STATE OF CONNECTICUT v. SHAWN G.*
(AC 42617)
Appellate Court of Connecticut
October 5, 2021
Bright, C. J., and Elgo and Moll, Js.
Argued December 2, 2020
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Syllabus
Convicted, after a jury trial, of the crimes of possession of narcotics with intent to sell by a person who is not drug-dependent, criminal possession of a revolver and risk of injury to a child, and, after a plea of guilty, of being a persistent serious felony offender, the defendant appealed to this court, claiming that the evidence was insufficient to sustain his conviction and that the trial court improperly declined to issue a capias he requested. The police had executed a search warrant on the defendant‘s apartment, where he lived with his wife and minor stepchildren. During their search of the apartment, the police found, inter alia, a loaded revolver and cash in a storage container, crack cocaine in a dresser drawer, used drug baggies that tested positive for cocaine residue and a digital scale. Two cell phones also were found during a search of the defendant‘s person. The defendant told the police that the revolver was his and that he had bought it to protect his family. Held:
- The evidence was sufficient to support the defendant‘s conviction of the weapon and drug charges, but his conviction of risk of injury to a child could not stand:
- The evidence was sufficient to establish that the defendant had dominion and control over and constructively possessed the revolver, as his ownership of the revolver was the ultimate manifestation of dominion and control; the defendant‘s admission to the police that he purchased the revolver to protect his family supported the conclusion that he intended to exercise dominion and control over it by using it for that purpose, and, notwithstanding his contention that he was not in exclusive possession of the apartment and that the state never proved that he resided there at the time of the search, there was abundant evidence from which the jury could conclude that the defendant lived there, including the concession by his counsel that he spent time there with his wife and family, and, that the revolver was found in the bedroom he shared with his wife, reinforced the evidence of his ownership of and intention to maintain dominion and control over the revolver.
- The defendant‘s claim that the state failed to prove that he constructively possessed the narcotics found in his bedroom was unavailing, the confluence of incriminating statements and circumstances having supported the inference that he was in a position of control over the narcotics and, thus, constructively possessed them: the jury had evidence before it that guns frequently are used by drug dealers to protect themselves and their cash and narcotics, the presence of the loaded revolver in the bedroom was relevant in determining whether the defendant intended to exercise dominion and control over the narcotics, the cash found in the same storage container as the revolver was in denominations that were significant to the purchase of narcotics, and digital scales are commonly used to ensure that narcotics are accurately measured for packaging and distribution; moreover, as the bedroom is an intimate area of the home, the jury reasonably could have concluded that access to it would ordinarily be limited to the defendant and his wife, and the cumulative effect of the most incriminating statements and circumstances relating to the conduct of someone involved in the sale of narcotics implicated the defendant, rather than his wife.
- The mere presence of a firearm hidden in a storage container in the defendant‘s bedroom did not constitute a situation under the risk of injury statute (
§ 53-21 (a) (1) ) in which a child was likely to be injured, and the state conceded that it failed to present sufficient evidence with respect to that charge; accordingly the judgment was reversed with respect to that conviction.
- The defendant failed to demonstrate that the trial court violated his sixth amendment right to compulsory process when it declined to issue a capias for a police officer who failed to appear at trial in response to a subpoena and denied the defendant‘s request for a continuance:
- Although the trial court mistakenly believed it could not issue the capias in the absence of in-hand service of the subpoena on the officer, who was in Florida at the time of trial, it properly considered the interwoven nature of the defendant‘s requests for the capias and a continuance before it denied the request for a continuance, which the defendant did not challenge on appeal, as the court had before it uncontroverted evidence that the officer had been out of state at all relevant times and would remain so for another two weeks, the defendant already had been granted continuances to procure witnesses, his request was untimely, the length of the requested continuance was too long, the proffered testimony would be cumulative of evidence already before the jury, and the denial of the continuance would not impair his ability to defend himself.
- Any violation of the defendant‘s sixth amendment right to compulsory process stemming from the trial court‘s refusal to issue a capias to procure the police officer‘s presence was harmless beyond a reasonable doubt, as defense counsel conceded that the officer‘s testimony might have been cumulative of evidence that was already before the jury, the impact of the testimony would have been inconsequential, as the defendant never proffered that it would undermine the evidence against him, and, given that the officer had discovered the narcotics in the bedroom and heard the defendant confess that the gun was his, the testimony likely would have been adverse to the defense, for which the defendant never articulated to the court a reason to believe otherwise.
Argued December 2, 2020—officially released October 5, 2021
Procedural History
Two part substitute information charging the defendant, in the first part, with the crimes of possession of narcotics with intent to sell by a person who is not drug-dependent, criminal possession of a revolver and risk of injury to a child, and, in the second part, with being a persistent serious felony offender, brought to the Superior Court in the judicial district of Middlesex, where the first part of the information was tried to the jury before Suarez, J.; verdict of guilty; thereafter, the defendant was presented to the court on a plea of guilty to the second part of the information; judgment of guilty in accordance with the verdict and plea, from which the defendant appealed to this court. Reversed in part; judgment directed.
Timothy J. Sugrue, assistant state‘s attorney, with whom, on the brief, were Michael A. Gailor, state‘s attorney, and Russell C. Zentner, senior assistant state‘s attorney, for the appellee (state).
