State v. Eichstedt

Spallone, J.

This is an appeal from the defendant’s conviction, after a jury trial, of illegal possession of cocaine with intent to sell and four counts of illegal sale of cocaine in violation of General Statutes § 21a-277 (a). The defendant claims that the trial court erred (1) in instructing the jury concerning the defense of entrapment, (2) in concluding that there was sufficient evidence to prove the defendant guilty beyond a reasonable doubt, (3) in concluding that there was probable cause to issue a search warrant for the person and the motor vehicle of the defendant, and (4) in refusing to allow a witness to invoke his fifth amendment privilege against self-incrimination in the presence of the jury. We find no error.

The jury could have reasonably found the following facts. On June 8,1987, Robert Schoolnick was arrested on a motor vehicle charge and was subsequently found to be in possession of cocaine. He informed the arresting officers that he had obtained the cocaine from the defendant, Andrea Eichstedt.

Officers of the statewide narcotics task force were notified of Schoolnick’s arrest and his willingness to cooperate in a proposed investigation of the defendant. On June 10, 1987, in cooperation with the investigating officers, Schoolnick made a controlled buy of one-half of a gram of cocaine from the defendant at her place of employment in Canaan. On June 22, accompanied by task force undercover agent Trooper Leslie Norcia, Schoolnick bought more cocaine from the defendant.

Equipped with a body microphone, Norcia made purchases of cocaine from the defendant at her place of employment on June 24, June 25 and July 7,1987. At a prearranged meeting in Canaan on July 1,1987, Norcia made one purchase of cocaine from inside the defendant’s car.

On July 9, 1987, Norcia called the defendant to set up another transaction. The defendant told Norcia that she had no cocaine but that she was going to replenish her supply the next night. A search warrant was issued for the defendant’s car and person and on July 10,1987, the defendant was placed under surveillance. The police followed the defendant from her place of employment to a carnival in Lakeville where she met Alena Milton and Scott Higgins. The three eventually proceeded in the defendant’s car to the home of Milton’s stepsister in Millbrook, New York, where the defendant and Milton each received from Michael Sciarra a plastic bag containing cocaine.

The defendant, Milton and Higgins then returned to Connecticut in the defendant’s car and were stopped by the police upon reentering the state. Milton was driving, Higgins was riding in the front passenger seat and the defendant was in the right rear seat. The search conducted pursuant to the warrant led to the discovery of a plastic bag containing one-half of an ounce of cocaine located under the right rear seat. Seized in the search of the defendant’s vehicle, person and pocketbook were $1274.01, a mirror with traces of a white powdery substance, a cut plastic straw containing a white powder residue, pills, a syringe and other drug paraphernalia. Our review of the record, transcripts and briefs discloses that the defendant’s claims of error are without merit.

I

The defendant first claims that the trial court erred in omitting two sentences concerning predisposition to commit crimes from her requested charge on the defense of entrapment.¹ A request to charge, relevant to the issues and correctly stating the law, must be honored. State v. Casey, 201 Conn. 174, 178, 513 A.2d 1183 (1986). A requested charge, however, need not be given in its exact language if given in substance. Id.; State v. Shindell, 195 Conn. 128, 143, 486 A.2d 637 (1985). There is no error if the instruction, examined as a whole, fairly and adequately presents the case to the jury. State v. Jenkins, 8 Conn. App. 35, 40, 510 A.2d 1370 (1986); State v. Shindell, supra.

The trial court’s charge to the jury on entrapment, as the defendant concedes in her reply brief, was in the precise language of the statute, General Statutes § 53a-15, entitled “Entrapment as defense.” The trial court explained in depth the basic principles of entrapment and the charge included an instruction on the element of the defendant’s intent or predisposition to commit the crimes. The court drew the distinction between a trap for the unwary innocent and a trap for the unwary criminal. State v. McNally, 173 Conn. 197, 202-203, 377 A.2d 286 (1977); State v. Fine, 159 Conn. 296, 299, 268 A.2d 649 (1970). The charge on entrapment was completely adequate without the defendant’s requested additions.

