STATE OF CONNECTICUT v. KENNETH MYERS
(AC 26740)
Appellate Court of Connecticut
Argued November 28, 2006-officially released May 15, 2007
101 Conn. App. 167
Bishop, DiPentima and Berdon, Js.
Opinion
BISHOP, J. The defendant, Kenneth Myers, appeals from the judgment of conviction, rendered after a jury trial, of possession of narcotics with intent to sell in violation of
The following facts, which the jury reasonably could have found, and procedural history are relevant to our discussion of the issues on appeal. On June 18, 2004, as Susan Curtis was walking to the Super Food Mart (store) located in the North Street Shopping Plaza (plaza) in Danbury to cash a paycheck, she saw the defendant in his car and asked him for a ride. The defendant agreed and brought her to the store where she cashed her check and then returned to the defendant‘s vehicle.
At approximately 4:40 p.m., while Officer Isaiah Pitts of the Danbury police department was on duty in his marked police vehicle at the plaza, he noticed that the rear license plate of the defendant‘s vehicle was not properly secured. After checking with the department of motor vehicles and ascertaining that the license plate belonged to another vehicle, Pitts decided to follow the defendant, who had departed from the plaza onto Padanaram Road, driving southbound.1 Once the defendant had traveled through one traffic light, Pitts activated his vehicle‘s lights and siren and directed the defendant to drive into the parking lot of a Texaco
Before Pitts approached the vehicle, the defendant took a plastic bag out of his pocket and told Curtis to hold onto it for him. Curtis quickly put the bag in her mouth because, she claimed, she “did not know what else to do.” Once Pitts arrived, he asked the defendant for his license, registration and insurance card. The defendant provided his license but stated that he had no other documentation. Returning to his vehicle, Pitts ascertained that the defendant‘s operator‘s license was suspended. Pitts then returned to the defendant‘s vehicle, arrested the defendant and placed him in the police vehicle.
After the defendant had been removed from his vehicle, Curtis took the bag from her mouth and placed it into her underwear. She later claimed that she had held onto the bag because she knew the defendant was a drug dealer and because she was afraid of him. Once the defendant had been placed in the police cruiser, a second officer, Ted Zalenski, arrived on the scene. Upon checking Curtis’ name through their database, they discovered that she had an outstanding warrant for her arrest for failure to appear relating to a motor vehicle case in 1997. On this basis, Curtis was arrested and placed into Zalenski‘s vehicle.
Both the defendant and Curtis were then taken to the Danbury police department and placed in separate cells. Curtis asked to speak to Pitts and told him how she had come into possession of a bag of “stuff” in her underwear. Following this conversation, Curtis was searched and the bag was seized. Curtis thereafter gave the police a statement regarding the circumstances that caused her to be present in the defendant‘s vehicle and in possession of the bag and its contents. Subsequently, the bag was discovered to contain fourteen smaller
On the basis of the preceding facts, the defendant was charged in a four count information with possession of narcotics with intent to sell by a person who is not drug-dependent in violation of
I
The defendant first claims2 that there was insufficient evidence for the jury to find him guilty of possession of narcotics with intent to sell within 1500 feet of a school in violation of
We begin by setting forth the applicable standard of review. “In reviewing [a] sufficiency [of the evidence] claim, we apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . .
“While . . . every element [must be] proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. . . . If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt. . . . Moreover, [i]n evaluating evidence that could yield contrary inferences, the [jury] is not required to accept as dispositive those inferences that are consistent with the defendant‘s innocence. . . . As we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [jury], would have resulted in an acquittal. . . . On appeal, we do not ask whether there is a
We begin with the language of
Accordingly, to prove that the defendant was guilty of
“[T]he question of intent is purely a question of fact. . . . The state of mind of one accused of a crime is often the most significant and, at the same time, the most elusive element of the crime charged. . . . Because it is practically impossible to know what someone is thinking or intending at any given moment, absent an outright declaration of intent, a person‘s state of mind is usually proven by circumstantial evidence. . . . Intent may be and usually is inferred from conduct. . . . [W]hether such an inference should be drawn is properly a question for the jury to decide.” (Internal quotation marks omitted.) State v. Downey, 45 Conn. App. 148, 154, 694 A.2d 1367, cert. denied, 242 Conn. 909, 697 A.2d 367 (1997).