Opinion
ELGO, J. The defendant, Shawn G., appeals from the judgment of conviction, rendered after a jury trial, of one count of possession of narcotics with intent to sell by a person who is not drug-dependent in violation of
At trial, the jury was presented with evidence of the following facts. The defendant lived in the first floor apartment of a two-story, multifamily house at 215 Pearl Street in Middletown (apartment). He shared the apartment with his wife and his two stepchildren—a sixteen year old boy and a twelve year old girl. On May 31, 2017, officers from the Middletown Police Department executed a search warrant on the defendant‘s apartment. When they arrived at the apartment, they observed the defendant and another male standing in the street. The police then went to the apartment, where the defendant‘s wife answered the door. The defendant‘s stepchildren were in the apartment at that time. During the search of the apartment, the
The defendant subsequently was arrested and charged with the aforementioned offenses. A trial followed, at the conclusion of which the jury found the defendant guilty of all counts. The defendant thereafter pleaded guilty to being a persistent serious felony offender in violation of
I
The defendant claims that the evidence adduced at trial was insufficient to establish his guilt for each of the three offenses of which he was convicted. The state concedes that the evidence is insufficient to support his conviction of risk of injury to a child but contends that the evidence was sufficient to support his conviction of criminal possession of a revolver and possession of narcotics with intent to sell by a person who is not drug-dependent. We agree with the state.
As this court has observed, “[a] defendant who asserts an insufficiency of evidence claim bears an arduous burden.” State v. Hopkins, 62 Conn. App. 665, 669-70, 772 A.2d 657 (2001). “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 . . . . This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury‘s verdict. . . .
“While the jury must find every element 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. . . . On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury‘s verdict of guilty.” (Internal quotation marks omitted.) State v. Capasso, 203 Conn. App. 333, 338-39, 248 A.3d 58, cert. denied, 336 Conn. 939, 249 A.3d 352 (2021).
A
The defendant first claims that there was insufficient evidence to convict him of criminal possession of a revolver in violation of
The following additional facts are relevant to this claim. While searching the bedroom of the apartment, Detective Daniel Schreiner found a loaded Taurus .38 special revolver and $2661 in cash inside a stackable drawer. The uniform arrest report, which the defendant signed while being processed, listed the apartment as his address. Subsequently, the police questioned the defendant at the Middletown police station. At that time, the defendant waived his Miranda3 rights in writing. During questioning by detectives, the defendant stated that the revolver was his and that he had purchased it for $800 because he needed it to protect his family.
Section 53a-217c (a) provides in relevant part: “A person is guilty of criminal possession of a pistol or revolver when such person possesses a pistol or revolver, as defined in section 29-27, and (1) has been convicted of a felony . . . .”4
As our Supreme Court recently explained, “there are two kinds of possession, actual and constructive. . . . [C]onstructive possession is possession without direct physical contact. . . . To establish constructive possession, the control must be exercised intentionally and with knowledge of the character of the controlled object. . . . Moreover, [when] the defendant is not in exclusive possession of the premises where the [contraband is] found, it may not be inferred that [the defendant] knew of the presence of the [contraband] and had control of [it], unless there are other incriminating statements or circumstances tending to buttress such an inference. . . . [A]lthough mere presence is not enough to support an inference of dominion or control, [when] there are other pieces of evidence tying the defendant to dominion [or] control, the [finder of fact is] entitled to consider the fact of [the defendant‘s] presence and to draw inferences from that presence and the other circumstances linking [the defendant] to the crime. . . .
“[A] case for constructive possession of a firearm often is necessarily built on inferences, and a jury may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . . Although [p]roof of a material fact by inference from circumstantial evidence need not be so conclusive as to exclude every other hypothesis . . . it must suffice to produce in the mind of the trier a reasonable belief in the probability of the existence of the material fact. . . . [I]f the correlation between the facts and the conclusion is slight, or if a different conclusion is more closely correlated with the facts than the chosen conclusion, the inference is less reasonable. At some point, the link between the facts and the conclusion becomes so tenuous that we call it speculation. . . . Therefore, [b]ecause [t]he only kind of an inference recognized by the law is a reasonable one . . . any such inference cannot be based on possibilities, surmise or
In support of his argument that the evidence was insufficient, the defendant argues that the evidence demonstrates only that he had knowledge of the revolver and, further, that the state never proved that he actually resided at the apartment at the time of the search. Relying on State v. Gainey, 116 Conn. App. 710, 977 A.2d 257 (2009), and State v. Billie, 123 Conn. App. 690, 2 A.3d 1034 (2010), the defendant contends that the evidence is insufficient to establish dominion and control over the revolver. We disagree.
In Gainey, police officers executed a search warrant on the defendant‘s residence, where they detained the defendant and a female individual inside. State v. Gainey, supra, 116 Conn. App. 712. While searching the apartment, the police found a set of keys and an eviction notice addressed to the defendant and Jane Doe in one of the bedrooms, as well as a scale. Id. Their search continued in the yard to a vehicle, which they unlocked with keys found in the bedroom. Id. Inside the vehicle was a cell phone instructional manual. Id. Officers then found fifteen bags of heroin hidden in the ashtray area of the vehicle‘s rear passenger compartment. Id., 712-13.
After the defendant was convicted of possession of narcotics on the theory that he constructively possessed the drugs, this court determined that the evidence was insufficient to establish constructive possession because there was “no more than a temporal and spatial nexus between the defendant and the contraband . . . .” Id., 722. As the court noted, “[t]he eviction notice, without more, was insufficient to show that the room in which it was found was the defendant‘s bedroom, and, further, it could not be used to show that the room was exclusively for the use of the defendant. Presumably, an eviction notice that was addressed to both the defendant and a Jane Doe would concern any inhabitant of the house. There was also testimony about a woman being inside the house when the warrant was served. The items found inside the vehicle do not buttress the inference of exclusive control, either. Again, paperwork regarding the house, even in the defendant‘s name, does not evince control, especially if the jury had to consider that the house was inhabited by at least two persons. Additionally, the testimony regarding the [cell phone] instruction book was that the defendant‘s name was decorated ‘with hearts and designs’ and does not overwhelm us that there is more than a temporal or spatial nexus between the defendant and the drugs that were found in the backseat ashtray.” Id., 722-23.
