State v. Qayyum ( 2020 )

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STATE OF CONNECTICUT v. MUHAMMAD
A. QAYYUM
(AC 42456)
Bright, C. J., and Suarez and Lavery, Js.
Syllabus
Convicted, after a jury trial, of the crimes of conspiracy to sell narcotics
and possession of narcotics with intent to sell, the defendant appealed
to this court. Held:
1. The defendant could not prevail on his claim that the trial court violated
his due process rights by shifting the burdens of proof and persuasion
to him to prove that he had a legitimate source of income, which was
based on his claim that the court erred in permitting a state Department
of Labor representative, R, to testify that the defendant had no reportable
wages, thereby suggesting that he earned a living selling drugs: the
defendant’s claim challenging R’s testimony was evidentiary rather than
constitutional in nature; moreover, the trial court did not abuse its
discretion in admitting R’s testimony and determining that the probative
value of the evidence of the defendant’s lack of reportable wages out-
weighed its prejudicial effect, as that evidence was probative of whether
the defendant was engaged in trafficking drugs and was not unduly
prejudicial because R’s testimony was not presented in a manner that
would have improperly aroused the emotions of the jurors; furthermore,
even if this court assumed that the trial court abused its discretion in
admitting R’s testimony, any error was harmless, as the defendant failed
to satisfy his burden of proving that it was more probable than not that
the admission of the testimony substantially affected the verdict.
2. The defendant’s claim that the trial court erred in admitting impermissible
expert opinion testimony from F, a police detective, on the ultimate
issue of whether the defendant intended to sell narcotics was unavailing;
that court did not abuse its discretion in admitting F’s testimony, as his
testimony concerned only general factors that he would consider when
deciding to charge a person with possession of narcotics with intent to
sell, including the general behavior of drug users and drug traffickers,
and the prosecutor did not ask F for his specific opinion about whether
the defendant possessed narcotics with intent to sell, and, therefore, F
never expressed his opinion on the ultimate issue before the jury; more-
over, even if this court assumed that the trial court improperly admitted
F’s testimony, the defendant failed to satisfy his burden of proving that
the admission of F’s testimony more probably than not affected the
verdict and therefore was harmful.
Argued September 9—officially released December 22, 2020
Procedural History
Two part substitute information charging the defen-
dant, in the first part, with the crime of conspiracy to
sell narcotics and two counts of the crime of possession
of narcotics with intent to sell, and, in the second part,
with previously having been convicted of the crime of
sale of narcotics, brought to the Superior Court in the
judicial district of Litchfield at Torrington, where the
first part of the information was tried to the jury before
Danaher, J.; verdict of guilty; thereafter, the defendant
was presented to the court, Danaher, J., on a plea of
guilty to the second part of the information; judgment
of guilty in accordance with the verdict and plea, from
which the defendant appealed to this court. Affirmed.
Robert L. O’Brien, assigned counsel, with whom, on
the brief, was William A. Adsit, assigned counsel, for
the appellant (defendant).
Linda F. Currie-Zeffiro, assistant state’s attorney,
with whom, on the brief, were Dawn Gallo, state’s attor-
ney, and David Shannon, supervisory assistant state’s
attorney, for the appellee (state).
Opinion
LAVERY, J. The defendant, Muhammad A. Qayyum,
appeals from the judgment of conviction, rendered after
a jury trial, of one count of conspiracy to sell narcotics
in violation of General Statutes §§ 53a-48 and 21a-277
(a) and two counts of possession of narcotics with
intent to sell in violation of § 21a-277 (a). On appeal,
the defendant claims that the trial court (1) violated
his due process rights by shifting the burdens of proof
and persuasion to him to prove that he had a legitimate
source of income and (2) erred by allowing impermissi-
ble expert opinion testimony regarding his intent to sell
narcotics. We affirm the judgment of the trial court.
