State v. Avila

• Decision Date: 02 July 1974
• Citation: 166 Conn. 569,353 A.2d 776
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Jesus AVILA.

Page 776

353 A.2d 776

166 Conn. 569

STATE of Connecticut v. Jesus AVILA.

Supreme Court of Connecticut.

July 2, 1974.

Richard T. Meehan, Bridgeport, for appellant (defendant).

Donald A. Browne, State's Atty. for appellee (state).

Before HOUSE, C.J., and SHAPIRO, LOISELLE, MacDONALD and BOGDANSKI, JJ.

LOISELLE, Associate Justice.

The defendant was tried and convicted by a jury on an information charging him with the possession of heroin with intent to sell or dispense the drug in violation of Public Acts 1969, No. 753, § 18(a). (General Statutes § 19-480(a).) The defendant has appealed, claiming that the court erred in admitting and in refusing to strike certain testimony and evidence, in erroneously charging the jury, in denying the defendant's motion for a directed verdict, and in denying the defendant's motion to set the verdict aside.

The defendant's assignment of errors regarding the failure of the court to charge as requested are tested by the claims of proof as they appear in the finding. Practice Book §§ 609, 635; State v. Edwards, 163 Conn. 527, 528, 316 A.2d 387; Southington v. Francis, 159 Conn. 64, 68, 266 A.2d 387.

The state claims to have proven the following: Three police officers, Alerise Best, Earl Mellow and Charles D. Smith, were assigned to check the Bridgeport railroad station at about 12:20 a.m. on September 29, 1970, for Luis Perez and a companion. A train from New York arrived at the railroad station at about 12:30 a.m. and the officers saw Luis Perez and the defendant walking down the stairs with other passengers. When Smith and Best first saw the defendant, he was carrying a paper bag. Smith, Mellow and Best started to pursue Perez as he began running through a tunnel toward the street. At this time, Mellow also noticed that the defendant was carrying a brown bag. Best was about halfway through the tunnel when he turned around and headed back in the direction of the defendant. At that time the defendant was about one-quarter of the way through the tunnel and still had the bag. Best followed the defendant as he walked out toward a parking lot. The defendant walked down the stairs leading from the railroad station and, as he turned from the stairs toward the parking lot, tossed the bag over a fence. Best did not say anything to the defendant until they reached the defendant's vehicle in the parking lot. Best then asked the defendant about the location of the brown bag he had been carrying and the defendant disclaimed any knowledge of it. The defendant accompanied Best back into the railroad station tunnel. Within two or three minutes the other two officers returned in their unmarked police car with Perez. Smith got out of the car and stood with the defendant until Best retrieved the bag from behind the fence. In the bag was a box which contained an apple core, a loaded .38 calibre pistol and a small package wrapped in tinfoil.

The package found in the bag contained a white powder, which subsequent chemical analysis revealed to be 112 grams of 85 percent pure heroin. Ordinarily, glassine envelopes sold on the streets contain about one hundred milligrams of 3 to 4 percent pure heroin. One hundred twelve grams of 85 percent heroin could be used to produce, 22,400 individual glassine envelopes, each containing 100 milligrams of powder of between 3 and 4 percent pure heroin, which could be sold in the Bridgeport area for $6 each.

The defendant claimed to have proven the following: On September 29, 1970, he went to meet a friend in New York. After seeing a show and going to his friend's home, he came back to Bridgeport by train. Luis Perez, whom he knew, disembarked from the train when the defendant did, upon its arrival at Bridgeport. The defendant was a few steps behind Perez, when the latter started running, chased by to men. When the defendant reached his vehicle in the parking lot, Officer Best arrived and instructed him to return to the railroad station. The defendant was brought to the tunnel. The defendant watched Best, who appeared to be looking for something, as he jumped over a fence and returned with a bag. Before he returned to the tunnel and the police car, the defendant had never seen either the bag or the box within it. He had never seen the gun before. He had never seen heroin before and did not know what it was. The preceding facts, although not a full recitation of those offered, are sufficient for a discussion of the errors claimed by the defendant.

