41 Conn. App. 604 | Conn. App. Ct. | 1996
The defendant, Frankie Jenkins, appeals from the judgment of conviction, rendered after a jury trial, of sale of cocaine by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b), sale of cocaine in violation of General Statutes § 2 la-277 (a) and possession of cocaine in violation of General Statutes § 21a-279 (a). The court combined the first two counts as one conviction and imposed a total effective sentence of ten years, execution suspended after five years, and three years probation.
The jury could reasonably have found the following facts. As part of an investigation of cocaine sales in and around a Bristol housing complex, the Bristol police department stationed a police officer in one of the apartments in the complex with a view of the area outside one of the buildings. The officer observed a paid police informant approach the defendant and purchase what was later determined to be 0.12 grams of crack cocaine from the defendant. After the jury found the defendant guilty of all three counts, this appeal followed.
In support of his claim that the trial court denied him a fair trial and deprived him of due process of law by denying his motion to bifurcate for trial the issue of drug dependency, the defendant argues that (1) pursuant to McMillan v. Pennsylvania, 477 U.S. 79, 106 S. Ct. 2411, 91 L. Ed. 2d 67 (1986), drug dependency is purely a sentencing factor that is not an issue appropriately heard during trial, (2) State v. Ferrone, 96 Conn. 160, 113 A. 452 (1921), mandates a bifurcated hearing, (3) the failure to bifurcate improperly places the subject of punishment in the province of the jury, and (4) requiring the defendant to produce and persuade on the issue of drug dependency during his trial for sale of narcotics violates his rights to a fair trial and due process of law. Finally, the defendant argues that a new trial is necessary because he was prejudiced by the trial court’s erroneous instructions on the issue of drug dependency, which he claims were confusing to the jury and contrary to existing law. We affirm the judgment.
I
To address the defendant’s arguments, we first examine the statutory scheme. General Statutes § 21a-278 (b) provides in pertinent part that “[a]ny person who
Our Supreme Court has decided whether not being drug-dependent is an element of § 21a-278 (b) and who bears the burdens of production and persuasion on the issue of drug dependency in a line of cases culminating with State v. Hart, 221 Conn. 595, 605 A.2d 1366 (1992). See State v. Januszewski, supra, 182 Conn. 142; State
Finally, in State v. Hart, supra, 221 Conn. 607-11, our Supreme Court held that the defendant also bears the
In summary, a person charged with sale of narcotics pursuant to § 21a-278 (b) is presumed not to have been drug-dependent, but may avoid liability under § 2 la-278 (b) by proving by a preponderance of the evidence that he was drug-dependent at the time of the offense.
A
The defendant first argues that drug dependency is a sentencing factor and that McMillan requires a bifurcated hearing on that issue. The state argues that drug dependency is a defense akin to an affirmative defense, which does not require a bifurcated hearing. We are persuaded that McMillan does not require us to order a bifurcated hearing and that drug dependency is a defense akin to an affirmative defense.
McMillan v. Pennsylvania, supra, 477 U.S. 81, involved a Pennsylvania statute which imposed a five year mandatory minimum sentence if the defendant visibly possessed a firearm during the commission of certain crimes. The statute required that the trial court consider, during a sentencing hearing, the evidence adduced at trial in addition to other evidence offered by the parties at the hearing to determine by a preponderance of the evidence whether the defendant visibly possessed a firearm. Id. The defendants in McMillan objected to the procedure because they argued that
The defendant relies on McMillan to support his argument that the issue of drug dependency is a sentencing factor that requires a separate hearing. The mere fact that our Supreme Court relied on McMillan in Hart does not require this conclusion. McMillan stands for the proposition that a statutory provision requiring a mandatory minimum sentence is not necessarily an element of the offense and that a statute may reduce the burden of proof on that issue. McMillan v. Pennsylvania, supra, 477 U.S. 88. While the Hart court relied on McMillan, it did so for the proposition that the legislature may place the burden of proving drug dependency by a preponderance of the evidence on the defendant, not for the proposition that drug dependency is a sentencing factor.