The following facts, which the jury reasonably could
have found, and procedural history are relevant to our
discussion. On April 12, 2017, Torrington Police Officer
Matthew Faulkner went to 356 Migeon Avenue in Tor-
rington to execute a search warrant following his inves-
tigation regarding possible drug sales being conducted
from unit 1 North, the apartment of Oscar Pugh. Officer
Faulkner surveilled the residence for approximately
one hour. During that time, two people separately
arrived at Pugh’s apartment but departed quickly. Offi-
cer Faulkner also saw the defendant arrive in a dark
gray Infiniti sedan bearing Massachusetts license plates,
which the defendant had rented from Hertz. The defen-
dant had rented cars from Hertz for sixty-three days
during the period from January, 2017, until his arrest
in April, 2017, with the rentals costing between $2500
and $2600. Officer Faulkner frequently had observed
the defendant at Pugh’s apartment over these preced-
ing months.
Additional police arrived approximately one hour
after Officer Faulkner began his surveillance. The police
executed the search warrant and detained the defen-
dant and Pugh. The defendant eventually admitted that
he had narcotics in his front pockets, and Officer Faulk-
ner then proceeded to search them. Inside, he found
$267 in small bills, seven wax folds of heroin, and two
‘‘dubs’’ of crack cocaine.1 The police did not find any
drug paraphernalia on the defendant or in his rental car,
but a canine officer alerted on the car’s trunk and door.
The police also searched Pugh. They found six wax
folds of heroin and $2 in his pockets and a single dub
of crack cocaine in his sock. They also found seventeen
dubs of crack cocaine in between the couch cushions
where Pugh was seated, along with various items of
drug paraphernalia such as crack pipes and cut straws.
Additionally, they found a handwritten ledger docu-
menting narcotics sales. Pugh admitted that the narcot-
ics found on his person were his and that he was a
heavy user, but he denied that the other narcotics in
the apartment belonged to him. Other than the $2 found
on Pugh’s person, the police did not find any other
money within the apartment.
The defendant was charged by way of a substitute
long form information with one count of conspiracy to
sell narcotics in violation of §§ 53a-48 and 21a-277 (a)
and two counts of possession of narcotics with intent
to sell in violation of § 21a-277 (a). The defendant also
was charged in a part B information with having twice
been convicted of the sale of narcotics in violation of
§ 21a-277 (a). The defendant pleaded not guilty and
elected to be tried by a jury. On August 16, 2018, a jury
of six found the defendant guilty of all three counts.
Later that day, the defendant pleaded guilty to the two
counts of the part B information. On November 9, 2018,
the court sentenced the defendant to a total effective
term of twenty years of incarceration, execution sus-
pended after twelve years, with five years of probation.
This appeal followed. Additional facts will be set forth
as necessary.
I
The defendant first claims that the trial court violated
his due process rights by shifting the burdens of proof
and persuasion to him. Specifically, he argues that the
court erred by permitting the state to present evidence
that he had no reportable wages, thereby suggesting
that he earned a living selling drugs, and thus placing
the burden on him to prove that he had a legitimate
source of income. In response, the state argues that
the defendant’s challenge to the disputed testimony
presents an evidentiary issue rather than a constitu-
tional one and that the trial court did not abuse its
discretion in determining that the probative value of
the evidence of the defendant’s lack of reportable wages
was not outweighed by its prejudicial effect. We agree
with the state.
The following additional facts are relevant to this
claim. At trial, Pugh testified that he had known the
defendant for more than one year and that the defendant
had told him that he needed a place to sell drugs. Pugh
further testified that, in the year preceding their arrests,
the defendant would come by his apartment every few
days and that he gave Pugh a reduced price for the
drugs that Pugh used in exchange for using Pugh’s apart-
ment to sell drugs. Pugh saw the defendant sell drugs
in his apartment but never saw the defendant use any
heroin or crack cocaine.