Furthermore, “[t]he quantity of narcotics found in the defendant‘s possession [is] probative of whether the defendant intended to sell the drugs. . . . Also indicative of the defendant‘s intent to sell narcotics is the manner in which the narcotics are packaged.” (Citation omitted; internal quotation marks omitted.) State v. Ogrinc, 29 Conn. App. 694, 699, 617 A.2d 924 (1992); see also State v. Kiser, 43 Conn. App. 339, 344, 683 A.2d 1021, cert. denied, 239 Conn. 945, 686 A.2d 122 (1996) (individually wrapped packages of cocaine consistent with preparation of drugs for sale), cert. denied, 520 U.S. 1190, 117 S. Ct. 1478, 137 L. Ed. 2d 690 (1997). “In addition, the absence of drug paraphernalia indicates that the substance is not intended for personal use, but rather for sale to others.” (Internal quotation marks omitted.) State v. Jeffreys, 78 Conn. App. 659, 675-76, 828 A.2d 659, cert. denied, 266 Conn. 913, 833 A.2d 465 (2003).
In addition, we emphasize and note that “[i]n common parlance, a ‘sale’ is the exchange of an object for value. The statutory definition of ‘sale’ as applied to illegal drug transactions, however, is much broader and includes any form of delivery4 [of an illegal drug] . . .
On the basis of our review of the record, we conclude that there was sufficient evidence to support the jury‘s finding that the defendant was guilty of having violated
The defendant next claims that the court failed to instruct the jury on an essential element of
Having failed to preserve his claim, the defendant now seeks review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).8 “This court has held that only under the most exceptional circumstances will it consider a claim, constitutional or otherwise, that has not been raised [in] and decided by the trial court. . . . However, [i]t is . . . constitutionally axiomatic that the jury be instructed on the essential elements of a crime charged. . . . Consequently, the failure to instruct a jury on an element of a crime deprives a defendant of the right to have the jury told what crimes he is actually being tried for and what the essential elements of those crimes are.” (Citations
Our analysis begins with our standard of review. “When reviewing the challenged jury instruction . . . we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court‘s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not view the instructions as improper.” (Internal quotation marks omitted.) State v. Leroy, 232 Conn. 1, 8, 653 A.2d 161 (1995). On the basis of our review of the record, we are unpersuaded that the court‘s instruction was flawed. Contrary to the claim of the defendant, we do not believe that culpability under
“[T]he plain language of
. . .
“Thus the plain language of
Our examination of the entire jury charge reveals that each element of
Thus, the defendant is incorrect in his assertion that the court should have instructed the jury that the state was required to prove that he not only possessed the narcotics with the intent to sell them at a location that was within 1500 feet of the school, but that he had to have had the specific intent to be within the 1500 feet of a school at the moment he possessed drugs with an intent to sell them. Denby makes it clear that
III
The defendant‘s next claim is that he was improperly convicted and sentenced as a repeat offender. Specifically, the defendant argues that the court improperly convicted and sentenced him without a guilty plea or a trial as to the part B information pursuant to Practice Book § 42-2.10 We agree.
Subsequently, on March 23, 2005, after the jury returned a verdict of guilty on the charge of violating
“[The Prosecutor]: All right. I‘m fine with that, Your Honor. The concern I have is that-it is-because it is a penalty enhancement under our recent Supreme Court cases, and I-which I don‘t-just don‘t have with me right now, it looks like that it does not require a finding by a fact finder. If counsel disagrees with that, then I‘m fine with that. I guess the concern is [that] I don‘t want this, then, to be an issue on appeal. But as long as defense counsel was fine with it and the defendant is fine with her decision and interpretation of the law, that‘s fine with me.
“The Court: . . . [W]ould you want me to proceed to put this over for sentencing after a [presentence investigation report] is done?
“[Defense Counsel]: Yes, Your Honor.
“The Court: All right. When would be a good time for us to do that?”
The court then made a finding that the defendant had violated his probation. Before the proceedings for that day ended, however, another colloquy took place as follows:
“[The Prosecutor]: . . . I would also note that defense counsel is waiving a part B of the information determining that it is not necessary for the sentence of up to thirty years.
“The Court: Is that a fair statement, [counsel]?
“[Defense Counsel]: Yes, Your Honor.”
