State v. Lewis

967 A.2d 618

113 Conn.App. 731

STATE of Connecticut v. Demetrice L. LEWIS.

No. 28791.

Appellate Court of Connecticut.

Argued November 13, 2008.

Decided April 21, 2009.

Pamela S. Nagy, special public defender, for the appellant (defendant).

Mitchell S. Brody, senior assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Brian J. Leslie, assistant state's attorney, for the appellee (state).

BISHOP, HARPER and BEACH, Js.

BEACH, J.

The defendant, Demetrice L. Lewis, appeals from the judgment of conviction, rendered after a jury trial, of possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278(b), possession of narcotics with intent to sell within 1500 feet of a school in violation of General Statutes § 21a-278a(b), possession of drug paraphernalia with intent to use in violation of General Statutes § 21a-267(a) and possession of drug paraphernalia with intent to use within 1500 feet of a school in violation of General Statutes § 21a-267(c). On appeal, the defendant claims that (1) the trial court improperly instructed the jury by failing to define the specific intent element on all charges¹ and (2) there was insufficient evidence to support his conviction of the charges of possession of narcotics with intent to sell within 1500 feet of a school and possession of drug paraphernalia with intent to use within 1500 feet of a school. We agree with the defendant on both claims and reverse the judgment of the trial court.

The jury reasonably could have found the following facts. On June 3, 2005, at approximately 8:24 p.m., officers of the New Haven police department, including Luis Rivera, were dispatched to the intersection of North Frontage Road and Orchard Street after having received complaints of a robbery with a weapon at that location. The robbery suspects were described as three seventeen to eighteen year old men, one wearing a gray hooded sweatshirt and white "uptown" sneakers, and the other two wearing black hooded sweatshirts and blue jeans. In the area of 49 Waverly Street, Rivera and another officer stopped and detained the defendant, who was riding a bicycle and wearing dark clothing, and Joshua Williams, who was walking and wearing a gray hooded sweatshirt. Rivera stopped Williams and the other officer stopped the defendant, who had started to pedal his bicycle away as Williams was being detained.

Rivera conducted a warrant check on the defendant and found that there was an active warrant for his arrest. Rivera placed the defendant under arrest and conducted a thorough patdown of his person. Rivera discovered a clear sandwich bag in the defendant's pocket within which there were nineteen Ziploc bags, each containing a white, rock like substance, which a field test revealed to be crack cocaine. Rivera also found $116 in the defendant's front pocket, $160 in another pocket within the front pocket and $600 in his rear pocket. The money was in denominations of twenty, ten, five and one dollar bills. In the defendant's rear pocket, Rivera also found a razor blade and a paper bag containing medium and small Ziploc bags. Thereafter, the defendant was charged with possession of narcotics with intent to sell by a person who is not drug-dependent, possession of narcotics with intent to sell within 1500 feet of a school, possession of drug paraphernalia with intent to use and possession of drug paraphernalia with intent to use within 1500 feet of a school.

At trial, Michael Wuchek, a detective with the New Haven police department, testified as an expert witness on the street level sale of narcotics. He opined that the quantity of narcotics, the packaging of the narcotics, the empty bags, the razor blade and the small denominations of money found in the defendant's pockets were consistent with the street level sale of $10 bags of crack cocaine. Wuchek also testified that street level dealers often work in teams at a specific location, that a lookout riding on a bike commonly would be employed during a street level sale to identify customers or the police and that street level dealers typically would attempt to run away to avoid the police.

Anwar Houwari, a civil engineer and projects manager and record keeper in the engineering department of the city of New Haven, also testified. After examining an engineering map of the city of New Haven, Houwari determined that the distance between the Timothy Dwight School and 49 Waverly Street, where the defendant was stopped, was 1050 feet.

