State v. Stovall

142 Conn.App. 562

64 A.3d 819

STATE of Connecticut

v.Thomas STOVALL.

No. 34001.

Appellate Court of Connecticut.

Argued Feb. 4, 2013.

Decided May 14, 2013.

John W. Cerreta, with whom, on the brief, was Michael P. Shea, Hartford, for the appellant (defendant).

James A. Killen, senior assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Richard L. Palombo, Jr., senior assistant state's attorney, for the appellee (state).

BEACH, ROBINSON and BISHOP, Js.

ROBINSON, J.

The defendant, Thomas Stovall, 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 General Statutes § 21a–278 (b) and one count of possession of narcotics with intent to sell within 1500 feet of a public housing project in violation of General Statutes § 21a–278a (b).¹ On appeal, the defendant claims that (1) there was insufficient evidence to support the jury's verdict that he had constructive possession of the crack cocaine found in the hallway closet in a third party's apartment, (2) there was insufficient evidence to support the jury's verdict that he intended to sell within 1500 feet of a public housing project, (3) the trial court improperly instructed the jury with regard to the element of intent to sell within 1500 feet of a public housing project and (4) the admission of the reviewing state analyst's certification on the controlled substance report was a violation of his constitutional right to confrontation. We reverse, in part, and affirm, in part, the judgment of the trial court.

The jury reasonably could have found the following facts. On January 16, 2010, at approximately midnight, a raid team from the Bridgeport police department executed a search warrant for apartment 449 in building four of the Green Homes housing complex (Green Homes), a federally funded housing project. In executing the warrant, the officers knocked on the door and waited for a response. When they did not receive one, they opened the door, which was unlocked, and entered the apartment. Upon entry, the officers detained and secured five people—Librea Patrick, the tenant of the apartment, Latavia Goss, Roderick Williams, Shawndell Gaynard and the defendant. Patrick's two small children were allowed to remain sleeping. All of the adults were searched. The search of the defendant revealed $1125 in mixed denominations. After searching all of the adults, Patrick remained in the apartment and the other suspects were transported to the police station. The police then began to search the apartment.

The search of the apartment revealed a department of social services card and incident report belonging to the defendant in one of the bedrooms, sixteen cellular phones found throughout the apartment, an empty scale box, two razor blades with a residue that was later determined to be cocaine and small ziplock bags in the kitchen. A search of the hallway closet across from the kitchen revealed a shoebox that contained a loaded .38 caliber revolver, a loaded .32 caliber revolver, a Remington bullet box with two live bullets inside, and several letters that referenced “Tom–Tom,” “Thomas” and “Tomster.” The contents of the shoebox were collected as evidence, but the shoebox itself was not. An officer also searched the clothing in the closet. In a heavy, men's winter jacket, he found thirteen orange-tinged plastic ziplock bags, each containing a white, rock-like substance that was later determined to be crack cocaine. The jacket was not collected as evidence.

In a substitute long form information, 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 public housing project and two counts of criminal possession of a firearm. On the basis of the evidence presented at trial, the jury found the defendant guilty on all counts. The court sentenced the defendant to ten years of incarceration on the first count and three years of incarceration on the second count.² This appeal followed.

I

On appeal, the defendant first argues that there was insufficient evidence to convict him of the drug possession charges. He claims that the conviction on both charges must be reversed because the state failed to present evidence to support an inference that he both knew of the existence of and exercised dominion or control over the crack cocaine that was found in the pocket of a men's winter coat that was located in Patrick's hall closet. The defendant additionally maintains that the conviction of possession of narcotics with intent to sell within 1500 feet of a public housing project cannot be sustained because the state failed to present evidence to support an inference that he actually intended to sell at Green Homes. We disagree with both contentions.

We begin with the standard of review and relevant legal principles. “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.... In evaluating evidence, the trier of fact is not required to accept as dispositive those inferences that are consistent with the defendant's innocence.... The trier may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.... This does not require that each subordinate conclusion established by or inferred from the evidence, or even from other inferences, be proved beyond a reasonable doubt ... because this court has held that a jury's factual inferences that support a guilty verdict need only be reasonable....

“[A]s 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 trier, would have resulted in an acquittal.... 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.... Furthermore, [i]n [our] process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct.... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.” (Citations omitted; internal quotation marks omitted.) State v. Padua, 273 Conn. 138, 146–47, 869 A.2d 192 (2005). “While the jury may not speculate to reach a conclusion of guilt, [it] may draw reasonable, logical inferences from the facts proven to reach a verdict.... Deference is given to the trier of fact who had the opportunity to observe the conduct, demeanor and attitude of the trial witnesses and to assess their credibility.” (Internal quotation marks omitted.) State v. Riser, 70 Conn.App. 543, 551, 800 A.2d 564 (2002).

“[An] appellate court's first task, in responding to a claim of evidentiary insufficiency, is to apply the traditional scope of review to the evidence. That requires that ... we view all of the evidence, and the reasonable inferences drawable therefrom, in favor of the [trier's] verdict.... We note that a claim of insufficiency of the evidence must be tested by reviewing no less than, and no more than, the evidence introduced at trial.” (Citations omitted; internal quotation marks omitted.) State v. Butler, 296 Conn. 62, 77, 993 A.2d 970 (2010).

A

We first address the defendant's claim that the state did not prove beyond a reasonable doubt that he had constructive possession of the drugs found in the jacket. He contends that because the jury reasonably could not have concluded that the jacket where the crack cocaine was found belonged to him, it also could not have inferred that he knew about and exerciseddominion or control over the drugs. We are not persuaded.

In order to establish that the defendant was guilty of the possessory narcotics offenses with which he was charged, the state was required to prove beyond a reasonable doubt that he had actual or constructive possession of the narcotics. State v. Hernandez, 254 Conn. 659, 669, 759 A.2d 79 (2000). “To prove either actual or constructive possession of a narcotic substance, the state must establish beyond a reasonable doubt that the accused knew of the character of the drug and its presence, and exercised dominion and control over it.” Internal quotation marks omitted.) State v. Butler, supra, 296 Conn. at 78, 993 A.2d 970. “Where ... the [controlled substances were] not found on the defendant's person, the state must proceed on the theory of constructive possession, that is, possession without direct physical contact.” (Internal quotation marks omitted.) State v. Martin, 285 Conn. 135, 149, 939 A.2d 524, cert. denied, 555 U.S. 859, 129 S.Ct. 133, 172 L.Ed.2d 101 (2008).

“Under the doctrine of nonexclusive possession, [w]here 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.” (Internal quotation marks omitted.) State v. Butler, supra, 296 Conn. at 78, 993 A.2d 970. “While mere presence is not enough to support an inference of dominion or control, where there are other pieces of evidence tying the...