“The Court: All right. . . . I‘ll gather all the information that‘s appropriate and sentence [the defendant] on May 18.”
At the subsequent sentencing hearing, the state noted that both the presentence investigation report and testimony indicated that the defendant had previously been convicted of violating
The defendant concedes that his claim is unpreserved. He requests review pursuant to Golding13 and on the basis of the plain error doctrine. “Under Practice Book § 60-5, this court may, in the interest of justice, notice plain error not brought to the attention of the trial court. Otherwise, the reviewing court shall not be bound to consider a claim not raised before the trial court or arising subsequent to trial.” State v. Peters, 89 Conn. App. 141, 144, 872 A.2d 532, cert. denied, 274 Conn. 918, 879 A.2d 895 (2005). The plain error doctrine, which “has been codified at Practice Book § 60-5, which provides in relevant part that [t]he court may reverse or modify the decision of the trial court if it determines that the decision is . . . erroneous in law. . . . The plain error doctrine is not . . . a rule of reviewability. It is a rule of reversibility. That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properly preserved or
“We have held generally that a mandatory provision of the rules of practice . . . must be implemented fully to avoid trampling on a defendant‘s constitutional rights, which would constitute plain error and require, as a consequence, reversal of the judgment.” State v. Irala, 68 Conn. App. 499, 515, 792 A.2d 109, cert. denied, 260 Conn. 923, 797 A.2d 519, cert. denied, 537 U.S. 887, 123 S. Ct. 132, 154 L. Ed. 2d 148 (2002). A court commits plain error when it fails to implement properly the mandatory provisions of clearly applicable rules of practice. Cummings & Lockwood v. Gray, 26 Conn. App. 293, 300, 600 A.2d 1040 (1991); In re Jonathan P., 23 Conn. App. 207, 211, 579 A.2d 587 (1990). In such cases, “the plain error doctrine must be invoked . . . .” In re Jonathan P., supra, 211. “Our Supreme Court previously has recognized the significance of the [drafter‘s] choice in electing to choose shall or may in formulating a . . . directive. . . . Absent an indication to the contrary, the [drafter‘s] choice of the mandatory term shall rather than the permissive term may indicates that the . . . directive is mandatory.” (Citation omitted; internal quotation marks omitted.) Vargas v. Doe, 96 Conn. App. 399, 412, 900 A.2d 525, cert. denied, 280 Conn. 923, 908 A.2d 546 (2006). Finally, “[o]ur rules of practice and case law provide that where a defendant is exposed to
Here, the court was required by the mandate of Practice Book § 42-2 to put the defendant to plea to accord him a hearing regarding his jeopardy as a repeat offender and to make a finding regarding his status as a repeat offender. Irrespective of whether the court may have been led by the combined misstatements of counsel, the record reveals that the defendant was not put to plea, no canvass took place, no trial occurred and the defendant was not adjudicated a repeat offender. On this record, we conclude that the trial court committed plain error and that it would be an injustice for this court not to afford the defendant relief on the ground that he failed to preserve this claim. Accordingly, the defendant‘s sentence must be vacated, the court must afford the defendant a hearing on part B of the information, and, following that determination, the defendant must be resentenced.14
IV
The defendant‘s final claim is that the court abused its discretion by permitting the state to introduce prior misconduct evidence concerning the defendant‘s prior conviction of possession of narcotics with intent to sell pursuant to
The following additional facts and procedural history are relevant to the defendant‘s claim. Prior to the commencement of the state‘s case, trial counsel submitted two motions in limine seeking to preclude evidence of the defendant‘s prior conviction for possession of narcotics with intent to sell. The state replied that it would not introduce the conviction unless the defendant testified but that it did intend to introduce evidence of prior misconduct pursuant to
On the first day of trial, the state called Officer Mark Trohalis. Outside the jury‘s presence, Trohalis stated that on November 19, 2002, during a narcotics investigation, a car was stopped, and the defendant, a passenger, was found to have a bag of narcotics inside his pants. The bag contained twelve smaller bags with a yellow, rock like substance. The smaller bags inside were knotted in the same manner as other narcotics Trohalis had seen over the years. As a result, the defendant was arrested and subsequently convicted for possession of narcotics with the intent to sell. The court then ruled that the evidence of prior misconduct was admissible to show absence of mistake, to corroborate Curtis’ testimony and for the purposes of establishing the essential elements of intent and possession.
