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State v. Jones

Supreme Court of Vermont

January 11, 2019

State of Vermont
Corey Regal Jones

          On Appeal from Superior Court, Caledonia Unit, Criminal Division Elizabeth D. Mann, J.

          Lisa A. Warren, Caledonia County State's Attorney, and Timothy Hartwell, Law Clerk (On the Brief), St. Johnsbury, and David Tartter, Deputy State's Attorney, Montpelier, for Plaintiff-Appellee.

          Matthew Valerio, Defender General, and Dawn Matthews, Appellate Defender, Montpelier, for Defendant-Appellant.

          PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.

         ¶ 1. CARROLL, J.

         Defendant appeals his conviction by jury for dispensing less than 200 milligrams of heroin in violation of 18 V.S.A. § 4233(b)(1). He contends that there was insufficient evidence to prove that he provided drugs to a confidential informant during a controlled purchase and, therefore, the court erred by denying his motion for judgment of acquittal. He also challenges his sentence, arguing that the trial court did not account for the nature and circumstances of the crime. We affirm.

         I. Factual and Procedural Background

         ¶ 2. At trial, the State presented evidence of the following facts, taken in the light most favorable to the State. In summer 2016, Officer Steven Hartwell of the St. Johnsbury Police Department had a female confidential informant[1] working for him. She had been facing two potential charges. Hartwell and the informant agreed that if she made ten controlled purchases, the State might decline to pursue these cases against her. A controlled purchase is an investigative operation in which law enforcement officers surveil an agent working on their behalf as he or she attempts to purchase drugs.

         ¶ 3. On August 16, 2016, this informant came to the police station to tell Hartwell that she might be able to make one of these purchases from defendant, an African-American male whom informant knew. With Hartwell watching her, she telephoned defendant to arrange the purchase. Hartwell then searched the informant by patting her down and emptying her purse to make sure that she did not have any drugs, money, or weapons. He found none. He gave her forty dollars to buy drugs from defendant, and he placed an audio recorder in her purse and turned it on. This recorded much of what was said in the vicinity of the informant during the operation but did not transmit real-time audio surveillance to the officers.

         ¶ 4. Three representatives from the police department observed as the informant attempted to make the purchase from defendant: Officer Hartwell, Chief of Police Paige, and Captain Gray. They communicated by radio, attempting to always have at least one of them watching the informant. The entire operation lasted about one hour.

         ¶ 5. The informant departed from the police station on foot and walked to a pre-arranged meeting place: 48 Eastern Avenue, an apartment building called the Republican Block. Hartwell followed, watching her from his car. He parked across from the hardware store on Eastern Avenue in front of the state office buildings. Paige had parked on the same side of Eastern Avenue, up the hill, closer to the hardware store than Hartwell. Gray was parked in the municipal lot at Pearl Street and Eastern Avenue.

         ¶ 6. Defendant met the informant outside the Republican Block. They remained there for ten to twenty minutes, though defendant went back inside the building several times without the informant. Neither Hartwell, Gray, nor Paige saw a transaction involving the informant occur at this location.

         ¶ 7. The informant and defendant then walked across Eastern Avenue toward Federal Street. In response, Paige moved his observation post to Pearl Street, which connects Eastern Avenue to Federal Street. From his new position, he could see the informant the entire time that she was on Federal Street, except during the apparent transaction. After confirming that Paige could see the informant, Hartwell relocated to the same area of Pearl Street as Paige. Gray also moved his car. He drove to the other side of the municipal lot, parking behind TD Bank, in the closest row of spaces adjacent to the McDonald's. He faced the drive-through and Federal Street. His vehicle was situated near the middle of the lot, as measured from Railroad Street to Pearl Street, so that he could see the corner of Federal and Pearl, unobstructed by hedges that otherwise would have blocked his view.

         ¶ 8. Gray watched as defendant walked down Federal Street toward Railroad Street, while the informant stayed behind and waited near Federal and Pearl. After about twenty minutes, defendant returned. Gray then saw a handoff between defendant and the informant: they quickly joined hands and then separated, changing directions immediately after touching. Gray could not see what, if anything, passed between them. After touching the informant's hand, defendant walked back down the Federal Street hill, and the informant walked ...

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