After the first day of evidence, defense counsel
informed the court that he objected to the state’s antici-
pated presentation of testimony from David Ricciuti, a
representative from the Department of Labor (depart-
ment). After defense counsel questioned the relevance
of such testimony, the prosecutor responded that the
state intended to call Ricciuti to testify that the defen-
dant had no reportable wages for the relevant time
period prior to his arrest. In response, defense counsel
preliminarily argued that such evidence was irrelevant,
not probative of any issues in the case, prejudicial, and
might ‘‘play on certain biases that people hold, implicit
biases as well.’’ The court informed the parties that it
would entertain argument on the issue the following
morning, and the prosecutor stated his intent to rely
on State v. Perry, 58 Conn. App. 65, 68–69, 751 A.2d
843, cert. denied, 254 Conn. 914, 759 A.2d 508 (2000),
in support of the admissibility of Ricciuti’s testimony.
The next morning, defense counsel did not argue that
the evidence was irrelevant. Instead, he stated that his
objection was ‘‘primarily an evidentiary objection based
on [the expected testimony] being overly prejudicial
and more prejudicial than probative’’ because it did
not demonstrate ‘‘an imminent financial burden on the
defendant.’’ Defense counsel argued that suggesting
that someone is more likely to commit a crime because
they do not have a job ‘‘inappropriately plays on biases
that people may have, it fits into a stereotype and . . .
runs the risk of arousing the jury’s potential prejudices
and implicit biases . . . .’’ Defense counsel conceded
that the issue was not ‘‘of a constitutional magnitude,’’
although he did argue that admitting the evidence
‘‘would also shift the burden to [the defendant] to have
to rebut the evidence, [which] would be impermissible
or improper . . . .’’ In response, the prosecutor argued
that, when considered with other evidence, specifically
the facts that the defendant had spent several thousands
of dollars on rental cars during the months leading up
to his arrest and had $267 and narcotics in his pocket,
the evidence concerning his lack of reportable wages
was more probative than prejudicial. In particular, the
prosecutor argued that Ricciuti’s testimony, coupled
with the other evidence, would permit the jury to infer
that the defendant’s otherwise unexplained wealth
came from drug trafficking. The court, relying on this
court’s opinion in Perry, overruled the defendant’s
objection. The court reasoned that Ricciuti’s testimony
was ‘‘not simply evidence . . . that the defendant does
not have great resources. It’s some evidence that he
doesn’t have a visible source of income . . . and yet
he has funds to expend.’’ The court noted that this court
in Perry held that similar evidence was admissible and
not unduly prejudicial. The court further noted that
the evidence that the state sought to introduce was
significantly less detailed than what was offered in
Perry and, therefore, less prejudicial.
On direct examination, Ricciuti testified that the
defendant did not have any wages in either 2016 or
2017 that were reported to the department. He acknowl-
edged, however, that some people have ‘‘under the table
jobs,’’ for which the department would have no record.
He also admitted on cross-examination that income
from self-owned businesses, Social Security disability
benefits, rental properties, and lottery winnings are not
reportable wages.
During closing argument, defense counsel reminded
the jury of Ricciuti’s testimony and commented that
the state had presented no testimony that it had checked
to see if the defendant had other sources of income.
He also emphasized that the fact that the defendant did
not have any taxable wages did not necessitate a finding
that he sold drugs because there are numerous types
of legitimate forms of income that would not need to
be reported to the department.
We now set forth our standard of review and the
relevant legal principles governing this claim. ‘‘[U]nless
an evidentiary ruling involves a clear misconception of
the law, [t]he trial court has broad discretion in ruling
on the admissibility . . . of evidence. . . . The trial
court’s ruling on evidentiary matters will be overturned
only upon a showing of a clear abuse of the court’s
discretion. . . . We will make every reasonable pre-
sumption in favor of upholding the trial court’s ruling
. . . . Moreover, evidentiary rulings will be overturned
on appeal only where there was an abuse of discretion
and a showing by the defendant of substantial prejudice
or injustice.’’ (Internal quotation marks omitted.) State
v. Rosa, 104 Conn. App. 374, 377–78, 933 A.2d 731 (2007),
cert. denied, 286 Conn. 906, 944 A.2d 980 (2008).