Admitting this evidence over the defendant‘s objections, the court noted in the absence of the jury that this evidence of prior misconduct was admissible under
Danbury police Officer John Krupinsky also testified that he was involved in the motor vehicle stop with Trohalis. Krupinsky confirmed that during this event, the defendant reached down his pants and handed the bag over to Trohalis. Catherine Rose of the state toxicology laboratory testified that the substance consisted of freebase or crack cocaine. On cross-examination, Rose indicated that there was only crack cocaine and not the powder or salt form of cocaine.
In its final instructions, the court charged the jury as follows: “I‘m going to talk about evidence that I admitted for a limited purpose. You recall that I have ruled that some testimony evidence has been allowed for a limited purpose. Any testimony or evidence which I identified as being limited to a purpose you will consider only as it relates to the limits for which it was allowed. And you shall not consider such testimony and evidence in finding any other facts as to any other issue. . . .
“Ladies and gentlemen, you heard testimony concerning [the defendant] and a date, November of 2002. I instruct you that that testimony is admissible and relevant for a limited purpose. It can only be used by you on the issues of intent as it relates to an intent to sell, absence of mistake or accident as it relates to whether or not the defendant was aware of any drugs recovered, knowledge as it relates to whether or not the defendant had any knowledge of drugs recovered, an element of the crime as it relates to whether or not the defendant possessed any drugs recovered and, or possessed them with the intent to sell, and finally to corroborate prosecution
At the outset, we note that “[a] trial court‘s ruling on the admissibility of evidence is entitled to great deference and will be overturned only if a clear abuse of the court‘s discretion is shown and the defendant shows that the ruling caused substantial prejudice or injustice. An appellate tribunal is required to make every reasonable presumption in favor of upholding the trial court‘s ruling.” (Internal quotation marks omitted.) State v. Thomas, 96 Conn. App. 578, 583-84, 901 A.2d 76, cert. denied, 280 Conn. 912, 908 A.2d 542 (2006). Thus, the standard we employ to review this claim is whether the court abused its discretion in allowing this evidence of prior misconduct.
“[A]s a general rule, evidence of prior misconduct is inadmissible to prove that a defendant is guilty of the crime of which he is accused. We have recognized exceptions to this general rule, however. Evidence of prior misconduct may be admissible for other purposes, such as to prove knowledge, intent, motive, and common scheme or design . . . . Accordingly, [our Supreme Court has] established a two-pronged test for determining the admissibility of prior misconduct evidence. Such evidence is admissible if: (1) it is relevant and material to at least one of the circumstances encompassed by the exceptions; and (2) its probative value outweighs its prejudicial effect.” (Citations omitted; internal quotation marks omitted.) State v. James G., 268 Conn. 382, 390, 844 A.2d 810 (2004).
Under the first prong of our analysis, we conclude that the court did not abuse its discretion in ruling that the evidence was relevant and material. “Relevant
Here, the state was required to prove that the defendant possessed narcotics with the intent to sell them. Accordingly, the state properly offered Trohalis’ and Krupinsky‘s testimony to aid the jury with the issue of intent. “As we stated in State v. Amaral, 179 Conn. 239, 245, 425 A.2d 1293 (1979), evidence that the defendant had been a seller of narcotics in the past is relevant to the nature of his possession of the drug at the time of the alleged offense. Because intent is almost always proved, if at all, by circumstantial evidence, prior misconduct evidence, where available, is often relied upon.” (Internal quotation marks omitted.) State v. Baldwin, 224 Conn. 347, 355, 618 A.2d 513 (1993).
The defendant also argues that there was more than ample evidence from which the jury could infer intent, and, therefore, there was no need to permit the prejudicial testimony of Trohalis and Krupinsky. “Intent, or any other essential element of a crime, is always at
Having determined that the court properly found the challenged evidence to be relevant, we next turn to whether the court abused its discretion in determining that the probative value of the evidence outweighed its prejudicial effect. “We recognize that this balancing process is an inherently difficult one, and will reverse the trial court‘s decision only when it is manifest that an abuse of discretion or an injustice has occurred.” (Internal quotation marks omitted.) State v. Mooney, 218 Conn. 85, 127, 588 A.2d 145, cert. denied, 502 U.S. 919, 112 S. Ct. 330, 116 L. Ed. 2d 270 (1991).