The defendant was found guilty by the jury of possession of narcotics with intent to sell by a person who is not drug-dependent, possession of narcotics with intent to sell within 1500 feet of a school, possession of drug paraphernalia with intent to use and possession of drug paraphernalia with intent to use within 1500 feet of a school. The defendant was sentenced to a total effective term of eighteen years incarceration, execution suspended after ten years, with four years probation. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court's failure to instruct the jury on the specific intent element of possession of narcotics with intent to sell by a person who is not drug-dependent, possession of narcotics with intent to sell within 1500 feet of a school, possession of drug paraphernalia with intent to use and possession of drug paraphernalia with intent to use within 1500 feet of a school violated his right to due process under the fourteenth amendment to the United States constitution.² We agree.

On the issue of intent, the court instructed: "Now, intent. Intent relates to the condition of mind of the person who commits the act, his purpose in doing it. As defined by our statutes, a person acts intentionally with respect to conduct when his conscious objective is to engage in such conduct. What a person's intention has been is very largely a matter of inference. No witness can be expected to come here and testify that he looked into another person's mind and saw, therein, [that it] contained a certain intention." When instructing the jury on possession of narcotics with intent to sell by a person who is not drug-dependent and possession of drug paraphernalia with intent to use, the court referred back to its general instruction on intent. The court then instructed the jury that if it found the defendant guilty of those crimes and if it found he was within 1500 feet of a school when he possessed a narcotic substance with intent to sell and possessed drug paraphernalia with intent to use, then he also would be guilty of possession of narcotics with intent to sell within 1500 feet of a school and possession of drug paraphernalia with intent to use within 1500 feet of a school, respectively.

The defendant did not file a written request to charge with respect to intent and failed to object to the court's instructions. He now requests review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).³ The defendant's claim satisfies the first two prongs of Golding because the record is adequate for review and "[a]n improper instruction on an element of an offense ... is of constitutional dimension." (Internal quotation marks omitted.) State v. Austin, 244 Conn. 226, 235, 710 A.2d 732 (1998). "Due process requires that the state establish beyond a reasonable doubt every essential fact necessary to establish the crime charged ... including intent where intent is one of those elements." (Internal quotation marks omitted.) Id.

The defendant's claim also satisfies the third prong of Golding because it is clear from the record that a constitutional violation exists. The crimes at issue are all specific intent crimes. "In deciding whether a criminal statute requires general or specific intent, our Supreme Court regularly has invoked the following distinction. When the elements of a crime consist of a description of a particular act and a mental element not specific in nature, the only issue is whether the defendant intended to do the proscribed act. If he did so intend, he has the requisite general intent for culpability. When the elements of a crime include a defendant's intent to achieve some result additional to the act, the additional language distinguishes the crime from those of general intent and makes it one requiring a specific intent. ... State v. Bitting, 162 Conn. 1, 5, 291 A.2d 240 (1971)." (Citations omitted; internal quotation marks omitted.) State v. Nixon, 32 Conn.App. 224, 249, 630 A.2d 74 (1993), aff'd, 231 Conn. 545, 651 A.2d 1264 (1995). Possession of narcotics with intent to sell by a person who is not drug-dependent in violation of § 21a-278 (b) and possession of narcotics with intent to sell within 1500 feet of a school in violation of § 21a-278a(b) both require a specific intent to sell. See State v. Denby, 235 Conn. 477, 482, 668 A.2d 682 (1995) (specific intent to sell essential element of § 21a-278a[b]). The clear language of § 21a-267(a) and (c) indicate that those crimes require a specific intent to use drug paraphernalia. General Statutes § 21a-267(a) ("[n]o person shall ... possess with intent to use drug paraphernalia" [emphasis added]); General Statutes § 21a-267(c) (same); see also State v. Brunori, 22 Conn.App. 431, 435, 578 A.2d 139 (under § 21a-267[a], state must prove defendant possessed drug paraphernalia with intent to use it), cert. denied, 216 Conn. 814, 580 A.2d 61 (1990).

The court, however, did not instruct the jury on specific intent. Rather, it instructed the jury that "a person acts intentionally with respect to conduct when his conscious objective is to engage in such conduct." (Emphasis added.) Intent to engage in proscribed conduct is not sufficient.⁴ "[I]t is improper for the trial court to read [the] entire statute [on intent] to a jury when the pleadings or the evidence support a violation of...