STATE v. ALBERTO BRUNO, SC 18251/18252

Judicial District of Fairfield

     Criminal; Whether Trial Court's "Not Guilty" Finding on Part B Information is Judgment of Acquittal that Bars Appellate Review Under Double Jeopardy Principles; Whether Trial Court Properly Concluded that Defendant was not a Persistent Drug Offender; Whether the Evidence was Sufficient to Support  Defendant's Convictions for Drug Offenses.  While surveilling the parking lot of an apartment building, Bridgeport police officer Gregory Iamartino observed the defendant take part in what he believed to be a drug transaction.  William Simpson, an undercover officer, was then sent to the parking lot to make a drug purchase.  Simpson, who was wearing a listening device, approached the defendant and told him that he wanted to purchase heroin.  The defendant told Simpson that he did not have any more drugs and asked him to leave.  Soon thereafter, however, the defendant asked an acquaintance of his, Duane Merritt, to "check this guy [Simpson] out."  The defendant then walked to a parked Ford Taurus, opened its trunk using the keys hung around his neck and removed two blue folders containing heroin.  Merritt took the folders and went to talk to Simpson.   Once there, Merritt patted Simpson's chest and felt the listening device.  At this point, other police officers were sent into the parking lot, and the defendant and Merritt, among others, were arrested.  The defendant was charged with, inter alia, sale of a narcotic substance and possession of a narcotic substance with intent to sell.  In a part B information, the state alleged that the defendant had previously been convicted of a drug-related offense and, therefore, should be sentenced as a persistent drug offender.  In the information, the state cited General Statutes § 21a-278 (b), which provides that "for a first offense [of § 21-278 (b), a person] shall be imprisoned not less than five years nor more than twenty years; and for each subsequent offense [a person] shall be imprisoned not less than ten years nor more than twenty-five years."  After trial, the jury found the defendant guilty of the aforementioned crimes.  Subsequently, the trial court found the defendant "not guilty" of being a persistent drug offender, reasoning that the persistent offender statutes found in title 53a of the General Statutes do not apply to prosecutions under § 21a-278, which contains its own sentencing provisions.  On appeal, the state claims that the trial court's judgment for the defendant on the part B information was predicated on the improper assumption that the defendant was charged as a persistent felony offender under § 53a-40, when, in fact, the defendant was charged with being a subsequent drug offender under § 21a-278 (b).  Further, the state maintains that although the trial court used the words "not guilty" when rendering judgment on the part B information, its claim is not barred by the constitutional prohibition against double jeopardy because the judgment does not constitute an acquittal since it was based on the legal conclusion that § 53a-40 was not applicable, and not on the insufficiency of the evidence.  The state further asserts that, if the Supreme Court reverses the trial court's "not guilty" determination, the trial court's reconsideration of the persistent drug offender charge on remand would not violate the double jeopardy clause because a second "fact-finding" hearing would not be necessary.  The defendant also appeals, claiming that the evidence was insufficient to support his convictions on the drug charges.