“[E]vidence may be excluded by the trial court if the court determines that the prejudicial effect of the evidence outweighs its probative value. . . . Of course, [a]ll adverse evidence is damaging to one‘s case, but it is inadmissible only if it creates undue prejudice so that it threatens an injustice were it to be admitted. . . . The test for determining whether evidence is unduly prejudicial is not whether it is damaging to the defendant but whether it will improperly arouse the emotions of the jury. . . . The court bears the primary responsibility for conducting the balancing test to determine whether the probative value outweighs the prejudicial impact, and its conclusion will be disturbed only for a manifest abuse of discretion.” (Citation omitted; internal quotation marks omitted.) State v. DeJesus, 91 Conn. App. 47, 64, 880 A.2d 910 (2005), cert. granted on other grounds, 279 Conn. 912, 903 A.2d 658 (2006).
The defendant contends that the prior misconduct evidence unnecessarily aroused the jurors’ emotions
The defendant also argues that the similarity of the presently charged crimes to the prior misconduct renders evidence of his prior acts more prejudicial than probative because the jury was likely to view the misconduct testimony relating to the prior drug conviction as propensity evidence. We do not agree. “[T]he mere fact that [prior] misconduct [evidence] and the charged crime are similar does not make the [prior] misconduct evidence overly prejudicial.” State v. McFarlane, 88 Conn. App. 161, 165, 868 A.2d 130, cert. denied, 273 Conn. 931, 873 A.2d 999 (2005). In fact, this court has stated that sufficient similarities of the prior offenses to the charged offenses makes them highly probative. State v. Madore, 45 Conn. App. 512, 522-23, 696 A.2d 1293 (1997).
Contrary to the defendant‘s assertion, we do not believe that the prior misconduct evidence was inflammatory. Because the jury already had heard, and was in the process of hearing, evidence of the defendant‘s possession and intent to sell narcotics, the prior misconduct evidence was not singularly shocking. See State v. Cooper, 227 Conn. 417, 427, 630 A.2d 1043 (1993) (where evidence similar to uncharged misconduct permeated trial, court found it difficult to believe uncharged misconduct evidence “could have had a tendency to shock or influence the jury or to color the proceedings so as to deprive the defendant of a fair trial“); see also State v. Fernandez, 76 Conn. App. 183, 189-90, 818 A.2d 877 (evidence that defendant sold
Finally, as noted, the court minimized the potential prejudice to the defendant of the admitted prior misconduct evidence by polling the jury, giving the jury detailed limiting instructions as to the role the evidence was to play in its deliberations immediately after Trohalis’ and Krupinsky‘s testimony, and the court repeated its admonition to the jury in its final instructions. “Proper limiting instructions often mitigate the prejudicial impact of evidence of prior misconduct.” (Internal quotation marks omitted.) State v. Orellana, 89 Conn. App. 71, 89, 872 A.2d 506, cert. denied, 274 Conn. 910, 876 A.2d 1202 (2005). Furthermore, a jury is presumed to have followed a court‘s limiting instructions, which serves to lessen any prejudice resulting from the admission of such evidence. See State v. James G., supra, 268 Conn. 397-98; see also State v. Anderson, 86 Conn. App. 854, 870, 864 A.2d 35 (jury presumed to follow court‘s instructions absent clear evidence to contrary), cert. denied, 273 Conn. 924, 871 A.2d 1031 (2005).
Accordingly, we find no fault with the court‘s conclusions that the probative value of the evidence outweighed any prejudice to the defendant. The care with which the court weighed the evidence and devised measures for reducing its prejudicial effect weighs against a finding of abuse of discretion. See State v. Erhardt, supra, 90 Conn. App. 862. Thus, we conclude that the court did not abuse its discretion in admitting the evidence of prior misconduct.
The judgment is affirmed as it relates to the defendant‘s convictions under counts two, three and four and reversed as to part B of the information. The matter is remanded for a determination under part B of the
In this opinion DIPENTIMA, J., concurred.
BERDON, J., concurring in part and dissenting in part. I agree with part III of the majority opinion with respect to the conviction and sentence of the defendant, Kenneth Myers, as a repeat offender, in that to charge a person as a repeat offender, the procedure set forth in the rules of practice must be followed.
