220 Conn. 628 | Conn. | 1991
Lead Opinion
After a jury trial, the defendant appealed to the Appellate Court from a judgment of conviction of possession of narcotics in violation of General Stat
The state offered evidence to prove the following.
The defendant’s testimony directly contradicted the state’s version of the facts. According to the defendant, he was waiting for a friend in the hallway outside
The certified question presented is whether, in the circumstances of this case, the defendant was entitled to have the trial court instruct the jury, in accordance with his request, on the doctrine of nonexclusive possession of the premises. We conclude that the evidence did not warrant a jury instruction on the doctrine of nonexclusive possession of the premises, and, therefore, we answer the certified question in the negative.
“ When we are reviewing a trial court’s failure to charge as requested, “we must adopt the version of the facts most favorable to the defendant which the evidence would reasonably support. ”. . . ’ State v. Fuller, 199 Conn. 273, 275, 506 A.2d 556 (1986).” (Citations omitted.) State v. Havican, 213 Conn. 593, 595, 569 A.2d 1089 (1990). Furthermore, “ ‘[a] request to charge which is relevant to the issues of the case and which is an accurate statement of the law must be given. . . .’ State v. Casey, 201 Conn. 174, 178, 513 A.2d 1183 (1986).” (Citations omitted.) State v. Jennings, 216 Conn. 647, 663, 583 A.2d 915 (1990). The
The defendant’s claim that he was entitled to an instruction on the doctrine of nonexclusive possession of the premises is based primarily on State v. Alfonso, supra, 633, where we stated: “Where the defendant is not in exclusive possession of the premises where the narcotics are found, ‘it may not be inferred that [the defendant] knew of the presence of the narcotics and had control of them, unless there are other incriminating statements or circumstances tending to buttress such an inference.’ Evans v. United States, 257 F.2d 121, 128 (9th Cir.), cert. denied, 358 U.S. 866, 79 S. Ct. 98, 3 L. Ed. 2d 99, reh. denied, 358 U.S. 901, 79 S. Ct. 221, 3 L. Ed. 2d 150 (1958); see generally annot., 56 A.L.R.3d 948 (1974).” While the jury instruction on nonexclusive possession of the premises requested by the defendant is accurate as an abstract principle of law; see footnote 7, supra; it is inapplicable to the facts of the present case. If we adopt the version of the facts most favorable to the defendant that the evidence
In State v. Alfonso, supra, 627, police searched Alfonso’s apartment when he and a visitor were present. The police discovered cocaine in the living room and marihuana in the kitchen. Alfonso’s two roommates were not present at the time of the search. At the time of his arrest, Alfonso admitted ownership of the cocaine. Neither Alfonso nor his roommates nor the visitor admitted ownership of the marihuana. Id.,
In the present case, the apartment in which the narcotics were found was unoccupied on May 5,1989, and, thus, not in the exclusive possession of anyone present at the time the Bridgeport police entered. The defendant testified that the police observed another detainee drop several glassine envelopes on the floor in the front room next to the defendant and then arrested the defendant. According to the state’s evidence, the defendant was seen throwing an object on the floor in a back bedroom where no one else was present and where narcotics were subsequently found. Neither version of the evidence, viewed in the light most favor
In this opinion Shea, Callahan and Covello, Js., concurred.
The defendant was acquitted of the charge of possession with intent to sell a narcotic substance, in violation of General Statutes § 21a-278 (b), and convicted of the lesser included offense of possession of narcotics in violation of General Statutes § 21a-279 (a).
General Statutes § 21a-279 (a) provides: “Any person who possesses or has under his control any quantity of any narcotic substance, except as authorized in this chapter, for a first offense, may be imprisoned not more than seven years or be fined not more than fifty thousand dollars, or be both fined and imprisoned; and for a second offense, may be imprisoned not more than fifteen years or be fined not more than one hundred thousand dollars, or be both fined and imprisoned; and for any subsequent offense, may be imprisoned not more than twenty-five years or be fined not more than two hundred fifty thousand dollars, or be both fined and imprisoned.”
Although the facts are fully set forth in the decision of the Appellate Court, State v. Nesmith, 24 Conn. App. 158, 586 A.2d 628 (1991), we relate those facts that are pertinent to the disposition of the certified issue.
Sherbo testified that there was “no question in his mind” that the glassine envelopes had been thrown to the floor by the defendant. He was not sure, however, that the defendant had discarded the plastic vials because he did not hear them strike the concrete floor.