Furthermore, the fact that the statute involved in McMillan required a separate hearing on the issue of a visible firearm does not mandate a separate hearing on the issue of drug dependency. The United States Supreme Court did not hold that a separate hearing was necessary; the court, in fact, did not even address that issue. It was the Pennsylvania legislature that required, through legislation, that the issue would be heard in a sentencing hearing. McMillan v. Pennsylvania, supra, 477 U.S. 81 n.1. Therefore, nothing in McMillan requires the conclusion that drug dependency is a sentencing factor or that the issue of drug dependency
We conclude that the issue of drug dependency is more akin to the affirmative defense described in Patterson than the sentencing factor described in McMillan. Patterson, which served as the basis for the United States Supreme Court’s decision in McMillan, involved New York’s murder statute and the defense of extreme emotional disturbance. Patterson v. New York, supra, 432 U.S. 198. New York’s murder statute essentially provides that a person is guilty of murder if with the intent to cause the death of another person he causes the death of such person. Id., 198-99 n.2. The statute affords a complete defense to murder if the defendant proves by a preponderance of the evidence that he acted under the influence of extreme emotional disturbance. Id. New York’s manslaughter statute provides that a person is guilty of manslaughter if with the intent to cause the death of another person he causes the death of that person under such circumstances that do not constitute murder because he acted under the influence of extreme emotional disturbance. Id., 199 n.3. In affirming the statutory scheme, the United States Supreme Court made it clear that a state need not “prove beyond a reasonable doubt every fact, the existence or nonexistence of which it is willing to recognize as an exculpatory or mitigating circumstance affecting the degree of culpability or the severity of punishment.” Id., 207. The court added that a state may place the burden on a defendant to prove “a factor that mitigates the degree of criminality or punishment . . . .’’Id., 209.
The court also recognized that “ ‘[t]he affirmative defense, intelligently used, permits the gradation of offenses at the earlier stages of prosecution and cer
Connecticut’s statutory scheme with respect to drug dependency and the difference between §§ 2 la-277 (a) and 21a-278 (b) are similar to the extreme emotional disturbance defense involved in Patterson and the difference between murder and manslaughter. With both drug dependency and extreme emotional disturbance, proof by a preponderance of the evidence of the mitigating circumstance allows the defendant to escape liability for an offense that carries a greater punishment. Our laws increase the punishment for the sale of narcotics by a person who is not drug-dependent because the legislature has chosen to punish those who sell drugs for profit more than those who sell to sustain their own habits.
The Connecticut murder and manslaughter statutes
Furthermore, the use of. different nomenclature for the two defenses is explained by the fact that the defenses were adopted as part of separate statutory
B
The defendant also argues that the issue of drug dependency is a sentencing factor pursuant to State v. Ferrone, supra, 96 Conn. 160, and, therefore, that Fer-rone mandates a bifurcated hearing on the issue of drug dependency. In Ferrone, the information charged the
The Ferrone court held that it was improper for the state to proffer evidence of the prior convictions to the jury and ordered a bifurcated hearing on the issue. Id., 175. First, the court noted that the information presented two separate issues: (1) whether the defendant was guilty of the underlying crime; and (2) whether the defendant had twice before been convicted, sentenced and imprisoned. Id., 172-73. The court reasoned that the issue of prior convictions relates solely to the penalty and “does not involve or state any other or different crime from that first stated.” Id., 173. The court further reasoned that “the issue of former convictions does not relate to the issue of the commission of the specific crime alleged, and for which only the accused is to be tried; and the fact of former convictions does not tend in any way to prove the commission of the crime charged.” Id., 174.
