State v. KnightState v. Knight
- Reporters:
- , ,
- Before:
- Mihalakos
Opinion
MIHALAKOS, J.The defendant, Anthony Knight, appeals from the judgment of conviction, rendered after a jury trial, of possession of a narcotic substance1 in violation of
On appeal, the defendant claims that (1) the trial court improperly failed to instruct the jury, for purposes of the counts alleging violations of
The jury could have reasonably found the following facts. On August 16, 1996, Detective Anthony Martinez of the vice and narcotic division of the Hartford police department received an anonymous telephone call reporting a sale of crack cocaine at apartment 203 on 57 Sumner Street in Hartford. This is an area well known for drug dealing. Martinez, together with three other plainclothes detectives, went to the premises and knocked on the door. The defendant answered and asked Martinez what he wanted. Martinez told the defendant that he wanted “ten.”3 The defendant removed two bags from his pocket, one containing a green, plant-like substance and the other a white, rock-like substance. Martinez gave the defendant $10 and purchased the bag containing the white, rock-like substance. Immediately after the purchase, Martinez identified himself as a police officer, whereupon the defendant ran back into the apartment. Martinez pursued the defendant into the apartment and a struggle ensued. The defendant was apprehended and handcuffed. Martinez removed the following items from the defendant’s pockets: one large bag containing fifty-two smaller bags of a green, plant-like substance,4 another large bag containing sixteen smaller bags of a white,
During the trial, the parties stipulated that apartment 203 at 57 Sumner Street was within 1500 feet of a school and that the defendant did not have a permit for a handgun.
I
The defendant’s first claim6 is that the trial court failed to instruct the jury that to be convicted under
Despite having failed to preserve this claim for review, the defendant seeks review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).7 This court has held that only under the most exceptional circumstances will it consider a claim, constitutional or otherwise, that has not been raised and decided by the trial court. State v. Washburn, 34 Conn. App. 557, 567, 642 A.2d 70, cert. denied, 230 Conn. 912, 645 A.2d 1017 (1994). However, “[i]t is . . . constitutionally axiomatic that the jury be instructed on the essential elements of a crime charged.” State v. Williamson, 206
Our Supreme Court has held that the intent to sell within 1500 feet of a school is an element of the crime. Id., 481. “[T]he plain language of
II
The defendant’s second claim is that the state failed to present sufficient evidence to support the jury’s verdict convicting him of the charge of possession of marijuana with intent to sell within 1500 feet of a school in violation of
The question of intent is generally proven by circumstantial evidence and “is purely a question of fact to be determined by the [trier of fact].” State v. Adams, 14 Conn. App. 119, 124, 539 A.2d 1022 (1988). “The jury can draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. State v. Tatem, 194 Conn. 594, 598, 483 A.2d 1087 (1984); State v. Dumlao, 3 Conn. App. 607, 616-17, 491 A.2d 404 (1985). State v. Greene, 11
The defendant argues that unless the state presents direct evidence that he sold or attempted to sell marijuana out of apartment 203 on 57 Sumner Street, it cannot be inferred that he had specific intent to sell the marijuana. We disagree. First, the defendant resides at 41 Niles Street in Hartford. He was arrested with fifty-two small retail bags of marijuana at the apartment on Sumner Street. Additionally, the defendant showed
Ill
The defendant’s final claim is that the sentence imposed by the trial court violated his right against double jeopardy. We disagree.
The defendant concedes that this double jeopardy claim was not properly preserved for appellate review. Regardless, the defendant argues that this court should review this claim under State v. Golding, supra, 213 Conn. 239-40. This claim meets the first two prongs of Golding, and it therefore is reviewable. State v. Lemoine, 39 Conn. App. 657, 663 n.8, 666 A.2d 824 (1995); The defendant’s claim must fail, however, in that it does not satisfy the third prong of Golding. See State v. Patrick, 42 Conn. App. 640, 643-44, 681 A.2d 380 (1996).
“The double jeopardy clause of the fifth amendment to the United States constitution provides: [N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb. The double jeopardy clause is applicable to the states through the due process clause of the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 794, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969); State v. Lonergan, 213 Conn. 74, 78, 566 A.2d 677 (1989), cert. denied, 469 U.S. 905, 110 S. Ct. 2586, 110 L. Ed. 2d 267 (1990). This constitutional guar
“Although the Connecticut constitution does not include a specific double jeopardy provision, the due process guarantee of article first, § 9, of our state constitution has been held to encompass protection against double jeopardy. Kohlfuss v. Warden, 149 Conn. 692, 695, 183 A.2d 626, cert. denied, 371 U.S. 928, 83 S. Ct. 298, 9 L. Ed. 2d 235 (1962); see also State v. Anderson, 211 Conn. 18, 25 n.8, 557 A.2d 917 (1989). Nevertheless, we have not held that our state constitution affords any greater due process rights than those afforded under the federal constitution’s double jeopardy clause. State v. Laws, 37 Conn. App. 276, 294—95, 655 A.2d 1131, cert. denied, 234 Conn. 907, 659 A.2d 1210 (1995).” (Internal quotation marks omitted.) State v. Patrick, supra, 42 Conn. App. 644.
The defendant’s contention that the sentence of two consecutive terms of three years imprisonment for his conviction of each violation of
“In construing any statute, we seek to ascertain and give effect to the apparent intent of the legislature. . . . In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Citation omitted; internal quotation marks omitted.) State v. Garvin, 242 Conn. 296, 304-305, 699 A.2d 921 (1997). Our Supreme Court has held that the legislature did not intend to bar multiple punishments for the simultaneous possession of two different kinds of drugs. As the court has noted, “[bjecause an obvious purpose of our drug statutes is to reduce the drug trade in Connecticut, multiple punishments for the sale of two different kinds of drugs is entirely consistent with the state drug policy.” State v. Hill, 237 Conn. 81, 102, 675 A.2d 866 (1996). We find that the sentence imposed by the trial court did not violate the defendant’s double jeopardy rights.
The judgment is affirmed.
In this opinion the other judges concurred.
Notes
The narcotic substance was cocaine.
The controlled substance was marijuana.
Martinez testified that in street parlance “ten” referred to the dollar value of the purchase.
Joel Milzoff supervised tests at the state department of health toxicology laboratory, which confirmed that the fifty-two small bags contained marijuana.
Similar tests confirmed that the sixteen small bags contained crack cocaine.
This claim is addressed to the two counts alleging violations of
Under Golding an unpreserved claim of constitutional error is reviewable only if all of the following requirements are satisfied: “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” State v. Golding, supra, 213 Conn. 239-40.
The jury charge provided in relevant part: “If you find the defendant guilty under the ninth count you will consider the three elements as set forth in the statute predicate to the application of
The court vacated the defendant’s sentences for possession of a narcotic substance, possession of a narcotic substance within 1500 feet of a school, possession of a controlled substance and possession of a controlled substance within 1500 feet of a school. The defendant was sentenced for possession of a narcotic substance, cocaine, with intent to sell;