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STATE v. SINCLAIR—DISSENT

BEACH, J., concurring in part and dissenting in part.

I agree with much of the majority’s well reasoned opinion. I respectfully dissent, however, with respect to the

majority’s conclusion that the admission of the testimony of Sergeant Gary Angon of the Waterbury Police

Department regarding the location of the inspection of

the Jeep involved in the incidents at issue was harmless.

Angon’s testimony regarding the inspection quite

clearly was testimonial hearsay, and, thus, its admission

violated the confrontation clause. See Crawford v.

Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 158 L. Ed.

2d 177 (2004). Angon testified that an unnamed person

from the Waterbury Police Department had acquired

information regarding the Jeep’s inspection from an

unnamed person working with the New York State

police. This information was acquired in the course of

Angon’s investigation of the crime under circumstances

that obviously contemplated its use in the prosecution.

The defendant, Casey Sinclair, did not have an opportunity to cross-examine the unnamed person who

requested this information, nor did he have the opportunity to cross-examine the unnamed person who

responded. The information reportedly gathered from

the New York police—that the Jeep’s registration number showed that it had been inspected at a garage adjacent to the defendant’s business—was offered by the

state at trial to prove the truth of the matter asserted.

The admission of Angon’s testimony relaying the information about the inspection, then, quite clearly violated

the defendant’s rights under the confrontation clause

of the sixth amendment.

The majority recognizes the problem and assumes,

for the purpose of analysis, that the confrontation

clause was violated, but then concludes that the introduction of the evidence was harmless. An examination

of the record compels me to conclude that the state

has not met its burden to show that the admission of

the testimony was harmless beyond a reasonable doubt.

As the majority notes, the prosecution sought to prove

guilt under a theory of constructive possession, because

the narcotics were found in a Jeep that was not in the

defendant’s exclusive possession. Underthis theory,the

prosecution was required to prove that ‘‘the defendant

knew the character of the substance, knew of its presence and exercised dominion and control over it.’’

(Internal quotation marks omitted.) State v. Martin, 285

Conn. 135, 149, 939 A.2d 524, cert. denied, 555 U.S. 859,

129 S. Ct. 133, 172 L. Ed. 2d 101 (2008).

It was not necessary for the state to show ownership

or exclusive control of the Jeep, and the defendant

could have been found guilty, of course, without the

evidence in question. But it is undeniable, from the
record in this case, that the prosecutor used the inferred

close connection between the defendant and the Jeep to

full advantage. In his closing argument, the prosecutor

repeatedly referred to the location of the Jeep’s inspection in an effort to establish that the defendant knew

about and exercised dominion and control over the

heroin hidden in the Jeep and that the defendant fit

the profile of a drug dealer.

The prosecutor argued, ‘‘I have to prove three things.

That [the defendant] was in possession of heroin, he

knowingly possessed the heroin, [and] he possessed it

with intent to sell.’’ In presenting his argument on the

second element, the prosecutor began by arguing:

‘‘Knowingly possessed. It’s his Jeep. There’s some dispute about that. . . . Winsome Lawrence testified nine

times she came to Connecticut . . . every time he

picked her up in that Jeep. There’s also the evidence

about the Jeep that links that Jeep to being inspected

at Sinclair Enterprises, his garage right next to his

business.’’ (Emphasis added.)

The prosecutor stressed not only the elements of

the crime, but also that the defendant’s behavior was

consistent with that of a drug dealer: he ‘‘want[ed] to

separate himself from the drugs,’’ a behavior consistent

with that of a narcotics dealer, but ‘‘there was a mistake

. . . to register a car in New York, it has to go through

an inspection, and the inspection for the car was done

at [the defendant’s] place of business. . . . There’s a

connection, right there, to [the defendant]. He didn’t

separate himself good enough.’’

The state argues that Angon’s testimony likely did

not influence the jury in reaching its judgment because

‘‘the state’s case against [the defendant] was strong,

independent of Angon’s testimony about the inspection

location.’’ A review of the record, however, shows that

the state’s evidence was less than overwhelming on the

question of whether the defendant knew about and

exercised dominion and control over the 10,000 bags of

heroin ultimately found in the Jeep. The direct evidence

regarding the defendant’s guilt was primarily Lawrence’s testimony; the state conceded that ‘‘the critical

issue in the case was the credibility of both Lawrence

and the defendant.’’ Lawrence testified that the defendant owned the Jeep, that he had picked her up in the

Jeep on several occasions, and that she had seen him

open the Jeep’s center console, pull a string, and

retrieve two bags of heroin from inside. The defendant,

by contrast, testified that Lawrence owned the Jeep

and that he did not know that there were drugs hidden

in the car. On the issue of knowledge about and dominion and control over the Jeep’s contents, Angon’s testimony regarding the inspection was the only

documentary and at least superficially objective evidence tending to suggest that Lawrence’s testimony was

more likely true than the defendant’s testimony. The
testimonial hearsay was not cumulative and was not

corroborated by evidence other than Lawrence’s testimony.

I stress that the hearsay, surely relevant to the issue

of constructive possession, was used to perhaps greater

effect to show more generally that the defendant was

a drug dealer. A theme of the prosecution was that the

defendant created a distance between the actual dealing

and himself, so that others would be blamed if the

enterprise faltered. In pursuit of that strategy, he ‘‘used’’

Lawrence and a false registration for the Jeep.1 Therefore, the admission of Angon’s testimony was not harmless beyond a reasonable doubt.

If the error were merely evidential, there may be a

good argument that the defendant had not proved harm.

But on the record in this case, I respectfully cannot

agree that the error was harmless beyond a reasonable

doubt. The prosecutor used the evidence to hammer

home the defendant’s nefarious ways.

Accordingly, I would reverse the judgment of the trial

court and remand the case for a new trial.2

1 The prosecutor argued: ‘‘The tan Jeep Liberty. His car. Maybe not registered to his name, but why not? He wants to separate himself from the

drugs. Let’s talk about the connections with the tan Jeep Liberty to [the

defendant]. It’s if—if you put it in some—well, it’s in someone else’s name.

But there was a mistake. Because there—to register a car in New York, it

has to go through an inspection, and the inspection for the car was done

at [the defendant’s] place of business. . . .

‘‘So, where’s it inspected? Whose car goes there for service? Winsome

Lawrence because [the defendant] sent her there. . . . Well, that’s convenient, it’s right next door. And Winsome Lawrence said it was his garage,

okay, and that’s where the inspection for the Jeep was done. There’s a

connection, right there, to [the defendant]. He didn’t separate himself good

enough. . . .

‘‘What is this information about the carfrom [the defendant]; it’s consistent

with a drug dealer trying to separate himself from the drugs in that car. It’s

consistent in the manner in ways in which they operate. What connection

does Winsome Lawrence have to the car? [The defendant.] She testified at

length, it’s not her car; the comment about the Jeep, she testified at length,

it wasn’t her car, that she owned a black Oldsmobile . . . .

***

‘‘He wants to use her again; don’t let him do it. His Jeep Liberty, he’s

dropping a car, everything he does is consistent with how narcotics dealers

operate at that level. It’s his heroin, it’s his money, and evidence shows

beyond a reasonable doubt he’s guilty of this charge.’’

2

I would not reach the claim of prosecutorial impropriety because I would

not anticipate that the conduct would occur on retrial. I concur with the

majority as to part III of its opinion.