As the court emphasized, “the search did not yield any insurance or registration cards, and the last registered owner of the vehicle was not the defendant.” Id., 712. Because none of the evidence in the home was sufficient to demonstrate that the defendant owned the vehicle and, more specifically, connected him to the narcotics found therein, this court concluded that the state could not establish that
In Billie, an informant told the police that he had witnessed a “black male” place narcotics underneath the rear porch of a particular residence. State v. Billie, supra, 123 Conn. App. 692. In response, officers were dispatched to the residence, where they discovered a clear, plastic sandwich bag underneath the rear porch area containing twenty-two smaller, individually wrapped packages of crack cocaine. Id. The police then removed all but one of the smaller packages, replaced the sandwich bag in the hidden location, and set up surveillance of the property. Id. Several hours later, the police observed the defendant enter the driveway at the front of the property and walk to the location of the narcotics. Id., 693. After officers emerged and identified themselves, the defendant dropped the sandwich bag containing only the single package of crack cocaine along with another bag containing marijuana. Id. The defendant thereafter was convicted of possession of narcotics with intent to sell under
On appeal, the defendant conceded that he had possession of the single package of cocaine recovered after his arrest but argued that the state failed to present sufficient evidence that he constructively possessed the remaining twenty-one packages. Id., 697-98. The state noted that the defendant “purposely entered the property, proceeded directly to the location of the narcotics and immediately removed the sandwich bag from the hidden location without having to look or feel around,” and that the defendant was a prior resident at the location. Id., 699. On appeal, this court reversed the judgment of conviction, reasoning that “the state‘s argument conflates the two separate requirements of constructive possession: knowledge and dominion and control.” Id. The court stated: “[W]e believe that this evidence is relevant to whether the defendant had knowledge of the narcotics but does not support a reasonable inference of dominion and control. As this court has recognized, contraband found in a public area could have been secreted there by virtually anyone.” (Internal quotation marks omitted.) Id.
In the present case, the defendant argues that, like the defendant in Gainey, he was not in exclusive possession of the apartment and the firearm was not found on his person, and, as in Billie, his statements to the police indicate that, at most, he had knowledge of the revolver. Therefore, he contends that the evidence was insufficient to prove that he exercised dominion or control over the revolver. The evidence, however, does not support his contention that he had only “mere knowledge” of the revolver, as the defendant admitted to the officers that he purchased the revolver for personal use. In the absence of evidence that the defendant was deprived of physical possession, his ownership of the revolver is the ultimate manifestation of dominion and control. See Black‘s Law Dictionary (6th Ed. 1990) p. 1106 (Ownership is defined as “[t]he complete dominion, title, or proprietary right in a thing or claim. . . . The right of one or more persons to possess and use a thing to the exclusion of others.“). Furthermore, the defendant‘s statement that he purchased the revolver to protect his family supports the conclusion that he intended to exercise dominion and control over it by using it for that purpose.
Moreover, the argument that the state never proved that the defendant lived at the apartment in question is both unfounded and beside the point. First,
B
The defendant next claims that the state presented insufficient evidence to support his conviction of possession of narcotics with intent to sell by a person who is not drug-dependent in violation of
The following additional facts are relevant to the defendant‘s claim. When the police arrived at the apartment to execute their search warrant, the defendant‘s wife answered the door, joined by a large dog, a pit bull.5 At the request of the police, the defendant‘s wife put the dog in a crate. While searching the apartment, Detective Jorge Yepes found 3.1 grams of crack cocaine inside the upper left drawer of a dresser in the bedroom.6 The dresser also had both men‘s and women‘s clothes in it. In the pocket of one of the men‘s pants and on the bedroom floor, Yepes found two “used drug baggies,” which later tested positive for cocaine residue. At trial, Sergeant Frederick Dirga testified that the pants appeared to be for a “heavyset, large male.” At the time, the defendant was five feet, nine inches, in height and weighed 240 pounds. The police also found two Michael Kors watches in the bedroom on the top of the stackable storage containers. Baughnita Leary, the defendant‘s girlfriend, testified that the watches were gifts that she had given to the defendant. In the basement of the apartment, the police found a digital scale, typically used by drug dealers to measure cocaine for packaging for sale, inside a bag of men‘s clothing identified as belonging to the defendant. At the time of the search, the defendant
In addition to the watches and revolver establishing the defendant‘s residence at the apartment bedroom, Dirga testified at trial that he had seen the defendant “come and go” to and from the apartment “too many times to count” during the period of February to May, 2017, and that the defendant lived on the first floor. Detective Nathan Peck, to whom the defendant admitted that he owned the revolver, testified that he also witnessed the defendant “come and go” to and from the residence on numerous occasions.
The state also presented evidence that the defendant had various expensive expenditures that were inconsistent with his reported employment and wage history. For example, the state presented the arrest report, which was filled out by the police during their questioning of the defendant, in which the defendant listed his current occupation as “unemployed.”8 The state also offered the testimony of Emilio Theodoratos, a wage employment agent from the Department of Labor. Theodoratos testified that he had reviewed the defendant‘s reported employment history. According to a Department of Labor automated benefits system report of the defendant‘s reported employment and wage history, there was no record of any employment during the first six months of 2017 and no record of employment at all in 2016. However, while searching the glove compartment of the defendant‘s automobile, the police located a bill of sale for a 2017 Victory motorcycle. That bill of sale indicated that the defendant paid for a $21,516.87 Victory Magnum motorcycle in full and in cash on February 8, 2017.
The defendant argues that there was insufficient evidence to sustain his conviction because the state failed to prove beyond a reasonable doubt that he constructively possessed the cocaine. The state counters that the evidence and reasonable inferences drawn therefrom establish incriminating circumstances from which the jury could infer that the defendant knew of the presence and character of the cocaine and exercised dominion and control over it. We agree with the state.
