, through his attorney, invoked his fifth amendment privilege occurred outside the presence of the jury. In that case, we directed the trial court to hold a hearing to determine whether the witness intended to invoke his privilege and, if so, whether the claim should be sustained.
The judgment is reversed and the case is remanded for a new trial.
In this opinion the other judges concurred.
General Statutes § 21a-278 (b) provides; “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any narcotic substance, hallucinogenic substance other than marijuana, amphetamine-type substance, or one
General Statutes § 53a-48 (a) provides in pertinent part: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”
The fifth amendment to the United States constitution provides in pertinent part: “No person shall ... be compelled in any criminal case to be a witness against himself . . . .”
Richard Palombo, Jr., assistant state’s attorney, represented the state of Connecticut and Carol Goldberg, assistant public defender, represented Braziel.
General Statutes § 52-199 (b) provides: “The right to refuse to answer a question, produce a document or disclose a title may be claimed by the party interrogated or by counsel in his behalf.”
In the event that the Cecarelli witness did not invoke his privilege or if he improperly invoked it, we further directed that Cecarelli’s convictions be reversed and a new trial conducted. State v. Cecarelli, supra, 32 Conn. App. 822.