‘‘[E]vidence is relevant if it has a tendency to establish
the existence of a material fact. . . . Relevant evidence
is evidence that has a logical tendency to aid the trier
[of fact] in the determination of an issue. . . . One fact
is relevant to another if in the common course of events
the existence of one, alone or with other facts, renders
the existence of the other either more certain or more
probable. . . .
‘‘Although relevant, evidence may be excluded by the
trial court if the court determines that the prejudicial
effect of the evidence outweighs its probative value.
. . . Of course, [a]ll adverse evidence is damaging to
one’s case, but it is inadmissible only if it creates undue
prejudice so that it threatens an injustice were it to be
admitted. . . . The test for determining whether evi-
dence is unduly prejudicial is not whether it is damaging
to the defendant but whether it will improperly arouse
the emotions of the jury. . . . The trial court . . .
must determine whether the adverse impact of the chal-
lenged evidence outweighs its probative value.’’ (Inter-
nal quotation marks omitted.) Id., 378.
In Perry, this court noted: ‘‘Numerous courts have
recognized that evidence of an imminent financial bur-
den on the defendant is admissible for the purpose of
proving motive. . . . Financial condition and employ-
ment status may be relevant to a defendant’s motive to
commit a crime and, thus, are admissible on purely
nonconstitutional evidentiary grounds.’’ (Citation omit-
ted; internal quotation marks omitted.) State v. Perry,
supra, 58 Conn. App. 68–69. The defendant argues that
Perry limited the admissibility of such evidence to the
issue of motive and that the record shows that the state
did not proffer Ricciuti’s testimony for that purpose.
Consequently, the defendant argues, the testimony had
no probative value. Furthermore, he argues that the
admission of Ricciuti’s testimony impermissibly placed
a burden on him to prove that he had a legitimate source
for the money the state proved he had in his possession
or had recently spent. We are not persuaded.
We note at the outset that defense counsel conceded
that his objection to Ricciuti’s proposed testimony was
evidentiary in nature rather than one of constitutional
magnitude. He objected to the proposed testimony only
on the ground that it was more prejudicial than proba-
tive, and, although he argued briefly that admitting such
testimony would impermissibly shift the burdens of
proof and persuasion to the defendant, he did not sug-
gest that doing so would violate the defendant’s due
process rights. Moreover, this court previously has held
that evidence of a defendant’s financial condition or
employment status is admissible on purely nonconstitu-
tional evidentiary grounds. See State v. Perry, supra,
58 Conn. App. 68–69; see also State v. Rosa, supra,104 Conn. App. 376 (unpreserved claim that trial court
improperly admitted evidence showing that defendant
was unemployed at time of incident concerned eviden-
tiary and not constitutional matter, and was not review-
able). The defendant’s attempt to turn his evidentiary
claim into a constitutional one by arguing that the
admission of Ricciuti’s testimony concerning his lack
of reportable wages violated his due process rights by
unconstitutionally shifting the burden on him to prove
he had a legitimate source of income is thus unavailing.2
‘‘Simply [p]utting a constitutional tag on a nonconstitu-
tional claim will no more change its essential character
than calling a bull a cow will change its gender.’’ (Inter-
nal quotation marks omitted.) State v. Rosa, supra, 377.
We, thus, review the defendant’s evidentiary claim con-
cerning the admission of Ricciuti’s testimony for an
abuse of discretion.
As to the merits of the defendant’s evidentiary claim,
we conclude that the defendant misreads Perry and
that his reliance on it is misplaced. This court did not
state in Perry that evidence of lack of employment is
relevant only to motive. We merely stated that in that
case it was relevant to motive. See State v. Perry, supra,
58 Conn. App. 68–69. We see no reason why such evi-
dence could not be relevant to other issues such as
intent, or, as in this case, to assist the jury in determining
whether the defendant actually was engaging in the
conduct that constituted the crime. The fact that the
defendant had access to money despite having no
reportable wages, combined with the other evidence
presented by the state, makes it more likely that he
was engaged in drug trafficking to procure that money.
