State v. Diaz

• Citation: 109 Conn.App. 519,952 A.2d 124
• Decision Date: 05 August 2008
• Docket Number: No. 28177.,28177.
• Court: Appellate Court of Connecticut
• Parties: STATE of Connecticut v. Daniel DIAZ.

952 A.2d 124

109 Conn.App. 519

STATE of Connecticut v. Daniel DIAZ.

No. 28177.

Appellate Court of Connecticut.

Argued March 18, 2008.

Decided August 5, 2008.

Mark Diamond, special public defender, for the appellant (defendant).

Nancy L. Chupak, assistant state's attorney, with whom, on the brief, were

Scott J. Murphy, state's attorney, and Mary Rose Palmese, supervisory assistant state's attorney, for the appellee (state).

DiPENTIMA, HARPER and BERDON, Js.

HARPER, J.

The defendant, Daniel Diaz, appeals from the judgments of conviction, rendered after a jury trial, of possession of narcotics with the intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278(b), two counts of possession of narcotics in violation of General Statutes § 21a-279(a) and criminal possession of a firearm in violation of General Statutes § 53a-217(a)(1).¹ The defendant claims that (1) the evidence did not support his conviction with regard to two of the charges, (2) the court and the prosecutor violated his constitutional rights by commenting on matters that were not in evidence, (3) the court improperly excluded certain evidence and (4) the court improperly denied his motion to suppress. We affirm the judgments of the trial court.

The jury reasonably could have found the following facts. In early 2001, the defendant was under investigation by the New Britain police department for illegal drug related activities. On March 13, 2001, New Britain police officers arrested Kevin Lockery, who was known by the police as a drug user, for a narcotics offense. In an effort to gain lenient treatment, Lockery identified the defendant as a drug dealer and provided the police with information about the defendant. At the direction of the police, Lockery called the defendant on a cellular telephone and arranged to purchase five bags of heroin at a specific location in New Britain. Shortly after the defendant received Lockery's call, the defendant left his residence and drove to that location. Lockery did not meet the defendant as arranged, and, after several minutes, the defendant began to drive away.

Police officers stopped the defendant's automobile. A search of the defendant yielded twenty-five packets of heroin, $1025 and a cellular telephone that displayed among received calls the telephone number from which Lockery had called the defendant to arrange the drug purchase. A subsequent search of the defendant's residence, pursuant to a warrant, yielded 168 packets of heroin, sixteen grams of marijuana, a twelve gauge shotgun, several shotgun shells and numerous other items typically used in the sale and distribution of illegal drugs. Additional facts will be set forth as necessary.

I

The defendant's first claim is that the evidence did not support his conviction of possession of the narcotics seized from his residence and of criminal possession of a firearm.² We disagree.

"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." (Internal quotation marks omitted.) State v. Silva, 285 Conn. 447, 454, 939 A.2d 581 (2008).

We now turn to the specific counts at issue, which related to the heroin and firearm seized from the defendant's residence. General Statutes § 21a-279(a) provides in relevant part that "[a]ny person who possesses or has under his control any quantity of any narcotic substance" is subject to the criminal penalties set forth therein. In a substitute long form information, the state alleged in count four that "on or about March 14, 2001, in the area of 207 Beaver Street in the [c]ity of New Britain, the [defendant] did possess narcotics, to wit: heroin...." At trial, the defendant admitted that he had access to the residence but denied that he possessed or had under his control the heroin or firearm seized by the police.

"Pursuant to our rules of law, § 21a-279(a) requires that the state ... 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.... Where ... the contraband is not found on the defendant's person, the state must proceed on the alternate theory of constructive possession, that is, possession without direct physical contact.... Where the defendant is not in exclusive possession of the [place] 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.... Further, to convict the defendant of this crime, the state had to prove that the defendant, and not some other person, possessed a substance that was of narcotic character with knowledge both of its narcotic character and the fact that he possessed it." (Citation omitted; emphasis in original; internal quotation marks omitted.)

State v. Gooden, 89 Conn.App. 307, 315-16, 873 A.2d 243, cert. denied, 275 Conn. 918, 919, 883 A.2d 1249 (2005).

General Statutes § 53a-217(a) provides in relevant part: "A person is guilty of criminal possession of a firearm ... when such person possesses a firearm ... and (1) has been convicted of a felony...." In count five of the state's substitute long form information, the state alleged that "on or about March 14, 2001, in the area of 207 Beaver Street in the [c]ity of New Britain, the [defendant] did possess a firearm, to wit: one Mossberg model # 590 [twelve] gauge [shotgun], and said [defendant] was previously convicted of a felony...."

"Possess," as defined in General Statutes § 53a-3(2), "means to have physical possession or otherwise to exercise dominion or control over tangible property...." "The 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 our criminal statutes involving possession, this control must be exercised intentionally and with knowledge of the character of the controlled object." State v. Hill, 201 Conn. 505, 516, 523 A.2d 1252 (1986). To prove that the defendant constructively possessed the firearm, it was the state's burden to prove that he "knowingly [had] the power and the intention at a given time of exercising dominion and control over [the firearm]." (Internal quotation marks omitted.) Id., at 513, 523 A.2d 1252. When, as here, the doctrine of nonexclusive possession also is implicated,³ the state bears the burden of proving that there were "incriminating statements or circumstances"; (internal quotation marks omitted) State v. Williams, 258 Conn. 1, 7, 778 A.2d 186 (2001) (discussing application of nonexclusive possession doctrine in prosecution under § 53a-217[a][1]); other than the discovery of the firearm in the residence he shared with his girlfriend, tending to buttress the inference that he knew of the firearm's presence and had control over it.

The defendant does not claim that the evidence did not demonstrate that the police seized 168 packets of heroin and a firearm upon executing a search warrant at his residence on March 14, 2001. The essential element that is common to both counts at issue, and which the defendant challenges on appeal, relates to possession. Specifically, the defendant claims that the evidence was insufficient to prove that he constructively possessed either the heroin or the firearm found at his residence because (1) he was not present in the residence at the time those items were seized, (2) he was not in exclusive possession of the residence, and (3) he presented testimony from Michele Gross, his girlfriend with whom he shared the residence at the time of the seizure, that the heroin and firearm belonged to Gross' friend, Renee Johnson, who was at the residence at the time those items were seized by the police.

The defendant's arguments are unavailing. The jury had before it ample evidence from which it could infer that the defendant was a drug seller and that his apartment was integral to that criminal enterprise. The state presented evidence that prior to the defendant's arrest, a confidential informant had provided information...