The foregoing version of the facts is based primarily on the testimony of Sherbo.
Pertinent testimony of the defendant is as follows:
Direct examination by Anthony Fusco, special public defender:
“Q. I see. Okay. Now did you see anything on the floor other than these people?
“A. No.
“Q. Were there any narcotics on the floor?
“A. No, I didn’t. The guy that was standing next to me—was sitting next to me, he dropped some bags next to me and they seen it and they just picked them up, took them and he was one of the last ones to go and they let him go. They picked up the drugs and let him go.
“Q. How do you know they were drugs?
“A. It was about three or four of them, those blue bags.
“Q. Did you say anything to any of the officers at this time?
“A. I was mad because I’m wondering what was I being arrested, because I was the first one being handcuffed. I was wondering why they was arresting me. I guess I started cussing at him because he said you’re not going anywhere.”
Cross-examination by John Smriga, assistant state’s attorney:
“Q. And you say at some point you saw somebody throw some drugs down on the floor?
“A. The guy that was sitting next to me.
“Q. What room was that in?
“A. In the living room.
“Q. And you saw him throw the drugs on the floor; correct?
“A. Yeah, because he tried to give them to me and I told him it wasn’t mine.
“Q. He threw—
“A. He threw it next to me. When he said it wasn’t his, I said it wasn’t mine, the police—
“Q. I’m sorry?
“A. The police said he saw who threw them down.
“Q. Did you testify before that they let that man go?
“A. Yes.
“Q. And it’s your testimony that the police saw the man throw the drugs down and they arrested another guy in the room for those drugs; is that what you are saying?
*632 “A. They arrested me.
“Q. All right. They arrested you. But did you testify earlier that the police did arrest someone else; correct?
“A. Right.
“Q. But not the guy that threw the drugs down; correct?
“A. No.
“Q. That’s your testimony to this jury.
“A. Right.”
The defendant testified that the other arrestee was not the man whom he had observed discard the glassine envelopes. See footnote 5, supra.
The relevant portion of the defendant’s request to charge read as follows: “Where Mr. Nesmith is not in exclusive possession of the place, here the apartment, where the heroin and cocaine is found, you may not conclude that he knew of its presence and that he had control of them, unless he made some incriminating statement, or unless there are some other circumstances which tend to support a conclusion or buttress such an inference. State v. Hill, 201 Conn. 505, 514-16 [523 A.2d 1252] (1986); State v. Alfonso, 195 Conn. 624, 633 [490 A.2d 75] (1985); Devit & Blackmar, Federal Jury Practice & Instruction, Sections 16.07, pp. 512-13 (3rd Ed. West 1977); Borden & Orland, 5 Connecticut Practice Criminal Jury Instructions, Sections 15.2,15.3, pp. 400-402, 410-13.” The charge as requested fails to conform with the requirement of Practice Book § 854 that a request to charge contain “the evidence to which the proposition [of law] would apply.” We nonetheless review the merits of the defendant’s claim.
We uphold this ruling on grounds distinct from those relied upon by the trial court and therefore decline to address the trial court’s rationale.
At the time of his arrest, the defendant had on his person neither drugs nor a large amount of money commonly associated with illegal drug transactions. The state’s evidence showed that the defendant was seen discarding from his person an object that was later found to be narcotics. The defendant testified that the police had observed another detainee discard several glassine envelopes on the floor next to the defendant and subsequently had arrested the defendant. The trial court instructed the jury on both actual and constructive possession as follows: “Possession as used in the statute means to have physical possession or otherwise to exercise dominion or control over tangible property. That is, the State must prove beyond a reasonable doubt that the defendant exercised dominion or control over the cocaine and/or heroin, had knowledge of its presence and had knowledge of its character. Possession may be actual or constructive. Possession, whether it is actual or constructive, may be proven by either direct or circumstantial evidence. Keep in mind that possession of cocaine and/or heroin here and not ownership is all that is required. Actual possession is established if it is shown that the defendant had actual physical possession. Constructive possession is established if it is shown that the defendant exercised dominion and control over the cocaine and/or the heroin, and had actual knowledge of its presence.” See, e.g., State v. Somerville, 214 Conn. 378, 390, 572 A.2d 944 (1990); State v. Alfonso, 195 Conn. 624, 633, 490 A.2d 75 (1985). Finally, the trial court gave the jury examples of constructive possession similar to those we upheld in State v. Williams, 169 Conn. 322, 334-36, 363 A.2d 72 (1975).