That evidence tends to make a fact more likely is all
that is required to make the evidence relevant. As this
court stated in a similar context: ‘‘Although evidence
of the defendant’s unemployment may [be] far from
conclusive, [e]vidence is not rendered inadmissible
because it is not conclusive. All that is required is that
the evidence tend to support a relevant fact even to a
slight degree . . . .’’ (Internal quotation marks omit-
ted.) State v. Rosa, supra, 104 Conn. App. 378–79. Ricci-
uti’s testimony thus had probative value.
Furthermore, the evidence was not unduly prejudi-
cial. Although evidence of a defendant’s chronic poverty
may improperly arouse the emotions of the jurors in
certain circumstances, ‘‘we recognize a distinction
between evidence of chronic poverty and evidence of
unemployment at a relevant time, as even a well-to-do
person may be unemployed at times.’’ State v. Rosa,
supra, 104 Conn. App. 379.
In the present case, the state presented evidence of
the defendant’s lack of reportable wages only from the
year prior to his arrest through the time of his arrest.
In addition, Ricciuti’s testimony was very brief, and he
conceded both on direct examination and on cross-
examination that the defendant could have had sources
of income, other than drug trafficking, that would not
have been reported to the department. His testimony
was not presented in a manner that improperly would
have aroused the emotions of the jurors or invoked any
feelings of bias, whether explicit or implicit. For these
reasons, we agree with the state that the trial court
acted within its discretion when it admitted Ricciuti’s
testimony concerning the defendant’s lack of report-
able wages.
Additionally, although it was not an abuse of discre-
tion to admit Ricciuti’s testimony, we further note that
such admission was not harmful. ‘‘In order to establish
reversible error on an evidentiary impropriety . . . the
defendant must prove both an abuse of discretion and
a harm that resulted from such abuse. . . . When an
improper evidentiary ruling is not constitutional in
nature, the defendant bears the burden of demonstra-
ting that the error was harmful.’’ (Citation omitted;
internal quotation marks omitted.) State v. Alexis, 194
Conn. App. 162, 170, 220 A.3d 38, cert. denied, 334
Conn. 904, 219 A.3d 800 (2019). ‘‘[W]hether [an improper
ruling] is harmless in a particular case depends upon
a number of factors, such as the importance of the
witness’ testimony in the prosecution’s case, whether
the testimony was cumulative, the presence or absence
of evidence corroborating or contradicting the testi-
mony of the witness on material points, the extent of
cross-examination otherwise permitted, and, of course,
the overall strength of the prosecution’s case. . . .
Accordingly, a nonconstitutional error is harmless
when an appellate court has a fair assurance that the
error did not substantially affect the verdict.’’ (Internal
quotation marks omitted.) Id.In the present case, the defendant has failed to meet
his burden of demonstrating that the admission of Ricci-
uti’s testimony concerning his lack of reportable wages
was harmful. First, the state’s case against the defen-
dant was strong. Pugh testified extensively about the
arrangement he had with the defendant whereby the
defendant gave Pugh a reduced price for drugs in
exchange for using Pugh’s apartment to sell them. The
state also presented evidence that drug paraphernalia
was found in Pugh’s apartment but that none was found
on the defendant or in his rental car. Moreover, the
state presented evidence that the defendant had $267
on him in small denominations, that he had seven wax
folds of heroin on him along with two dubs of cocaine,
that he had spent approximately $2500 on rental cars
in the months leading up to his arrest, and that a canine
officer twice had alerted on the defendant’s rental car,
indicating a residual odor of narcotics. The state, there-
fore, presented sufficient evidence that the jury reason-
ably and independently could have used to find the
defendant guilty of all three charges. Second, Ricciuti’s
testimony was of negligible importance to the state’s
case. As discussed previously in this opinion, the state
had a strong case, and the prosecutor referred to Ricci-
uti’s testimony only once during his closing argument
and not at all during his rebuttal argument. It, thus,
cannot be said that Ricciuti’s testimony was vital to the
state’s case. Third, the defendant had ample opportunity
to cross-examine Ricciuti. Ricciuti, in fact, testified on
cross-examination that income from self-owned busi-
nesses, Social Security disability benefits, rental proper-
ties, and lottery winnings were not reportable wages.
