State Of Conn. v. Billie.

• Decision Date: 14 September 2010
• Docket Number: No. 30570.,30570.
• Citation: 123 Conn.App. 690,2 A.3d 1034
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Bernard Earl BILLIE.

123 Conn.App. 690

2 A.3d 1034

STATE of Connecticut

v.Bernard Earl BILLIE.

No. 30570.

Appellate Court of Connecticut.

Argued May 28, 2009.

Decided Sept. 14, 2010.

COPYRIGHT MATERIAL OMITTED.

James B. Streeto, assistant public defender, for the appellant (defendant).

Melissa L. Streeto, assistant state's attorney, with whom, on the brief, were David I. Cohen, state's attorney, and Dina Urso, assistant state's attorney, for the appellee (state).

BISHOP, ROBINSON and ALVORD, Js.

ROBINSON, J.

The defendant, Bernard Earl Billie, appeals from the judgment of conviction, rendered after a jury trial, of possession of narcotics with intent to sell in violation of General Statutes § 21a-277(a), possession of narcotics in violation of General Statutes § 21a-279(a) and possession of marijuana in violation of General Statutes § 21a-279(c). On appeal, the defendant claims that (1) the evidence adduced at trial was insufficient to support his conviction of possession of narcotics with intent to sell and (2) certain portions of the trial court's jury instruction on reasonable doubt were constitutionally infirm. ¹ We reverse in part and affirm in part the judgment of the trial court.

The jury reasonably could have found the following facts. On November 9, 2006, at approximately 5 p.m., an anonymous informant notified the Stamford police department of suspected criminal activity in an area of Stamford known for drug trafficking. The informant stated that he had witnessed a “black male” placing narcotics underneath the rear porch of a certain house but did not provide any further information that could be used to identify the individual observed.

In response to this information, Richard Gasparino, George Moran and Adrian Novia, officers with the Stamford police department, were dispatched to the residence to investigate the complaint. ² The officers proceeded to the rear porch area identified by the informant, where they discovered a clear plastic sandwich bag hidden underneath. The bag contained twenty-two smaller, individually wrapped packages of crack cocaine. Moran removed all but one of the smaller packages and replaced the sandwich bag in the hidden location.

After verifying that narcotics were located on the property, the officers set up surveillance. The rear porch area, which was surrounded on all sides by fencing, was accessible only by way of a driveway that extended from the front to the rear of the property. The officers, therefore, determined that a person would have to use the driveway to retrieve the narcotics. Gasparino watched the entrance of the driveway from a position in front of the property, while Moran and Novia took a position in the basement of the house. ³ The basement, located underneath the rear porch, allowed the officers to observe simultaneously the narcotics and the rear of the property.

At approximately 9:35 p.m., Gasparino noticed a black male, later identified as the defendant, enter the driveway at the front of the property, and thereafter Gasparino notified Novia and Moran. Novia watched as the defendant walked from the driveway to the location of the narcotics. As the defendant removed the sandwich bag from underneath the porch, Novia and Moran emerged from the basement and identified themselves as police officers. The defendant dropped the sandwich bag, which then contained only the single package of crack cocaine, along with another bag containing marijuana.

The officers arrested the defendant in connection with the possession of twenty-two packages of crack cocaine and the marijuana. During the arrest, the defendant admitted to possessing the marijuana but made no statement regarding the crack cocaine. The officers searched the defendant but found no other contraband or evidence. Following the arrest, Novia conducted a records search and determined that the defendant previously had lived at that property in 2002. At the time of his arrest, however, the defendant was living at another location in Stamford.

The defendant was subsequently charged with possession of narcotics with intent to sell in violation of § 21a-277(a), ⁴ possession of narcotics in violation of § 21a-279(a) ⁵ and possession of marijuana in violation of § 21a-279(c). A jury trial was held from May 6 to 8, 2008. At oral argument, the defendant moved for a judgment of acquittal on May 7, 2008, which was denied by the court. On May 8, 2008, the jury returned a verdict of guilty on all counts, and the defendant was sentenced on July 15, 2008. ⁶ This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the evidence adduced at trial was insufficient to support his conviction of possession of narcotics with intent to sell. ⁷ Specifically, the defendant claims that the state did not produce sufficient evidence to prove beyond a reasonable doubt that he (1) possessed twenty-two packages of crack cocaine and (2) had the intent to sell narcotics. We agree.

We begin by setting forth the appropriate standard of review. “Appellate analysis of [a sufficiency of the evidence claim] requires us to undertake a well defined, twofold task. We first review the evidence presented at the trial, construing it in the light most favorable to sustaining the jury's verdict. We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt.” State v. Sinclair, 197 Conn. 574, 576, 500 A.2d 539 (1985); see also, e.g., State v. Butler, 296 Conn. 62, 76, 993 A.2d 970 (2010). “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.” State v. Sivri, 231 Conn. 115, 134, 646 A.2d 169 (1994).

“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.” (Citation omitted.) State v. Pinnock, 220 Conn. 765, 771, 601 A.2d 521 (1992).

“[I]t is a function of the jury to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.... Because [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 conjecture.... It is axiomatic, therefore, that [a]ny [inference] drawn must be rational and founded upon the evidence.... However, [t]he line between permissible inference and impermissible speculation is not always easy to discern. When we infer, we derive a conclusion from proven facts because such consideration as experience, or history, or science have demonstrated that there is a likely correlation between those facts and the conclusion. If that correlation is sufficiently compelling, the inference is reasonable. But if 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. When that point is reached is, frankly, a matter of judgment.” (Citations omitted; internal quotation marks omitted.) State v. Copas, 252 Conn. 318, 338-39, 746 A.2d 761 (2000).

A

We first consider the defendant's claim that the state presented insufficient evidence to establish beyond a reasonable doubt that he possessed twenty-two packages of crack cocaine.

In order to prove that a defendant is guilty of possession of narcotics with intent to sell under § 21a-277(a), the state must prove beyond a reasonable doubt that the defendant had either actual or constructive possession of a narcotic substance. State v. Williams, 110 Conn.App. 778, 785, 956 A.2d 1176, cert. denied, 289 Conn. 957, 961 A.2d 424 (2008). “Actual possession requires the defendant to have had direct physical contact with the narcotics.” (Internal quotation marks omitted.) State v. Gainey, 116 Conn.App. 710, 721, 977 A.2d 257 (2009). Constructive possession, on the other hand, is “possession without direct physical contact.” (Internal quotation marks omitted.) State v. Berger, 249 Conn. 218, 225, 733 A.2d 156 (1999). “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.” State v. Cruz, 28 Conn.App. 575, 579, 611 A.2d 457 (1992); see also State v. Butler, supra, 296 Conn. at 78, 993 A.2d 970.

“Where ... the [narcotic substance] was not found on the defendant's person, the state must proceed on the theory of constructive possession.... 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.” (Citations omitted; internal quotation marks omitted.) State...