“[T]o prove illegal possession of a narcotic substance, it is necessary to establish that the defendant knew the character of the substance, knew of its presence and exercised dominion and control over it. . . . Where, as here, the cocaine was not found on the defendant‘s person, the state must proceed on the theory of constructive possession, that is, possession without direct physical contact. . . . One factor that may be considered in determining whether a defendant is in constructive possession of narcotics is whether he is in possession of the premises where the narcotics are found. . . . 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. . . . To mitigate the possibility that innocent persons might be prosecuted for . . . possessory offenses and to assure that proof exists beyond a reasonable doubt, it is essential that the state‘s evidence include more than just a temporal and spatial nexus between the defendant and the contraband.” (Citation omitted; internal quotation marks omitted.) State v. Leon-Zazueta, 80 Conn. App. 678, 683, 836 A.2d 1273 (2003), cert. denied, 268 Conn. 901, 845 A.2d 405 (2004).
In support of his claim of evidential insufficiency, the defendant relies on State v. Nova, 161 Conn. App. 708, 129 A.3d 146 (2015). In Nova, the police obtained a warrant to search both the defendant and an apartment building that the police believed was the defendant‘s residence. Id., 710. While surveilling the building in preparation for execution of the warrant, the police saw the defendant drive into the building‘s parking lot, exit the vehicle, and enter the apartment through the main entry door, which opened into the kitchen. Id., 710-11. The defendant then reemerged, ascending the external staircase of the balcony on the third floor, remained on the balcony for approximately one minute, and then descended from the balcony and returned to his vehicle. Id. When the police subsequently executed the search warrant on the apartment, they found drugs and drug paraphernalia in the kitchen and on the balcony. Id., 712. The search of the defendant revealed two cell phones but no cash or drugs. Id., 713.
In reversing the defendant‘s conviction, this court stated that “[i]t is undisputed
We are not persuaded that the facts in Nova compel a similar result here. First, as we have previously explained, the defendant‘s nonexclusive possession of the apartment, and the bedroom in particular, does not preclude a finding of constructive possession where “there are other incriminating statements or circumstances tending to buttress . . . an inference [of constructive possession].” (Internal quotation marks omitted.) State v. Winfrey, 302 Conn. 195, 211, 24 A.3d 1218 (2011); cf. State v. Hill, 201 Conn. 505, 516, 523 A.2d 1252 (1986) (“[t]he essence of exercising control is not the manifestation of an act of control but instead it is the act of being in a position of control coupled with the requisite mental intent“). In State v. Winfrey, supra, 211-13, for example, our Supreme Court concluded that the defendant was in constructive possession of contraband found in the console of his wife‘s vehicle, notwithstanding the presence of another passenger, on the basis of factors that made it more likely that the defendant, rather than the passenger or his wife, owned the contraband. See also State v. Hill, supra, 516 (“The phrase ‘to exercise dominion or control’ as commonly used contemplates a continuing relationship between the controlling entity and the object being controlled. Webster‘s Third New International Dictionary defines the noun ‘control’ as the ‘power or authority to guide or manage.’ “).
In considering what factors may reasonably manifest the exercise of dominion or control when a defendant is in nonexclusive possession of the premises where contraband is found, we find instructive our Supreme Court‘s decision in State v. Butler, 296 Conn. 62, 993 A.2d 970 (2010). In that case, the court recognized that, when a defendant is not in exclusive possession of a vehicle, evidence from which a jury reasonably can infer that a defendant is a
In the present case, the jury had before it a confluence of incriminating statements and circumstances that support the inference that the defendant was in a position of control over the narcotics and possessed the requisite mental intent. As we noted in part I A of this opinion, the evidence presented at trial was sufficient to establish the defendant‘s intention to maintain his dominion and control over the revolver found in the bedroom he shared with his wife. By the same token, the fact that the fully loaded revolver was in the defendant‘s bedroom was a relevant factor for the jury to consider in determining whether the defendant also intended to exercise dominion and control over the narcotics found there, as the jury had evidence before it that guns frequently are used by drug dealers to protect themselves, their cash, and their narcotics.9 See, e.g., State v. Butler, supra, 296 Conn. 74 (“[w]e have often stated . . . that it is reasonable for police officers to suspect guns to be associated with illegal drug selling operations” (internal quotation marks omitted)); State v. Mann, 271 Conn. 300, 325, 857 A.2d 329 (2004) (“Connecticut courts repeatedly have noted that [t]here is a well established correlation between drug dealing and firearms,” and “[f]ederal courts also have recognized this fact of life” (internal quotation marks omitted)), cert. denied, 544 U.S. 949, 125 S. Ct. 1711, 161 L. Ed. 2d 527 (2005). The evidence also established that the $2661 in cash discovered in the apartment bedroom not only was found in the same storage container as the revolver, but also was in denominations of five $100 bills; four $50
In analyzing a claim of constructive possession when a defendant has nonexclusive possession of the premises, we reiterate that the bedroom, unlike the kitchen in Nova, is not a common space but an intimate area of a home. As such, a jury reasonably could conclude that, for purposes of assessing the intention to exercise dominion and control, access to the bedroom would ordinarily be limited to the defendant and his wife. Further, the most incriminating statements and circumstances relating to the conduct of someone involved in the sale of narcotics—such as the revolver that the defendant admittedly owned, the large amount of cash found in the same storage container as the revolver, the drug baggie found in a pair of men‘s pants matching the defendant‘s physical description, the digital scale found in the bag of the defendant‘s clothing, the two cell phones found on the defendant, and the evidence of the defendant‘s cash purchase of the Victory motorcycle—all implicate the defendant, rather than his wife. As in Butler, the cumulative effect of this evidence supports an inference that the defendant intended to exercise dominion and control over the narcotics and, therefore, constructively possessed the cocaine. See State v. Slaughter, 151 Conn. App. 340, 349–50, 95 A.3d 1160 (testimony about modus operandi of drug dealers coupled with defendant‘s conduct sufficient to establish constructive possession even though defendant‘s girlfriend was lessee of apartment where narcotics were found because there was no evidence to support belief that girlfriend knew of presence of drugs or was involved in sale of illicit drugs), cert. denied, 314 Conn. 916, 100 A.3d 405 (2014). We, therefore, conclude that the evidence before the jury was sufficient to support a finding that the defendant constructively possessed the cocaine found in the apartment.