In light of these considerations, even if we were to
assume that the trial court abused its discretion in
admitting Ricciuti’s testimony, we would conclude that
any error was harmless. The defendant has failed to
meet his burden of proving that it was more probable
than not that the admission of Ricciuti’s testimony sub-
stantially affected the verdict.
II
We next turn to the defendant’s claim that the trial
court erred by admitting impermissible expert opinion
testimony. Specifically, he argues that the court imper-
missibly permitted the state’s expert, Scott Flockhart,
a detective in the New Milford Police Department, to
opine on the ultimate issue of the case, namely, whether
the defendant intended to sell narcotics. In response,
the state argues that the prosecutor elicited testimony
from Flockhart concerning only general factors that he
would consider when deciding to charge a person with
possession of narcotics with intent to sell. The state
further contends that such testimony was proper
because the prosecutor did not ask specifically for
Flockhart’s opinion about whether the defendant pos-
sessed the narcotics with the intent to sell them. We
agree with the state.
The following additional facts are relevant to this
claim. During trial, the state presented the expert testi-
mony of Flockhart, who testified about his extensive
experience throughout his career dealing with narcot-
ics. During his testimony, Flockhart explained that peo-
ple who traffic narcotics frequently use rental cars to
avoid detection. He also testified that narcotics traffick-
ers often enlist intermediaries in an effort to insulate
themselves from the actual criminal activity.
The prosecutor then attempted to ask Flockhart a
hypothetical question by asking him: ‘‘If you came
across a person with two $20 bags of crack [cocaine]
and seven bags of heroin . . . would you be able to
say whether that person possessed those drugs to use
or possessed them with an intent to sell them?’’ Defense
counsel objected to this question on the ground that it
‘‘[went] to the ultimate issue.’’ Outside the jury’s pres-
ence, defense counsel argued that the ‘‘hypothetical
mirrors the facts of the case so closely that essentially
the witness [was] being asked to give an opinion on
the ultimate issue in this case.’’ The court stated that
the question, as phrased, ‘‘[came] too close to asking
this expert as to whether he [had] an opinion as to
whether someone who’s exactly situated like [the]
defendant was engaged in possession of narcotics with
intent to sell.’’ The court cautioned the state to ‘‘[ask]
the questions in a more general way . . . .’’ Shortly
thereafter, the following exchange occurred between
the prosecutor and Flockhart:
‘‘Q. What type of factors do you look for, what type
of things do you consider [when deciding to charge
a person with possession of narcotics with intent to
sell] . . . .
‘‘A. We look [at] how the drugs are packaged [and]
quantities. [We] look for paraphernalia. If somebody is
an addict, they’re most likely gonna have some type of
paraphernalia on them.
‘‘Q. Okay. Well, in your experience, do addicts gener-
ally, are they—are they ever far from their para-
phernalia?
‘‘A. Usually not, no.
‘‘Q. [As] to how it’s packaged, what are you looking
for, specifically?
‘‘A. Whether it’s . . . broken down . . . to smaller
quantities in smaller bags.
‘‘Q. Smaller quantities would mean what, [regarding]
that decision-making process?
‘‘A. Would lead towards the possession with the intent
to sell, because that’s usually how it’s broken up for
street level distribution.
‘‘Q. What else would you look for?
‘‘A. You would take a look at [the person’s hygiene]
. . . track marks on their arms . . . [and] if they’re
gonna be getting dope sick.
***
‘‘Q. What about money, is that a consideration at all?
‘‘A. Yes.
‘‘Q. Could you tell the jury how that would weigh in?
‘‘A. Most addicts when they go to buy . . . their drug
of choice . . . usually [they] go with an amount of
money to buy a certain amount of that drug . . . if
they have $100 on [them], they aren’t gonna go and buy
just $20 worth. . . .
‘‘Q. Yes or no—well, if you found a large amount of
money on a person versus a negligible amount of
money, how would that factor into your decision?