I disagree with parts I and II of the majority opinion with respect to the conviction of the defendant pursuant to
The arresting police officer, Isaiah Pitts of the Danbury police department, had cause to stop the defendant‘s vehicle in a shopping plaza, which was outside of the school zone. Instead, he chose to follow the defendant‘s vehicle until it got within 1500 feet of the school, which was the basis for the charge that the defendant possessed drugs with the intent to sell or dispense within 1500 feet of a school in violation of
A reading of the entire statute leads to the conclusion that it does not cover one who merely passes through the prohibited zone as the defendant did but, rather, that the defendant specifically must have intended to sell or dispense the drugs at a location that happens to be within the prohibited zone. State v. Denby, 235 Conn. 477, 483, 668 A.2d 682 (1995). The plain language of the statute provides for that intent as follows: “To constitute a violation of this subsection, an act of transporting or possessing a controlled substance shall be with intent to sell or dispense in or on, or within one thousand five hundred feet of, the real property comprising a public or private elementary or secondary school . . . .” (Emphasis added.)
On the basis of the plain language of
In the present case, there was no such intent. The defendant was merely passing through the prohibited zone. This intent is a required element; otherwise it “would encourage the police to chase drug suspects through school zones, or to delay arrests of suspected drug suspects until a school zone violation has
The majority opinion recounts, at length, evidence of the defendant‘s intent to sell narcotics. This includes evidence that the packaging and quantity of the narcotics found was consistent with an intent to sell and evidence of the defendant‘s prior conviction for selling narcotics. This evidence, though indicative of the defendant‘s intent to sell narcotics at some time or place, is not relevant to the defendant‘s intent to sell within the school zone. Intent to sell, without evidence of intent to sell at a location within a school zone, is not sufficient to find the defendant guilty under
Although intent can be inferred from conduct; see State v. Downey, 45 Conn. App. 148, 154, 694 A.2d 1367, cert. denied, 242 Conn. 909, 697 A.2d 367 (1997); here, the defendant‘s words and conduct do not provide sufficient grounds for the inference that he intended to “sell” narcotics at that location, despite his act of handing the narcotics to Curtis.
Even under the very broad definition of sale,3 the defendant‘s act here, handing a package of narcotics
Moreover, the United States Court of Appeals for the Second Circuit has held that the transfer of narcotics between two simultaneous purchasers is not “delivery” because such transfers are not links in the chain of distribution. United States v. Swiderski, 548 F.2d 445, 451 (2d Cir. 1977). Similarly, here, though the defendant and his passenger were not simultaneous purchasers, the defendant did not “deliver” the narcotics to Curtis because there is no indication that the transfer was furthering the distribution of the narcotics within the school zone.
This case, therefore, implicates the concerns expressed by other courts that police may, on a whim, use the pervasive and unavoidable presence of drug free school zones within our cities to significantly increase the mandatory penalty. See United States v. Alston, supra, 832 F. Supp. 7. Indeed, the scope of the prohibited zones is even broader in Connecticut. They also include “a public housing project or a licensed child day care center, as defined in section 19a-77, that is defined as a child day care center by a sign posted in a conspicuous place. . . . For the purposes of this subsection, ‘public housing project’ means dwelling
Accordingly, I dissent with respect to parts I and II of the majority opinion.6
LINDA K. RISCICA v. ROBERT J. RISCICA
(AC 27015)
Flynn, C. J., and Bishop and McLachlan, Js.
Notes
I agree that Pitts did not chase the defendant. Pitts, however, did follow the defendant until he got within 1500 feet of the school, notwithstanding that he had the same cause to stop him when he first observed the defendant in the North Street Shopping Plaza, as the majority opinion concedes. It is therefore a reasonable conclusion that Pitts deliberately followed the defendant until he got within 1500 feet of a school.
“The purpose of
“For you to find the defendant guilty of this charge, the state must prove the following elements beyond a reasonable doubt: that the defendant violated [
“A secondary school is a school for any combination of grades seven through twelve and may include any separate combination of grades five and six or grades six with grade seven and eight. If you find that the state has proven beyond a reasonable doubt that the defendant violated [
“If you find that the state has failed to prove beyond a reasonable doubt [that] the defendant violated [