C
The defendant also claims that the state presented insufficient evidence to support his conviction of risk of injury to a child in violation of
On our review of the record, we agree with the defendant. Moreover, the state concedes that it failed to pres- ent sufficient
II
As a final matter, the defendant claims that the court violated his right to compulsory process under the
A capias is a vehicle to compel attendance at a judicial proceeding. See Pembaur v. Cincinnati, 475 U.S. 469, 472 n.1, 106 S. Ct. 1292, 89 L. Ed. 2d 452 (1986) (“[a] capias is a writ of attachment commanding [an] official to bring a subpoenaed witness who has failed to appear before the court to testify and to answer for civil contempt“); DiPalma v. Wiesen, 163 Conn. 293, 298, 303 A.2d 709 (1972) (“[i]f one is not warranted in refusing to honor a subpoena and it is clear to the court that his absence will cause a miscarriage of justice, the court [is permitted to] issue a capias to compel attendance“). As one court has noted, it is “an extraordinary measure“; Wright v. Warden, Superior Court, judicial district of Tolland, Docket No. CV-15-4006830-S (January 18, 2019) (67 Conn. L. Rptr. 659, 660); that involves the arrest of the witness in question. See
A
To properly consider the defendant‘s claim regarding the alleged violation of his
On that same day, as well as during the court‘s advisement to venirepersons, the court stated that it anticipated evidence starting on July 16, 2018, and continuing for approximately one week, “plus or minus a day or two.” The court further informed potential jurors that, although “nobody can really give you an end date . . . we anticipate about a week for all the evidence and the conclusion of the case.”
During its case-in-chief, the state established that Officers Schreiner, Mark Lemieux, Dirga, and Yepes executed the search warrant on the apartment. Both Schreiner and Dirga testified that Yepes was on vacation in Florida for the month of July. Dirga also testified that he was present during the search of the apartment bedroom and had observed Yepes when he found the crack cocaine inside the bedroom dresser and the baggies containing cocaine residue in the pocket of the men‘s pants and on the bedroom floor.
At the end of the day on July 16, 2018, the court reviewed the remaining schedule with the jury and, on the basis of the prosecutor‘s representations, indicated that the state intended to conclude its case-in-chief on Thursday, July 19. On July 18, the state presented the testimony of six witnesses and then indicated that it likely would conclude its case-in-chief the next morning. On July 19, the state rested its case. At that time, the defendant moved for a judgment of acquittal, which the court denied.
Defense counsel then asked the court for a recess to contact his witnesses. Upon his return, defense counsel informed the court that he was not prepared to begin the defendant‘s case until the next morning. Counsel, therefore, requested a continuance. Although the court acknowledged that the jury was aware that the case could “spill out” to the following week, after asking counsel whether he could secure a witness for that afternoon, the court ultimately granted the defendant‘s request to continue the case to the next day, July 20.
Prior to adjournment, the prosecutor asked the court to ask defense counsel “if he‘s going to need any of the police officers because what happens is, he subpoenas them . . . [t]hey cannot get a hold of [defense counsel], and then, they end up calling me to find out about whether or not they are required to be here . . . .” The prosecutor noted that three police officers who had been subpoenaed by the defendant to appear that morning had been
The following day, defense counsel began his case by calling Leary, whose testimony concluded at 11:25 a.m. Defense counsel then informed the court that he “ha[d] several witnesses . . . coming at two o‘clock” who were all law enforcement officers. When the court inquired as to whether counsel had a witness who could fill the gap before the afternoon recess, defense counsel replied: “I believe that [the prosecutor] represented that one of the subpoenaed witnesses, Detective Yepes, is not available?” In response, the prosecutor reiterated that the testimony at trial already had established that Yepes was currently out of state and would be for the entire month of July, and that the prosecutor previously had apprised defense counsel of that fact “quite some time ago.” The court then recessed for ten minutes at 11:55 a.m. after asking defense counsel to contact his witnesses to determine whether any could testify before the 1 p.m. lunch recess. When the proceeding reconvened at 12:31 p.m., defense counsel represented to the court that he believed his witness was “on his way up” to the courtroom. At that time, the marshals indicated to the court that the witness in question was not in the building. The court thus adjourned for the lunch recess. Prior to doing so, the court instructed defense counsel to contact all of his witnesses during the lunch recess to ensure they were ready to testify “one after the other” beginning at 2 p.m. At that time, defense counsel represented to the court that he already had done so.
When the proceeding resumed after the luncheon recess, the court asked defense counsel to call his next witness. Counsel then replied, “I‘m not sure he‘s available but, at this time, the defense would call Detective George Yepes.” The court immediately excused the jury and the following colloquy occurred:
“[The Prosecutor]: Your Honor, this is done very blatantly for effect before the jury.
“The Court: Well, I‘m going to address that in a minute. . . . [Defense counsel], [i]f you are going to make—
“[Defense Counsel]: I‘m sorry?
“The Court: If you‘re going to call a witness that you know that‘s not available—
“[Defense Counsel]: Well, my understanding was, he‘s coming back Thursday.
“[The Prosecutor]: No, no, no, no.
“[Defense Counsel]: Unless I go[t] that confused.
“[The Prosecutor]: That wasn‘t . . . the testimony.”