‘‘A. Most addicts aren’t gonna have a large amount
of money. . . .
‘‘Q. And what about the denominations of money,
would that factor into your decision at all . . . ?
‘‘A. Yes.’’
Defense counsel did not object to any of the questions
asked in this exchange. Following cross-examination,
the prosecutor elicited additional testimony from Flock-
hart in which Flockhart testified that he does not focus
on a single factor when deciding whether to charge a
person with possession of narcotics with intent to sell
but, rather, that he looks at all these things in the
aggregate.
‘‘An expert witness ordinarily may not express an
opinion on an ultimate issue of fact, which must be
decided by the trier of fact. . . . Experts can [however]
sometimes give an opinion on an ultimate issue where
the trier, in order to make intelligent findings, needs
expert assistance on the precise question on which it
must pass.’’ (Internal quotation marks omitted.) Hodges
v. Commissioner of Correction, 187 Conn. App. 394,
404, 202 A.3d 421, cert. denied, 331 Conn. 912, 203 A.3d
1246 (2019). ‘‘A trial court has broad discretion in admit-
ting expert testimony concerning the sale of illicit
drugs.’’ (Internal quotation marks omitted.) State v. Nel-
son, 17 Conn. App. 556, 565, 555 A.2d 426 (1989). For
example, ‘‘[e]xpert witnesses may testify that certain
behavior by a defendant or his possession of particular
items is conduct similar to that engaged in by the typical
drug dealer. . . . A police officer, who is qualified as
an expert witness, may even testify that, in light of
the officer’s personal observations of his conduct, it
appeared that a defendant was engaged in narcotics
sales.’’ (Citation omitted.) State v. Vilalastra, 207 Conn.
35, 45, 540 A.2d 42 (1988). It also is proper for a prosecu-
tor ‘‘to ask [a] police officer whether, in his expert
opinion it is the common practice of drug sellers . . .
to work with the items found. . . . An expert may give
his opinion about the quantity of narcotics that a drug
dealer might possess.’’ (Citation omitted.) State v. Nel-
son, supra, 566.
In the present case, we agree with the state that
the trial court did not abuse its discretion in admitting
Flockhart’s testimony.3 During trial, Flockhart merely
testified about the general behavior of drug users and
drug traffickers. For example, Flockhart testified that
drug users usually do not have large sums of money
on them and that they are never far from their drug para-
phernalia.
He also testified that, based on his experience, drug
traffickers will often break down their narcotics into
smaller packages to make distribution easier. Such tes-
timony about the conduct of drug users and traffickers
is entirely permissible. See State v. Vilalastra, supra,
207 Conn. 45; State v. Nelson, supra, 17 Conn. App. 566.
Moreover, following defense counsel’s objection, the
prosecutor never asked Flockhart for his particularized
opinion on the significance of the defendant’s posses-
sion of money and drugs, and none of Flockhart’s
answers to the prosecutor’s questions can be classified
as an expression of his opinion on that topic. Flockhart,
therefore, never expressed his opinion on the ultimate
issue before the jury, namely, whether the defendant
intended to sell narcotics. Accordingly, we conclude
that the trial court did not abuse its discretion when it
permitted Flockhart’s testimony.
Furthermore, even if we were to assume that the
admission of Flockhart’s testimony was an abuse of
discretion, the defendant again has failed to show that
its admission was harmful. ‘‘The improper admission
of opinion testimony that answers a question that a jury
should have resolved for itself is not of constitutional
significance and is a type of evidentiary error. . . . If
the testimony is deemed to have answered a question
that was solely for the jury’s determination, the burden
is on the defendant to show that the admission more
probably than not affected the outcome of the verdict.’’
(Citation omitted.) State v. Wright, 47 Conn. App. 559,
563, 707 A.2d 295, cert. denied, 244 Conn. 917, 714 A.2d
8 (1998).