Our Supreme Court recently revisited the Ferrone decision in State v. Jones, 234 Conn. 324, 662 A.2d 1199 (1995). The defendant in Jones was charged with having committed a capital felony in violation of General Statutes § 53a-54b (3). Section 53a-54b (3) provides that a person is guilty of a capital felony if he or she commits murder and has previously been convicted of inten
The court reasoned that subdivision (3) of § 53a-54b is a sentence enhancer and “is classified as capital felony for the same reason we have previous offender statutes — to increase the sentence as a deterrent to recidivism. The prior murder conviction, although an element of subdivision (3), is not otherwise related to the current murder.” State v. Jones, supra, 234 Conn. 341. The court distinguished subdivision (3) from other subdivisions of the same statute, which the court concluded were not simply sentence enhancement provisions, but were designed to define different crimes. Id., 340-41. The court noted that many of the other subdivisions involve crimes that are capital felonies because they involve more atrocious types of murder: “Murder during a kidnapping (subdivision [5]), or sexual assault (subdivision [7]), murder of a peace officer (subdivision [1]), murder of two or more people (subdivision [8]), murder for pecuniary gain (subdivision [2]), and murder of a person following ingestion of drugs provided for profit by the defendant (subdivision [6]) . . . .” Id., 341.
The court further distinguished subdivision (3) from the other subdivisions of the statute by looking to the relationship of the elements. Id., 342. The court noted that subdivision (3) does not require the state to prove that the defendant’s prior murder conviction is related to the present murder, whereas the other subdivisions use phrases such as “during the course of’ and “before
We disagree with the defendant’s argument that drug dependency is a sentencing factor similar to the previous conviction involved in Ferrone and as such requires a bifurcated hearing. In Jones we learned that Ferrone is not applicable to statutes that define a more atrocious or different type of crime. State v. Jones, supra, 234 Conn. 340-41. Our legislature has defined a different, more heinous type of narcotics sale by providing that § 21a-278 (b) applies exclusively to persons who are not drug-dependent.
For the foregoing reasons, we conclude that drug dependency is not a sentencing factor within the ambit of either Ferrone or Jones and does not require a bifurcated hearing.
C
The defendant next claims that the lack of a bifurcated hearing unconstitutionally places the subject of punishment in the province of the jury. This argument relies on the defendant’s assumption that the issue of drug dependency is a sentencing factor. Because we conclude that the issue of drug dependency is not a sentencing factor, but is more akin to an affirmative defense, this argument necessarily fails.
D
The defendant’s final argument in support of a bifurcated hearing also relies on Ferrone. The defendant
In defending a charge of sale of narcotics pursuant to § 21a-278 (b), the defendant may defend on either or both of two grounds: (1) that the state has failed to meet its burden on one of the elements of the offense; or (2) that he was drug-dependent. If the state fails to prove the elements of the offense, the defendant will escape liability under § 21a-278 (b). If the state proves the elements of § 2 la-278 (b), the defendant may still escape liability under § 2 la-278 (b) by proving that he was drug-dependent.
The mere fact that the defendant is faced with a difficult choice regarding whether to present a seemingly inconsistent defense does not mandate a bifurcated hearing. Our Supreme Court addressed a similar issue in St,ate v. Suggs, 209 Conn. 733, 745, 553 A.2d 1110 (1989). In Suggs, the defendant demanded that the state choose to try him for either sexual assault in a cohabitating relationship, General Statutes § 53a-70b (b), or sexual assault in the first degree, General Statutes § 53a-70, to which cohabitation is a defense. See General Statutes § 53a-67 (b). The defendant contended that because cohabitation is an affirmative defense to sexual assault in a noncohabitating relationship, the state, by charging the defendant with both counts in one trial, placed the defendant in a position of raising an affirmative defense to one count that would not only
The court held that “a defendant’s voluntary decision to maintain mutually inconsistent defenses” does not result in a due process violation that requires separate trials. State v. Suggs, supra, 209 Conn. 745. The court added that any evidence that the defendant may offer on the issue does not relieve the state of its burden to prove the elements of the crime beyond a reasonable doubt, and that the trial court had made that clear in its charge to the jury. Id., 745, 747.