The court then asked Attorney Corey Heiks, cocounsel for the defense, who had called Yepes as a witness, to address the issue. Heiks stated that defense counsel‘s “office has properly sent out subpoenas, one of which being Detective George Yepes. It‘s our understanding Detective Yepes would be coming back from Florida by Thursday. Here we are Friday, every reasonable inclination that he would be here and available. The Middletown Police Department accepted service . . . of the subpoena for him. . . . [The] defense‘s strategic
In response, the prosecutor stated: “I told . . . [defense counsel] before the jury selection process even commenced that [Yepes] was away for the entire month of July in Florida, so he knew it. Do you know when they dropped off the subpoena for [Yepes], knowing that? This Monday, July 16th. Okay? And he—there was testimony from a witness who stated that [Yepes] was going to be out for the month of July. So, for them to then say, we heard he was coming back Thursday, is simply not true. . . . They knew he was gone for the month of July. There was testimony of that. I told [defense counsel] he would be gone for the month of July.” The court asked defense counsel if he had in- hand service for Yepes, and defense counsel replied that he did not and instead served the subpoena on the Middletown Police Department, which accepted service on his behalf. The court then asked defense counsel to call their next witness, and the defense called Detective Michael Fonda, who was present and testified.
Following Fonda‘s testimony, the defense called Schreiner as a witness, but Schreiner was not present. After the court excused the jury, defense counsel represented that Schreiner properly had been subpoenaed and was in the state but that efforts to contact him in order to secure his timely presence had been unsuccessful. Defense counsel thus asked the court to issue a capias for Schreiner. The court replied that it was unwilling to issue a capias in the absence of proof of in-hand service of the subpoena.14 Defense counsel represented that a member of the police department had stated that he would accept service of the subpoena and “would inform everybody” of it. When the court asked if he had another witness, defense counsel responded, “[w]ell, actually, no. [Schreiner would] be the last witness, but he‘s not here and he refuses to come, I guess.” The prosecutor then requested that the court ask defense counsel what method was used to contact Schreiner because the officer had testified at trial days earlier and “could have been apprised” of “when, approximately, he would be needed.” Furthermore, the prosecutor reiterated that, “as I told you yesterday, I have had several officers say to me they could not get in touch with [defense counsel].” The court then stated that it was going to take a fifteen minute recess and instructed defense counsel to “do what you need to do to get the next witness in here if that‘s what you wish to do . . . .”
When court resumed, defense counsel represented that he had spoken to an officer at the Middletown Police Department, who was under the impression that Schreiner and Yepes were in the state and may be present at 4 p.m. that day. When defense counsel suggested continuing the
After the prosecutor noted that there was no corroboration of service, the court asked defense counsel if he had a copy of the subpoena that he issued to Schreiner. Defense counsel stated, “[y]es, I do.” The court then demanded to see it. Instead of producing the subpoena, however, defense counsel stated that he could “produce phone records since [the prosecutor] is, basically, saying that I am a liar.” Defense counsel then offered to have the marshal come in and “tell exactly how she served, and who she served,” to which the court replied: “[T]hat‘s not what I asked you. I asked you if you have a subpoena.” Defense counsel then represented that he did have a subpoena “but not in my possession at this moment.”
The court reiterated that it would like to see whether counsel had copies of the subpoena. Defense counsel responded, “okay,” after which the record indicates there was a pause before counsel continued: “Your Honor, would e-mail be sufficient? If they give me copies from e-mail or they—[do you] want to see the actual hard copy?” Defense counsel then stated that “[a] marshal was not available to bring them today, but . . . is available next week . . . or I could drive back to my office. . . . We have copies there . . . .” In light of the foregoing, the court decided to adjourn for the weekend and informed defense counsel that it was his obligation to have his witnesses at court the following Monday. The court further instructed the parties to prepare written briefs on what options were available for the court if the defendant‘s witnesses were not present at that time.
When trial resumed on Monday, July 23, 2018, the court asked if the defense had any witnesses. Defense counsel replied that he would have witnesses only if Yepes was present and represented that Yepes, like Schreiner, had been lawfully subpoenaed.15 The prosecutor at that time represented that a subpoena had been delivered to the Middletown Police Department seven days earlier, but that Yepes “was never notified of when he was supposed to be here” because “[h]e‘s been out of state.” The prosecutor also informed the court that the state had secured the presence of Schreiner, whom the defendant requested to call days earlier, and asked the court to ask defense counsel if he intended to call Schreiner as a witness. Defense counsel indicated that he planned to call Schreiner
When defense counsel then confirmed that he had another witness, the court asked counsel to call that witness. Defense counsel declined to do so, stating: “I am not calling a witness out of order. You can‘t—you can‘t force that.” In response, the court again asked defense counsel if he was requesting a continuance, and defense counsel replied: “No. I‘m asking for Detective Yepes to be here. If you want to continue the case until Detective Yepes is back from Florida, I‘m fine with that.” The court overruled that objection and ordered the defense to call its next witness, whereupon Schreiner took the witness stand.
Following Schreiner‘s testimony,16 the court asked defense counsel if he had any further witnesses, and, in the presence of the jury, he replied: “Yes, I do. Detective Yepes.” The jury once again was excused, and the court again asked defense counsel if he wanted a continuance. Defense counsel declined that offer, stating: “No. I‘m asking for Detective Yepes to be present, as he should be under the law.” The court again asked defense counsel if he had effected in-hand service of the subpoena; defense counsel replied that he had not but maintained that he was not required to do so under the rules of practice. The court at that time stated that it could not issue a capias for a witness who had not been served in hand.
When defense counsel thereafter informed the court that he had no witnesses other than Yepes, the court again asked for an offer of proof. Defense counsel replied: “All the officers involved in that investigation, all reported verbally to Detective Yepes, who was in charge. None of them have writings.” When pressed by the court, defense counsel stated that he was unsure who had written the incident report,17 but he believed that Dirga and Yepes may have signed it.