Here, the state presented ample evidence indepen-
dent of Flockhart’s testimony from which the jury rea-
sonably could have concluded that the defendant
intended to sell the narcotics in his possession. As pre-
viously observed, Pugh testified extensively about his
dealings with the defendant. Officer Faulkner also cor-
roborated Pugh’s testimony by testifying that he had
observed the defendant coming and going from Pugh’s
apartment for months, and another police officer testi-
fied that a canine officer had alerted for drugs on the
trunk and door of the defendant’s rental car. Moreover,
the state presented evidence that the defendant had
spent approximately $2500 on rental cars in the months
leading up to his arrest, despite having no reportable
income, and that the police found $267 in small bills
on the defendant when they arrested him. Although
the defendant argues that Pugh’s testimony should be
discredited because he was a compromised witness,
witness credibility is solely the function of the jury, and
it was well within the jury’s province to find Pugh’s
testimony credible. See State v. Michael T., 194 Conn.
App. 598, 621, 222 A.3d 105 (2019) (‘‘it is the [jury’s]
exclusive province to weigh the conflicting evidence
and to determine the credibility of witnesses’’ (internal
quotation marks omitted)). Accordingly, we conclude
that, even if we were to assume that the trial court
improperly admitted Flockhart’s testimony, the defen-
dant has failed to meet his burden of proving that the
admission of his testimony more probably than not
affected the verdict.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Officer Faulkner testified at trial that a ‘‘dub’’ is a piece of crack cocaine
weighing .2 grams.
2
Although the state has not raised the issue of preservation, we also note
that the defendant’s claim that the court erred by permitting Ricciuti to
testify about his lack of reportable wages in violation of his due process
rights was not preserved properly. ‘‘Appellate review of evidentiary rulings
is ordinarily limited to the specific legal [ground] raised by the objection
of trial counsel. . . . To permit a party to raise a different ground on appeal
than [that] raised during trial would amount to trial by ambuscade, unfair
both to the trial court and to the opposing party.’’ (Internal quotation marks
omitted.) State v. Stenner, 281 Conn. 742, 755, 917 A.2d 28, cert. denied,
552 U.S. 883, 128 S. Ct. 290, 169 L. Ed. 2d 139 (2007). Here, defense counsel
conceded that his objection to Ricciuti’s testimony was evidentiary in nature,
and failed to make any argument that the admission of such testimony
would violate the defendant’s constitutional rights. Consequently, the court
ruled on the admissibility of Ricciuti’s testimony on purely evidentiary
grounds. The defendant’s claim on appeal that the admission of such testi-
mony violated his due process rights is thus unpreserved. See id. (holding
that defendant’s constitutional claim was unpreserved when defendant
objected on different, evidentiary basis during trial). Although a defendant
is entitled to review of an unpreserved constitutional claim pursuant to
State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989), we have
concluded that the defendant’s claim is not constitutional in nature. Accord-
ingly, we review the defendant’s claim concerning Ricciuti’s testimony on
the merits of the evidentiary ground raised at trial.
3
Although the state also has not raised the issue of preservation for this
claim, we note that the defendant’s claim that the trial court improperly
admitted Flockhart’s testimony was not preserved properly. Defense counsel
objected to the prosecutor’s initial line of questioning when he attempted
to ask Flockhart a hypothetical that closely mirrored the facts of the case.
Defense counsel, however, failed to object to the customs and behavior
questions that the prosecutor asked after the court instructed him to ask
his questions in a more general way. Because defense counsel failed to object
to this line of questioning, the defendant’s claim concerning Flockhart’s
testimony following his counsel’s objection is unpreserved. See State v.
Cromety, 102 Conn. App. 425, 430, 925 A.2d 1133 (defendant’s claim concern-
ing testimony of expert witness was unpreserved evidentiary claim that was
not reviewable because defendant failed to object timely to testimony), cert.
denied, 284 Conn. 912, 931 A.2d 932 (2007). Although we are not required
to review unpreserved evidentiary claims; see State v. Omar, 136 Conn.
App. 87, 98–99, 99 n.3, 43 A.3d 766, cert. denied, 305 Conn. 923, 47 A.3d 883(2012); we, nevertheless, address the defendant’s claim on its merits.