The defendant in this case argues that his assertion of the drug dependency defense forced him to proffer evidence that brought illegal narcotics within his ambit and thus assisted the state in proving the elements of sale of narcotics. We conclude, consistent with Suggs, that the defendant’s voluntary choice to pursue these seemingly conflicting defenses does not require bifurcation. In fact, the circumstances of this case present a stronger argument against a separate hearing than in Suggs, because, unlike in Suggs, evidence of the defense in this case is not direct evidence of an element of another crime with which the defendant was charged.
Furthermore, the trial court clearly instructed the jury that it was not to use evidence of drug dependency as evidence that the defendant was guilty of the sale
“The decision of which defenses to present to a jury in a criminal trial is properly left to the judgment and wisdom of the criminal defendant and his attorney. The due process clause of the Fourteenth Amendment does not guarantee one charged with a crime a separate audience for each and every defense he or his counsel may devise. As with many other decisions made prior to and during trial, a wrong choice of defenses may have severe adverse consequences. However, due process is not implicated simply by the fact that such a choice is foisted upon the criminal defendant.” Gilreath v. Robinson, 544 F. Sup. 569, 575-76 (1982).
Accordingly, we conclude that the trial court did not improperly deny the defendant’s motion to bifurcate for trial the issue of drug dependency.
II
The defendant’s final claim focuses on the trial court’s charge. At one point during the charge, the trial court
“An improper instruction on a defense, like an improper instruction on an element of an offense, is of constitutional dimension. ... In either instance, [t]he standard of review to be applied to the defendant’s constitutional claim is whether it is reasonably possible that the jury was misled. ... In determining whether it was indeed reasonably possible that the jury was misled by the trial court’s instructions, the charge to the jury is not to be critically dissected for the puipose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result. ...” (Citations omitted; internal quotation marks omitted.) State v. Prioleau, 235 Conn. 274, 284, 664 A.2d 743 (1995).
In charging on the issue of drug dependency, the trial court stated the following: “If you find that the defendant knowingly sold a substance and that substance was a narcotic substance and at the time of the sale the defendant was not drug-dependent, as I have defined all those terms for you, you should find him guilty. If you do not find all these elements proven
Prior to the misstatement, the trial court charged the following: “The statute [§ 21a-278 (b)] sets up two elements, both of which must be established beyond a reasonable doubt in order to justify a finding of guilty. First, that the substance was a narcotic substance, and, two, that the defendant knowingly sold it. . . . Now, the absence of drug dependency by the defendant, in other words, being a non drug-dependent person, is not an element that the state has to prove. Drug dependency is a fact which, if proven, exempts the defendant from this statute. The burden of proof, therefore, is on the defendant to prove by a preponderance of the evidence that he was drug-dependent at the time of the alleged sale.” Shortly thereafter, the trial court made the misstatement previously quoted.
Immediately after the misstatement, the trial court charged as follows: “Now, as I’ve just said on the issue of whether the defendant was drug-dependent at the time of the alleged offense, if it is proved that he was drug-dependent, he is exempt under the statute. However, as I said, the defendant, not the state, but the defendant has the burden of proving the drug dependency by a fair preponderance of the evidence. Now,
Last, the court charged: “[I]f you believe the state has proven the elements of sale beyond a reasonable doubt and that the defendant has not proven he was drug-dependent by a preponderance of the evidence, then you must find him guilty of the first count, sale
Initially, the trial court correctly charged the jury, then made the isolated misstatement, and then correctly charged the jury at considerable length on the drug dependency defense. The jury charge as a whole made it clear that drug dependency is not an element of the crime, and that the defendant bears the burden of persuading the jury on that issue by a preponderance of the evidence. Accordingly, we conclude that it was not reasonably possible that the jury was misled.
The judgment is affirmed.
In this opinion the other judges concurred.
The judgment ordered that the mittimus reflect that the portion of the combined conviction that is based on the conviction of § 21a-278 (b) carries with it a five year mandatory minimum sentence.
