State of Connecticut v. 2005 (2013)

MEMORANDUM OF DECISION

This is an asset forfeiture proceeding matter in which the State of Connecticut (“State”) has filed a petition with the court seeking forfeiture of property and money in accordance with General Statutes § 54–36h.   The following memorandum will serve as an articulation of the court's July 2, 2013 decision and will discuss the Court's findings of fact and conclusions of law with respect to this petition.

I. FACTS AND PROCEDURAL HISTORY

On June 15, 2011, officers from the New Britain Police Department arrived at 55 Brittany Farms Road, an apartment complex in New Britain, Connecticut, to serve arrest warrants on an individual named Alrick Evans.   They had information that Mr. Evans was inside 55 Brittany Farms Road and they waited outside for Mr. Evans to exit the building.   As they were waiting, they saw Mr. Evans leaving the building.   Mr. Evans was approached by one of the officers and he began to run towards the back of the building.   As he was running, he threw a plastic baggie that hit the building and then fell to the ground.   Mr. Evans was apprehended and placed under arrest pursuant to the arrest warrants.

The police also located the plastic baggie that Mr. Evans threw.   It was later determined that the baggie contained 31.4 grams of cocaine.   According to the police, the value of the cocaine was approximately $3,100.   Mr. Evans was subsequently arrested and charged with possession of narcotics and possession with intent to sell.

Mr. Evans was searched in connection with his arrest.   The police found on Mr. Evans' person $490 in United States currency, two Citizens Bank debit cards, a cell phone and a state auction card.   Mr. Evans gave the police consent to search the apartment he was exiting prior to his arrest.   The police searched this apartment, apartment 104, and found, among other things, $7,035 in United States currency, a digital scale and a key to a Nissan Maxima vehicle.   The police later obtained a warrant to seize the bank accounts associated with the debit cards found on Mr. Evans' person when he was arrested.   The amount of money in those accounts was $37,594.79 in United States currency.

On July 25, 2011, the state filed a petition with the court seeking forfeiture of certain property seized in connection with Mr. Evans' June 15, 2011 arrest.   The property that is the subject of this petition is a 2005 Nissan Maxima vehicle, $490 in United States currency seized from Mr. Evans' person, $7,035 in United States currency seized from Mr. Evans' apartment and $37,594.79 in United States currency seized from the Citizens Bank accounts.

Mr. Evans was identified as an interested person for purposes of this action.   Notice of the hearing in connection with this action was sent via certified mail to Mr. Evans and an appearance was filed on his behalf on or about September 21, 2011.

On November 16, 2011, Mr. Evans entered a plea of guilty to sale of narcotics pursuant to General Statutes § 21a–278(b) as part of a global resolution to his pending criminal matters.   He received a sentence of five years to serve followed by five years special parole.

On January 10, 2012, the State served Mr. Evans with interrogatories and requests for production in connection with this matter.   On or about March 23, 2012, Mr. Evans responded to the State's discovery requests.

The court conducted a three-day hearing on this matter as well as another asset forfeiture matter involving Mr. Evans (CV11–831).   During the hearing, Mr. Evans' ex-girlfriend, several law enforcement officials from the New Britain and Bristol police departments, a notary public and a former acquaintance of Mr. Evans testified.   Although the State called Mr. Evans to testify at the hearing, he refused to do so.

II. LEGAL DISCUSSION

An asset forfeiture proceeding is not a criminal proceeding;  it is a civil suit in equity in which the State seeks forfeiture of money or property.   General Statutes § 54–36h(b).  In such an action, the guilt or innocence of the owner of the property is not at issue.   The only issue is whether the property was used in violation of the law.  State v. One 1977 Buick Automobile, 196 Conn. 471, 485, 493 A.2d 874 (1985);  State v. Connelly, 194 Conn. 589, 592, 483 A.2d 1085 (1984);  State v. Bucchieri, 176 Conn. 339, 345, 407 A.2d 990 (1978);  State v. Gaudio, 19 Conn.App. 588, 591–92, 562 A.2d 1156 (1989);  State v. One 1981 BMW Automobile, 15 Conn.App. 589, 596, 546 A.2d 879 (1988).

General Statutes § 54–36h, the asset forfeiture statute, sets forth the types of property that are subject to forfeiture.   In the present case, the State argues that the above-referenced property is subject to forfeiture under General Statutes § 54–36h(a) which provides, in relevant part, for forfeiture of:

(1) All moneys used, or intended for use, in the procurement, manufacture, compounding, processing, delivery or distribution of any controlled substance, as defined in subdivision (9) of section 21a–240;

(2) All property constituting the proceeds obtained, directly or indirectly, from any sale or exchange of any such controlled substance in violation of section 21a–277 or 21a–278;

(3) All property derived from the proceeds obtained, directly or indirectly, from any sale or exchange for pecuniary gain of any such controlled substance in violation of section 21a–277 or 21a–278;

(4) All property used or intended for use, in any manner or part, to commit or facilitate the commission of a violation for pecuniary gain of section 21a–277 or 21a–278;

(5) All property constituting, or derived from, the proceeds obtained, directly or indirectly, by a corporation as a result of a violation of section 53a–276, 53a–277 or 53a–278.

In an asset forfeiture proceeding, the State has the burden of proving all material facts by clear and convincing evidence.  “[T]he burden of proof under the clear and convincing evidence standard is sustained if the evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist.”  (Internal quotation marks omitted.)  Slack v. Greene, 294 Conn. 418, 437 n.11, 984 A.2d 734 (2009).