The court at that time recounted for the record the extensive procedural history underlying the issue, emphasizing that defense counsel had been aware prior to trial, and before the subpoena was issued, that Yepes was out of state and that defense counsel had the opportunity to cross-examine the other police officers involved in the search of the apartment. The court noted that, on July 9, 2018, “we had a hearing on motions” at which the prosecutor “informed the parties that [Yepes] was
“The defense feels that it‘s necessary to call [Yepes, who] . . . I would classify as a cumulative witness. I‘ve asked the defense if they‘re asking for another continuance. They‘re not asking for another continuance, but [are insisting on the testimony of Yepes, who] is not in the state of Connecticut. So, then, the question is, how do we proceed.”
The court then suggested that the only option for the defendant to secure Yepes’ testimony would be to ask for a continuance and reiterated that “[i]t‘s 10:30 a.m. [The defendant has] called one witness who, really, had nothing to say.” Defense counsel at that time stated that “the only way to resolve this properly, for [the defendant] to get a fair trial, is to continue the case when Detective Yepes is available.” The prosecutor objected to that continuance request on the grounds that (1) the state had notified defense counsel prior to trial that Yepes was going to be in Florida for the month of July and defense counsel had been afforded ample time to secure his attendance on or before July 23, (2) Yepes’ proffered testimony would be cumulative given that other Middletown police officers already had testified as to their observations of Yepes, (3) counsel had failed to produce a marshal to testify as to when the subpoena had been served, (4) there was a lack of evidence on the return of process on the subpoena, (5) a continuance would disrupt the trial because Yepes was not scheduled to return from Florida until weeks later on August 6, 2018, and (6) it was likely that jurors would become unavailable given the parameters they had been given regarding the approximate length of the trial.
The court thereafter denied defense counsel‘s request for a continuance. In so doing, the court emphasized that counsel already had been afforded multiple continuances in order to produce his witnesses, his request was untimely, the probable duration of the continuance pending Yepes’ return would be too long, Yepes’ testimony, as proffered, “would be cumulative” of evidence already before the jury, and that counsel had had the opportunity to cross-examine and confront six to eight police officers. The court further concluded that the denial of the request for a continuance
After the state‘s rebuttal witness and the defendant‘s surrebuttal witness had finished testifying, defense counsel again indicated for the record that he wanted to call Yepes. The evidence thereafter was submitted to the jury, which returned a verdict of guilty, and this appeal followed.
B
With that context in mind, we turn to
1
Relying on State v. Burrows, 5 Conn. App. 556, 500 A.2d 970 (1985), cert. denied, 199 Conn. 806, 508 A.2d 33 (1986), the defendant argues that the court improperly declined to issue a capias in the absence of in-hand service of Yepes.19 Although he acknowledges that our review of such claims generally is governed by the abuse of discretion standard, the defendant maintains that, under Burrows, the court‘s mistake of law effectively obviates that standard of review because the court could not have exercised any discretion when it believed it lacked the authority to do so. In response, the state concedes that in-hand service is not required but argues that, under the particular circumstances of this case, the issuance of a capias alone, without the granting of a continuance for the time needed to enforce it, would have been a futile act. Furthermore, because the defendant has not challenged the propriety of the court‘s denial of his request to continue the trial until Yepes returned to Connecticut several weeks later, which request was intertwined with the capias
The right to compulsory process is memorialized in the
In this case, the record reveals that, although the court articulated its mistaken belief that in-hand service of the subpoena was required to effectuate a capias, the court‘s consideration of the defendant‘s
Having previously insisted on the issuance of a capias, defense counsel responded that “the only way to resolve this properly, for [the defendant] to get a fair trial, is to continue the case when Detective Yepes is available.”20 Following the state‘s objection to another continuance, the court then considered the factors set forth in State v. Godbolt, 161 Conn. App. 367, 374-75, 127 A.3d 1139 (2015), cert. denied, 320 Conn. 931, 134 A.3d 621 (2016).21 The court emphasized that the defendant already had been afforded two continuances in order to produce his witnesses; his request was untimely; the probable duration of the continuance until Yepes’ return weeks later would be too long; Yepes’ testimony, as proffered, “would be cumulative” of evidence already before the jury; and the defense had the opportunity to cross-examine and confront one-half dozen other police officers. Accordingly, the court concluded that the denial of defense counsel‘s request for a continuance “would not impair the defendant‘s ability to defend himself with respect to these matters” and, thus, denied the request.22
On our exhaustive review of the record, we conclude that the court properly proceeded to consider the issue of
2
Even if we were to conclude otherwise, the defendant could not prevail. The state alleges, as an alternative ground of affirmance, that any violation of the defendant‘s right to compulsory process stemming from the court‘s refusal to issue a capias did not constitute harmful error. We agree.
In State v. Burrows, supra, 5 Conn. App. 559-60, this court held that the state bears the burden of proving that a violation of a defendant‘s right to compulsory process was harmless beyond a reasonable doubt. We conclude that the state has met that burden in this case.
“Whether a constitutional violation is harmless in a particular case depends upon the totality of the evidence presented at trial. . . . If the evidence may have had a tendency to influence the judgment of the jury, it cannot be considered harmless. . . . Whether such error is harmless in a particular case depends upon a number of factors, such as the importance of the [witness] in the prosecution‘s case, whether the [testimony of the witness] was cumulative, the presence or absence of evidence corroborating or contradicting the [witness] . . . and, of course, the overall strength of the prosecution‘s case. . . . Most importantly, we must examine the impact of the [witness] on the trier of fact and the result of trial.” (Internal quotation marks omitted.) State v. Quail, 168 Conn. App. 743, 762-63, 148 A.3d 1092, cert. denied, 323 Conn. 938, 151 A.3d 385 (2016).