In State v. Alfonso, 195 Conn. 624, 490 A.2d 75 (1985), we adopted the principle enunciated in Evans v. United States, 257 F.2d 121, 128 (9th Cir.), cert. denied, 358 U.S. 866, 79 S. Ct. 98, 3 L. Ed. 2d 99, reh. denied, 358 U.S. 901, 79 S. Ct. 221, 3 L. Ed. 2d 150 (1958). In Evans, the defendant was a frequent visitor on premises leased by another person. Id., 127-28. Marihuana was found under a carpet when only the defendant and the lessee were present. Id. Although the defendant did not have exclusive possession of the premises, the court affirmed his conviction based on his statement substantiating the lessee’s disclaimer of ownership of the drugs. Id., 128-29. In Alfonso and subsequent Connecticut cases, the principle articulated in Evans v. United States, supra, has been applied to claims of evidentiary insufficiency where a defendant convicted of narcotics possession was not in exclusive possession of the premises. See, e.g., State v. Somerville, 214 Conn. 378, 390-91, 572 A.2d 944 (1990); In re Benjamin C., 22 Conn. App. 458, 461, 577 A.2d 1117 (1990); State v. Brunori, 22 Conn. App. 431, 436, 578 A.2d 139, cert. denied, 216 Conn. 814, 580 A.2d 61 (1991); State v. Williams, 12 Conn. App. 225, 235, 530 A.2d 627 (1987).
We acknowledge the argument made by the dissent that the defendant was entitled to a jury instruction on the nonexclusive possession of the premises because the defendant did not have exclusive possession of the apartment where the narcotics were found and the narcotics were not found on the defendant’s person. The rule of law invoked by the defendant in support of the requested instruction; State v. Alfonso, 195 Conn. 624, 633, 490 A.2d 75 (1985); was designed to prevent a jury from inferring a defendant’s possession of narcotics solely from the defendant’s nonexclusive possession of the premises where the narcotics are found. In the present case, there was no risk that the jury would infer the defendant’s possession of the drugs from the mere fact that he was in nonexclusive possession of the premises because the evidence established that either the defendant or another detainee identified by the defendant discarded the drugs. The rationale behind the rule set forth in Alfonso is, therefore, inapplicable to the present case.
Dissenting Opinion
dissenting. The sole issue presented on appeal from the Appellate Court is whether the trial court, in this prosecution for the illegal possession of narcotics with intent to sell, should have instructed the jury on the doctrine of “non-exclusive possession of the premises” in accordance with the defendant’s request to charge.
I will not reiterate the detailed facts set forth in the majority opinion which the jury could have found. Nevertheless, some of the evidence will be repeated as it specifically relates to this issue.
The state was required to prove for conviction the element that the defendant had “possession” of the narcotics. General Statutes § 21a-279 (a).
“ ‘A request to charge which is relevant to the issues of the case and which is an accurate statement of the law must be given. . . .’ ” State v. Allen, 216 Conn. 367, 386-87, 579 A.2d 1066 (1990), quoting State v. Casey, 201 Conn. 174, 178, 513 A.2d 1183 (1986). Accordingly, for the defendant to have been entitled to the “non-exclusive premises” instruction, there must have been evidence upon which the jury could find that (1) the defendant did not have exclusive possession of the premises where the narcotics were found, and (2) the state relied upon the defendant having constructive possession of the narcotics because they were not found on the person of the defendant.
The first requirement that the defendant did not have exclusive possession of the premises has been met. Although the Appellate Court characterized this case as “not a situation of nonexclusivity” of the premises where the narcotics were found; State v. Nesmith, 24 Conn. App. 158, 162, 586 A.2d 628 (1991); the majority
The second requirement that the narcotics were not in the actual possession of the defendant has also been met. The state’s version of the facts confirms this and the trial judge specifically charged the jury on constructive possession.
Third, the majority assumes that the jury was required to believe either the state’s version or the defendant’s version, but that is not the case. The jury
Finally, the defendant was entitled to the instructions because he had also been charged with possession of cocaine, which had been found only in the plastic vials on the floor of the back bedroom.