The defendant claims that four requests to charge were refused by the court. The first request referred to the intent required to find him guilty of the crime charged. The defendant claims in his brief that the court's charge to the jury failed to indicate 'that intent, as a separate, necessary element of the offense of possession with intent to sell, although proven by inference, must be proven beyond a reasonable doubt.' The defendant further argues that '(a)lthough in other parts of its instructions the court applied the phrase 'proof beyond a reasonable doubt' to the offense in the whole, it failed to adequately inform the jury that a reasonable doubt solely as to the element of intent could militate against a guilty verdict as to the charge of possession with intent to sell.' In its general statement to the jury, the court instructed them that 'the State must have proven every essential element of the crime charged beyond a reasonable doubt.' Later in the charge when discussing the elements of possession with intent to sell, the court stated: 'I have told you that the State must prove the essential elements of the crime charged beyond a reasonable doubt before the Jury can return a verdict of guilty.' Thereafter the court commented on the element of intent and further stated: '(A)ny intent must be determined by you from the evidence heard by you during the course of the trial. Intent is generally proven by circumstantial evidence. In some cases you may have direct evidence. In some cases you may have circumstantial evidence. In this case I will charge you that we heard no direct evidence. So, if you're going to find this man guilty, it must be proven to you beyond a reasonable doubt that the intent was proven by circumstantial evidence.' It is difficult to see how the court could have been more specific as to this claim of error. The court did not err in refusing the defendant's request to charge on this point.

The next two requests to charge, the omission of which was claimed as error, referred to instructions on the meaning of unlawful possession of narcotics. The defendant claims that the jury were not properly instructed that, to be found guilty, the defendant must have exercised dominion and control over the heroin, had knowledge of its presence, and had knowledge of its narcotic character. State v. Harris, 159 Conn. 521, 531, 271 A.2d 74, 79, cert. dismissed, 400 U.S. 1019, 91 S.Ct. 578, 27 L.Ed.2d 630, cited with approval the statement that "'(p)ossess,' as used in criminal statutes, ordinarily signifies an intentional control of a designated thing accompanied by a knowledge of its character.' State v. Reed, 34 N.J. 554, 557, 170 A.2d 419, 420; see note, 91 A.L.R.2d 810.' The court correctly charged the jury on the dominion and control of the narcotics necessary to establish possession. The defendant claims that the instructions were insufficient as to whether he had knowledge that what he was carrying was narcotics and as to knowledge of its character. The court did give specific instructions as to what would constitute possession and did give specific instructions on intent to sell 'a narcotic drug.' Further, the court instructed the jury that '(i)t is essential that . . . the State must prove that on September 29, 1970, the accused did knowingly possess a narcotic drug with intent to sell or possess heroin.' Instructions to the jury need not be in the precise language of the requests. State v. Fine, 159 Conn. 296, 301, 268 A.2d 649; State v. Tropiano, 158 Conn. 412, 420, 262 A.2d 147, cert. denied, 398 U.S. 949, 90 S.Ct. 1866, 26 L.Ed.2d 288. The charge gave the jury a clear understanding of the elements of the crime charged and the proper guidance to determine if those elements were present. State v. Alterio, 154 Conn. 23, 27, 220 A.2d 451, and cases cited.

The assignment of error relating to the failure of the court to charge on the issue of motive is not briefed other than by a mention that it was placed in issue by argument of counsel. Neither the record nor the briefs reveal anything relating to motive. Consequently, this assignment of error is not considered. Stoner v. Stoner, 163 Conn. 345, 348, 307 A.2d 146; Thomas v. Ganezer, 137 Conn. 415, 423, 78 A.2d 539.

The next two assignments of error relate to the admissibility of certain evidence introduced by the state and of certain testimony elicited by the state from two of its witnesses. Abraham Stolman, the chief toxicologist for the state department of health, was allowed to testify that his assistant analyzed the contents of a package sent to his department by the Bridgeport police and found that it contained 112 grams of 85 percent pure heroin. He further testified that the usual concentration of pure heroin in the substance sold to heroin users in glassine bags is between 3 and 4 percent and that the total amount of powder ordinarily found in a single glassine bag is about one-tenth of a gram. He then testified that the package of heroin that he examined could be cut, or intermixed, with other substances to yield an amount which would fill 22,400 glassine bags of the type of heroin ordinarily sold on the street. The defendant objected and took timely exception to this evidence. In his objection the defendant argued that Stoleman had no knowledge of what was to be done with the package, and that the testimony lacked relevancy and would only inflame the minds of the jury. During Stolman's testimony before the jury, the...