First, with respect to the importance of Yepes’ testimony, we are persuaded that Yepes’ testimony would have been cumulative of evidence that was already before the jury. Although Yepes was the officer who found the cocaine, Dirga testified on direct examination that he personally observed Yepes when he discovered the cocaine in the upper left dresser drawer, and Dirga was cross-examined by the defense. While Yepes was present when the defendant confessed that the gun was his, the defendant‘s confession was witnessed by other officers whom the state called to testify. Lemieux and Peck testified at trial that they heard the defendant‘s confession as well. Defense counsel, when questioned by the trial court about the materiality of Yepes’ testimony, also conceded that Yepes’ anticipated testimony might have been “cumulative to what other Middletown police officers have already testified to.” In light of the foregoing, while denying the defendant‘s request for a continuance on July 23, 2018, the court made a finding that Yepes was a witness whose testimony would have been cumulative of
Next, with respect to the strength of the prosecution‘s case, we first conclude that the refusal to issue a capias or grant defense counsel a continuance to secure Yepes’ testimony was harmless with respect to the criminal possession of a revolver charge because the defendant had confessed to the police that the gun belonged to him.23 It is well established that “[a] confession, if sufficiently corroborated, is the most damaging evidence of guilt . . . and in the usual case will constitute the overwhelming evidence necessary to render harmless any errors at trial.” (Internal quotation marks omitted.) State v. Williams, 202 Conn. App. 355, 370, 245 A.3d 830, cert. denied, 336 Conn. 917, 245 A.3d 802 (2021); see State v. Iban C., 275 Conn. 624, 645, 881 A.2d 1005 (2005); see also Arizona v. Fulminante, 499 U.S. 279, 296, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991) (“[a] confession is like no other evidence“). With respect to the possession with intent to sell conviction, as discussed in part I B of this opinion, the jury reasonably could have found that the defendant had constructive possession of the cocaine that the police found in the upper left dresser drawer, particularly because the officers also discovered in the defendant‘s bedroom a drug baggie in a pair of men‘s pants matching the defendant‘s physical description that tested positive for cocaine residue. In addition, the officers found other evidence commonly associated with drug dealing during their search of the apartment, including the defendant‘s revolver, the large amount of cash in various denominations that was located in the same storage container as the revolver, the digital scale in a bag with the defendant‘s clothes, the presence of a pit bull, and the two cell phones found on the defendant.
Finally, we conclude that the potential impact of Yepes’ testimony was largely inconsequential. In State v. Burrows, supra, 5 Conn. App. 560, this court determined, in considering the defendant‘s alibi defense, that “the expected testimony of the witness [for whom the court refused to issue a capias] . . . loom[ed] as a large exculpatory element in the trial of the defendant.” As a result, this court concluded that the absence of the witness’ testimony would have had an impact on the trial and, thus, constituted harmful error. See id. Unlike in Burrows, the defendant here never proffered that Yepes’ testimony would undermine the state‘s evidence against him. Indeed, given that Yepes discovered the cocaine and heard the defendant confess that the gun was his, the evidence in the record before us indicates that, had Yepes been compelled to testify, his testimony likely would have been adverse to the defense, and the defendant never articulated to the court a reason for it to believe otherwise. Accordingly, we conclude that the state has demonstrated that any violation of the defendant‘s right to compulsory process stemming from the court‘s refusal to issue a capias was harmless beyond a reasonable doubt.
The judgment is reversed only as to the conviction of risk of injury to a child and the case is remanded with direction to render judgment of acquittal on that count and to resentence the defendant accordingly; the judgment is affirmed in all other respects.
In this opinion the other judges concurred.
Notes
Defense counsel also indicated that he had prepared a brief “on subpoenas and how a police officer is supposed to be served.” In response, the court stated: “That‘s not really what I asked to be briefed. What I asked to be briefed is, if you did not have any witnesses present today, how should we proceed with trial?” Defense counsel then responded by suggesting that the court consider entering a missing witness nolle as to Yepes; the court responded that it did not have the discretion to do so.
The sum and substance of Schreiner‘s testimony in the defendant‘s case-in-chief amounted to confirmation that Yepes was in charge of the investigation and that Schreiner believed that Yepes currently was out of state on the basis of what Yepes had told him before his vacation.
The incident report in question was not admitted into evidence and is not part of the record in this appeal.
In Burrows, this court concluded that “the trial court erred when it ruled it had no power to issue a capias because of the admitted lack of in-hand service of the intended witness.” State v. Burrows, supra, 5 Conn. App. 560.
Notwithstanding the requirement articulated in State v. Tomas D., supra, 296 Conn. 498, 500, that a defendant must take reasonable steps to exercise the rights to present a defense and compulsory process, including the request for a continuance, defense counsel in the present case subsequently characterized the court‘s action as “forcing [him] to . . . ask for a continuance.”
In State v. Godbolt, supra, 161 Conn. App. 367, this court stated: “A reviewing court is bound by the principle that [e]very reasonable presumption in favor of the proper exercise of the trial court‘s discretion will be made. . . . To prove an abuse of discretion, an appellant must show that the trial court‘s denial of a request for a continuance was arbitrary. . . . There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied. . . . In the event that the trial court acted unreasonably in denying a continuance, the reviewing court must also engage in harmless error analysis. . . . Among the factors that may enter into the court‘s exercise of discretion in considering a request for a continuance are the timeliness of the request for continuance; the likely length of the delay; the age and complexity of the case; the granting of other continuances in the past; the impact of delay on the litigants, witnesses, opposing counsel and the court; the perceived legitimacy of the reasons proffered in support of the request; the defendant‘s personal responsibility for the timing of the request; [and] the likelihood that the denial would substantially impair the defendant‘s ability to defend himself . . . . We are especially hesitant to find an abuse of discretion where the court has denied a motion for continuance made on the day of the trial. . . . Lastly, we emphasize that an appellate court should limit its assessment of the reasonableness of the trial court‘s exercise of its discretion to a consideration of those factors, on the record, that were presented to the trial court, or of which that court was aware, at the time of its ruling on the motion for a continuance.” (Internal quotation marks omitted.) Id., 374-75.
The defendant has not challenged the propriety of that determination in this appeal.
In this appeal, the defendant has not raised any claim regarding that confession.