II

The defendant next claims that there was insufficient evidence to prove her guilty beyond a reasonable doubt. We disagree. The standard for appellate review upon a challenge to the sufficiency of the evidence is whether a rational trier of fact could have concluded that the cumulative effect of the evidence, viewed in the light most favorable to sustain the verdict, established guilt beyond a reasonable doubt. State v. Simino, 200 Conn. 113, 116-17, 509 A.2d 1039 (1986); State v. Holder, 18 Conn. App. 184, 194, 557 A.2d 553 (1989). The jury is entitled to draw reasonable and logical conclusions from the facts proved. State v. Carter, 196 Conn. 36, 44, 490 A.2d 1000 (1985).

The defendant’s one sentence statement in support of this claim in her brief does not specify in what way the evidence at trial was deficient. As to the four counts of selling cocaine, the defendant does not dispute that she sold cocaine to Norcia on June 24, June 25, July 1 and July 7, 1987. If the defendant is challenging the evidence presented on the one count of possession, the jury could reasonably have found the following facts. The police had the defendant, her car and her companions under surveillance throughout the day and evening of July 10 and into the early morning hours of July 11, 1987. Higgins and Sciarra both testified that the defendant obtained a plastic bag from Sciarra on July 10 while in New York. When the defendant’s car was stopped at the Connecticut border and searched, a plastic bag containing cocaine was found under the right rear passenger seat where the defendant was seated alone. Although the defendant denied at trial that the cocaine found was hers, the evidence was sufficient to support the jury’s finding beyond a reasonable doubt that the cocaine was in her possession.

Ill

The defendant’s third claim is that the court erred in denying her motion to suppress the fruits of the search of her car and person. According to the defendant, the affidavit underlying the search warrant failed to supply adequate bases of probable cause to believe (1) that the informant, Schoolnick, was reliable, and (2) that the items to be seized would be on her person or in her vehicle at the time of the search.

Our review of the affidavit reveals that all the facts provided to establish grounds for a search and seizure warrant were supplied by the affiant, Norcia. The defendant, in her brief and reply brief, mistakes the contents of the affidavit; the information was not supplied by Schoolnick and his reliability is therefore not in issue.

Probable cause to search exists if there is probable cause to believe (1) the items to be seized relate to criminal activity or would help in apprehending or convicting a particular criminal, and (2) the items to be seized are where they are alleged to be. State v. Morrill, 205 Conn. 560, 564-65, 534 A.2d 1165 (1987); State v. DeChamplain, 179 Conn. 522, 528-29, 427 A.2d 1338 (1980). The defendant does not deny that the warrant listed items related to criminal activity but rather claims that there was an insufficient basis to believe the contraband would be in her car. We disagree.

The affidavit states that Norcia purchased cocaine from the defendant on four occasions over a three week period, three times at the defendant’s place of employment and once from inside the defendant’s car in a parking lot. The defendant herself told Norcia of the planned trip to obtain more cocaine. From these facts, we conclude that the judge determining probable cause could reasonably have inferred that the defendant was engaged in an ongoing business of selling cocaine and that she transported the drugs in her vehicle. The court, therefore, properly denied the defendant’s request to suppress the evidence.

IV

The defendant’s last claim is that the court erred in refusing to allow her to call Schoolnick as a defense witness, notwithstanding that Schoolnick would have invoked his fifth amendment privilege not to testify. This claim is meritless. A witness should not be put on the stand merely to have him exercise his privilege not to incriminate himself. United States v. Martin, 526 F.2d 485, 487 (10th Cir. 1975); Bowles v. United States, 439 F.2d 536, 541-42 (D.C. Cir. 1970), cert. denied, 401 U.S. 995, 91 S. Ct. 1240, 28 L. Ed. 2d 533 (1971); State v. Bryant, 202 Conn. 676, 681-82, 523 A.2d 451 (1987). “The rule is grounded ... in the danger that a witness’s invoking the Fifth Amendment in the presence of the jury will have a disproportionate impact on their deliberations.” Bowles v. United States, supra; State v. Bryant, supra, 683-84. The defendant has cited no authority to the contrary or distinguished her case from existing precedent. We decline to invent an exception to a sound and long-standing rule.

There is no error.

In this opinion, Daly, J., concurred.

1 The defendant’s request to charge would have included the statements, “Innocent means the absence of a predisposition or state of mind which readily responds to the opportunity furnished by the officer or his agent (informant) to commit the forbidden act with which the accused is charged” and “[e]vidence of unlawful inducement may be found where the police or an informant acting on their behalf appeal to the defendant’s sense of friendship or sympathy or where they repeatedly or persistently solicit the defendant to commit the crimes charged.”