Mr. Evans strongly contends that the property that is the subject of this proceeding is his and that he is legally entitled to it.   Mr. Evans, however, refused to present evidence or testimony to establish his right to the property, despite numerous opportunities to do so.   The State served Mr. Evans with interrogatories and requests for production dated January 9, 2012 ¹ and January 10, 2012 seeking information that would establish Mr. Evans' right to the subject property.   Mr. Evans, however, did not properly respond to the discovery requests.   When asked to produce documents and records to establish his income for 2010 and 2011, bank account checks and/or statements to establish his financial status and documents to support his claim of ownership to the 2005 Nissan Maxima, he either didn't respond or noted “objections” to the State's requests.   Similarly, when asked certain questions about the property that is the subject of this proceeding, Mr. Evans noted “objections” to these interrogatories.   These “objections,” however, were not made in accordance with rules of practice and were not filed with the court as required by Practice Book §§ 13–8 and 13–10.

Mr. Evans was also given the opportunity to testify, but he refused to do so.   When called by the State as a witness, he invoked his fifth amendment right against self-incrimination and refused to answer any questions raised by the State.   He refused to testify despite being canvassed by the court and advised that in an asset forfeiture proceeding, no testimony offered or evidence produced could be used against him except under limited circumstances.²  Although the privilege against self-incrimination applies in a civil case as well as in a criminal case, the privilege does not preclude the drawing of adverse inferences against a party in a civil action if the party invokes the privilege and refuses to testify.   C. Tait & E. Prescott, Connecticut Evidence (4th Ed.2008) § 5.5.2, p. 223;  see also Olin Corp. v. Castells, 180 Conn. 49, 53–54, 428 A.2d 319 (1980).

The undisputed evidence establishes that Mr. Evans is a convicted drug dealer.   Although he occasionally sold used cars, he also sold illegal drugs.   When arrested on June 15, 2011, he was found in possession of crack cocaine, a digital scale and a sizeable amount of cash, items consistent with the drug trade.   The court finds that the state has met its burden of proof with regard to the $490 that was seized from Mr. Evans' person on June 15, 2011.   The court similarly finds that the state has met its burden with regard to the $7,035 that was seized from 55 Brittany Farms Road, Apartment 104, in New Britain, Connecticut on that same date.   The Court finds that there are no statutory or other exemptions that would preclude this money from being forfeited to the State.   Accordingly, the court orders this money to be forfeited to the State of Connecticut and that such money, specifically $7,525, be deposited into the drug assets forfeiture revolving account pursuant to General Statutes § 54–36i.

The court finds that the state has not met its burden of proof with regard to the 2005 Nissan Maxima.   There was no evidence presented to establish that this vehicle was derived from proceeds from the sale of a controlled substance or that it was used or intended for use to commit or facilitate the commission of the sale of a controlled substance.   There was insufficient evidence presented to establish the owner of this vehicle.   Although Mr. Evans claims an interest in this vehicle, the evidence presented at the hearing leads this court to conclude that he was not the owner of this vehicle.   In his sworn interrogatory responses dated March 23, 2012, Mr. Evans states that the only motor vehicles titled or registered in his name between January 10, 2010 and January 10, 2012 were a 1998 Cadillac STS, a 2003 Lincoln Navigator and a 2001 Mercedes Benz. There is no mention of a 2005 Nissan Maxima.   As such, the court cannot find that Mr. Evans is the owner of the 2005 Nissan Maxima.   The court orders that the vehicle be returned to the rightful owner.   The secondary order is that it be sold at a public auction and that any proceeds from the sale of this vehicle be placed into the general fund.

The court finds that the state has failed to meet its burden of proof with regard to the $37,594.79 in United States currency seized from the Citizens Bank accounts.   There was insufficient evidence presented at trial to establish that this money was the result of illegal activity.   Although Mr. Evans claims an interest in this bank account, there is insufficient evidence establishing that Mr. Evans is the owner of these funds.   Moreover, there is some question from the evidence that was presented that this account was a business account to which Mr. Evans may have had access.   Accordingly, the court orders that these funds be returned to the rightful owner.   The secondary order is that these funds be placed in the general fund.

III. CONCLUSION

In accordance with the findings made by the court on July 22, 2013, the court enters the following orders:

The $490 in U.S. currency is hereby ORDERED forfeited to the State of Connecticut.

The $7,035 in U.S. currency is hereby ORDERED forfeited to the State of Connecticut.

The 2005 Nissan Maxima is hereby ORDERED to be returned to the rightful owner.   The secondary order is that it be sold at public auction and any proceeds from the sale of this vehicle be placed into the general fund;

The $37,594.79 in U.S. currency is hereby ORDERED to be returned to the rightful owner.   The secondary order is that these funds be deposited in the general fund.

SO ORDERED.

LAURA F. BALDINI

JUDGE OF THE SUPERIOR COURT

FOOTNOTES

FN1. The discovery requests dated January 9, 2012 pertain to another asset forfeiture proceeding, CV11–831, to which Mr. Evans was a named party..  FN1. The discovery requests dated January 9, 2012 pertain to another asset forfeiture proceeding, CV11–831, to which Mr. Evans was a named party.

FN2. General Statutes § 54–36h(b) provides, in pertinent part, that “No testimony offered or evidence produced by such owner or interested person at such hearing and no evidence discovered as a result of or otherwise derived from such testimony or evidence, may be used against such owner or interested person in any proceeding, except that no such owner or interested person shall be immune from prosecution for perjury or contempt committed while giving such testimony or producing such evidence.”.  FN2. General Statutes § 54–36h(b) provides, in pertinent part, that “No testimony offered or evidence produced by such owner or interested person at such hearing and no evidence discovered as a result of or otherwise derived from such testimony or evidence, may be used against such owner or interested person in any proceeding, except that no such owner or interested person shall be immune from prosecution for perjury or contempt committed while giving such testimony or producing such evidence.”

Baldini, Laura F., J.