The legislative history of § 21a-278 reveals this intent: “The intent of the bill is to give the state’s attorney and the prosecuting attorney an opportunity
While the exact workings of §§ 21a-277 (a) and 21a-278 (b) and the New York murder and manslaughter statutes are not identical, their effect is the same. Both extreme emotional disturbance and drug dependency provide for a complete defense to the New York murder statute and § 21a-278 respectively. Unlike § 21a-277 (a), however, New York’s manslaughter statute expressly exempts those guilty of murder from the operation of the statute. Therefore, a defendant can never be convicted of both murder and manslaughter. As is evident in this case, in Connecticut a defendant may be convicted of both §§ 21a-277 (a) and 21a-278 (b). State v. Chicano, 216 Conn. 699, 721, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991). The double jeopardy doctrine, however, prevents punishment for both offenses. Id. Therefore, the effect of the statutes is identical, in that in both cases a defendant may be punished only for one offense. Id.
See General Statutes §§ 53a-54a and 53a-55.
Generally, defenses may be divided into five categories: (1) failure of proof defenses; (2) offense modifications; (3) justifications; (4) excuses; and (5) nonexculpatory defenses. 1 P. Robinson, Criminal Law Defenses (1984) § 21. An offense modification, defense is one that exists even when all of the elements of the offense have been satisfied. Id., § 23. “[Djifferent offense modifications . . . are supported by a variety of different rationales. Consent and extreme emotional distress, for example, serve to exculpate or to mitigate; they are based on a concern for the actor’s culpability.” Id., § 23 (a). Professor Robinson defines the extreme emotional disturbance defense as set forth in Patterson, as an offense modification. Id., § 27 (a). The issue of drug dependency can similarly be classified as an offense modification defense because it operates to exculpate a defendant even though all'of the elements of the crime have been met. The defendant avails himself of the benefits of the defense by introducing an issue independent of what the state must prove to obtain a conviction pursuant to § 21a-278 (b). Id., § 27 (a) (affirmative defense does not negate any fact that state must prove to convict of murder but constitutes separate issue on which defendant is required to carry burden of persuasion); see Patterson v. New York, supra, 432 U.S. 206-207.
The legislative history of the bill reveals that the laws pertaining to controlled substances were enacted separately from our penal code to address specifically the problem of drug abuse: “As characterized by the many people who have sponsored the bill, it represents a total approach to a growing and very important problem, rather than a piecemeal type of approach, which we have seen to date on the state and federal levels. I submit that this is very significant, Mr. Speaker. This total approach consists of combining in one package, five different but equally important responsibilities and functions. Regulation, enforcement, education, research and treatment are each to be performed by appropriate state departments working with each other and the other, the general coordinating activity of a drug advisory council made up of the various state commissioners, representatives of the medical, psychiatric and pharmaceutical professions as well as the general populace. This bill comes to us as a product of over a year’s extensive activity.” 12 H.R. Proc., Pt. 8, 1967 Sess., pp. 3657-58, remarks of Representative William E. Strada, Jr.
See footnote 2.
The trial court gave the following limiting instruction: “Now, another word about the evidence of drug dependency offered by the defendant. You must, not draw any inference from any evidence offered by the defendant to show he was drug-dependent to determine if he was guilty of the charge of sale of cocaine. As to whether or not he sold cocaine, the state must still prove the elements of sale that I’ve previously described beyond a reasonable doubt before you can find the defendant guilty of sale regardless of any evidence offered by him to show he was drug-dependent. Remember on voir dire, when you were questioned individually as to whether or not you could be a fair and impartial juror, you were asked in essence whether you believe, A, a person who is a drug user was therefore a drug seller, and, B, whether a seller was therefore a user, and you answered no to both questions, in effect agreeing that the two are separate and distinct. So, again I caution you that if you believe the defendant offered evidence to show he was drug-dependent, you must not use that evidence to draw an inference that he was, therefore, a seller. You must decide whether he was a seller solely on