The majority attempts to distinguish State v. Alfonso, supra. Alfonso involved a determination of whether “the evidence adduced at trial was insufficient to support a finding of guilty beyond a reasonable doubt.” Id., 633. In order to make that determination, this court applied the “non-exclusive possession of the premises” rule. The majority relies upon the statement in State v. Alfonso, supra, 634-35, that “the state offered no supporting evidence that would have justified an inference that the defendant possessed the marihuana.” This statement in Alfonso, however, had to do with a determination of whether there had been “other incriminating circumstances tending to buttress such an inference” that would have allowed a conviction for possession of narcotics when the defendant had not been in exclusive possession of the premises and the state could have proven only constructive possession of the narcotics.
In the present case, we are considering whether the jury instruction should have been given and not whether the substantive rule should be applied in order to determine the sufficiency of the evidence. If the instruction on the rule of the nonexclusive possession of the premises had been given, surely, the jury could have reasonably drawn an inference of possession of the narcotics because it could reasonably have found that the actions of the defendant constituted “other incriminating circumstances tending to buttress such an inference.” That, however, is a jury issue to be determined only after it had the guidance of an instruction on the law of nonexclusive possession of the premises.
The failure to give the nonexclusive possession instruction, combined with the court’s instruction on
Accordingly, I respectfully dissent.
The defendant submitted in a timely manner the following request to charge: “In this connection I must explain the rule of law known as the doctrine of non-exclusive possession. That rule is this:
“Where Mr. Nesmith is not in exclusive possession of the place, here the apartment, where the heroin and cocaine is found, you may not conclude that he knew of its presence and that he had control of them, unless he made some incriminating statement, or unless there are some other circumstances which tend to support a conclusion or buttress such an inference. State v. Hill, 201 Conn. 505, 514-16 [523 A.2d 1252] (1986); State v. Alfonso, 195 Conn. 624, 633 [490 A.2d 75] (1985); Devit & Blackmar, Federal Jury Practice & Instruction, Sections 16.07, pp. 512-13 (3rd Ed. West 1977); Borden & Orland, 5 Connecticut Practice Criminal Jury Instructions, Sections 15.2, 15.3, pp. 400-402, 410-13.”
See footnote 1 of the majority opinion.
The court instructed the jury on constructive possession as follows: “Possession may be actual or constructive. Possession, whether it is actual or constructive, may be proven by either direct or circumstantial evidence. Keep in mind that possession of cocaine and/or heroin here and not ownership is all that is required.
“Actual possession is established if it is shown that the defendant had actual physical possession. Constructive possession is established if it is shown that the defendant exercised dominion and control over the cocaine and/or the heroin and had actual knowledge of its presence. Remember that constructive possession requires a showing of two things: Control and knowledge.
“A simple example of constructive possession which is by no means intended as an exclusive example is that for instance, when I arrived here in the courthouse this morning, I came in carrying my briefcase. That briefcase was in my actual possession as I carried it from my car to my chambers. Although I did not carry it here into the courtroom with me, it is still in my constructive possession. It is my property. It is located in my chambers and I continue to exercise dominion and control over it.”
An example of a jury charge on nonexclusive possession of the premises is as follows: “Whether the defendant had possession of the substance in this case is a question of fact for you to decide, and you may, as I have told you, draw reasonable and logical inferences from the evidence.
“(In this connection, there is another rule of law of which you must be aware. That rule is this: WTiere the defendant is not in exclusive possession of the premises where the narcotics are found, you may not infer that he knew of their presence and that he had control of them, unless he made
“(Therefore, if you find that the defendant was not in exclusive possession of the premises where the narcotics were found, in order to infer that he knew of their presence, and that he was in control of them, you must also find that he made an incriminating statement or that there are other circumstances which tend to support that inference.
“(If, however, you find, from all the facts and circumstances, that the defendant was in exclusive possession of the premises where the narcotics were found, you may also infer that he knew of their presence there and that he had control of them. In that situation, in order to infer that he knew of their presence and that he was in control of them, you do not have to find that he made some incriminating statement or that there are other circumstances which support that inference.)” (Emphasis in original.) 5 Connecticut Practice, D. Borden & L. Orland, Connecticut Criminal Jury Instructions (1986) § 15.2.
The substitute information charged that “at or about 7:15 p.m. at Apartment 104, Building 31, Father Panik Village, Bridgeport, [the defendant] did unlawfully possess ... a certain narcotic substance, to wit: Heroin and Cocaine . . . .” (Emphasis added.)