State v. Barber

Citation781 A.2d 464
Decision Date07 August 2001
Docket Number18763
CourtAppellate Court of Connecticut
PartiesSTATE OF CONNECTICUT v. ALEXANDER BARBER AC 18763 THE COURT OF APPEALS OF THE STATE OF CONNECTICUT

Counsel: Damon A. R. Kirschbaum, for the appellant (defendant).

John A. East III, assistant state's attorney, with whom, on the brief, were James E. Thomas, state's attorney, and Laura M. Rose, assistant state's attorney, for the appellee (state).

Lavery, C. J., and Foti, Landau, Schaller, Spear, Mihalakos, Pellegrino, Dranginis and Hennessy, Js.

Opinion

Landau, J.

The defendant, Alexander Barber, appeals from the judgment of conviction, rendered after a jury trial, of possession of marijuana in violation of General Statutes § 21a-279 (c),1 possession of marijuana within 1500 feet of a school in violation of General Statutes § 21a-279 (d) 2 and possession of marijuana with intent to sell in violation of General Statutes § 21a-277 (b). 3 The defendant claims that the court improperly (1) failed to rule that the evidence presented at trial was insufficient to support the guilty verdict returned by the jury, (2) admitted into evidence the testimony of two state's witnesses to prove that the defendant possessed marijuana within 1500 feet of a school and (3) sentenced the defendant in a manner that violated the constitutional prohibition against double jeopardy. He also claims that the prosecutor engaged in a pervasive pattern of misconduct that deprived the defendant of a fair trial. We affirm the judgment except as to the defendant's double jeopardy claim. 4

The jury reasonably could have found the following facts. In August, 1997, Hartford police officers obtained search warrants for a three family residence at 273 Main Street in Hartford. The warrants alleged that the defendant's brother, Leroy Barber, and others were selling marijuana at that address. On August 22, 1997, at about 7:30 p.m., the police, acting in two teams, simultaneously executed the warrants, one for the second floor and one for the third floor of the premises. Yvonne Powell, with whom the defendant had a long relationship, owned the premises and lived on the second floor with the couple's disabled son. The defendant had a key and full access to the apartment on the second floor. Leroy Barber lived on the third floor. The building was within 1500 feet of two public schools.

The team executing the warrant for the second floor was led by Detective Giuseppi Uccello. When he reached the door of the second floor apartment, Uccello executed a ''knock and announce'' forced entry. When they received no response, the police battered open the door to the apartment. After the unoccupied living and dining rooms were secured, Uccello walked toward the master bedroom and encountered a pit bull, which held him at bay. 5 Despite that impasse, Uccello had an unobstructed view into the master bedroom where he saw the defendant sitting on a bed within an arm's length of a small metal table on which nineteen quarter-ounce bags of marijuana and a supply of small plastic bags lay. At the time, Powell and the couple's son were in the second bedroom. The police found no drug paraphernalia in the apartment.

At the conclusion of evidence, the jury found the defendant guilty of possession of marijuana, possession of marijuana with intent to sell and possession of marijuana within 1500 feet of a school. The court denied the defendant's motion for a judgment of acquittal and sentenced him to a total effective sentence of three years imprisonment. The defendant appealed.

I.

The defendant first claims that the evidence was insufficient to support the conviction of possession of marijuana and possession of marijuana with intent to sell, and that the court therefore improperly denied his motion for a judgment of acquittal. We disagree.

The following additional facts are relevant to our review of the defendant's claim. At trial, Uccello testified that he never saw the defendant actually handle the marijuana, which seemed to contradict the statement in his arrest report that the defendant was ''filling sandwich bags with marijuana.'' Uccello explained that his testimony did not contradict his report because his statement that the defendant ''was filling sandwich bags with a green plant-like substance'' was the logical inference he had drawn on the basis of his observations and the discovery of the physical evidence, i.e., he saw the defendant sitting before a metal table where the packaged marijuana and a supply of plastic sandwich bags lay. Uccello, who testified as an expert on narcotics, also stated that the absence of drug paraphernalia indicated that the marijuana was intended for sale and not for personal use.

The defendant argues that Uccello's testimony was improbable and unbelievable and, therefore, no credible evidence was presented to permit the jury to infer that the defendant was in possession of the marijuana or that he harbored an intent to sell it.

The standards by which we review claims of insufficient evidence are well settled. ''When reviewing a sufficiency of the evidence claim, our courts apply a twoprong 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.'' (Internal quotation marks omitted.) State v. Perry, 48 Conn. App. 193, 196, 709 A.2d 564, cert. denied, 244 Conn. 931, 711 A.2d 729 (1998).

''It is within the province of the jury to draw reasonable and logical inferences from the facts proven. . . . The jury may draw reasonable inferences based on other inferences drawn from the evidence presented. . . . Our review is a fact based inquiry limited to determining whether the inferences drawn by the jury are so unreasonable as to be unjustifiable. . . . We note that the probative force of the evidence is not diminished because it consists, in whole or in part, of circumstantial evidence rather than direct evidence. . . . It has been repeatedly stated that there is no legal distinction between direct and circumstantial evidence so far as probative force is concerned. . . . It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. . . . [T]he inquiry into whether the record evidence would support a finding of guilt beyond a reasonable doubt does not require a court to ask itself whether it believes that the evidence . . . established guilt beyond a reasonable doubt. . . .

Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. . . . In doing so, we keep in mind that [w]e have not had the jury's opportunity to observe the conduct, demeanor, and attitude of the witnesses and to gauge their credibility.'' (Emphasis in original; internal quotation marks omitted.) State v. Madagoski, 59 Conn. App. 394, 399, 757 A.2d 47 (2000), cert. denied, 255 Conn. 924, 767 A.2d 99 (2001).

A.

We turn first to the defendant's claim that there was insufficient evidence to support his conviction for possession of marijuana pursuant to § 21a-279 (c).

''[T]o prove illegal possession of [marijuana], it is necessary to establish that the defendant knew the character of the substance, knew of its presence and exercised dominion and control over it.'' State v. Alfonso, 195 Conn. 624, 633, 490 A.2d 75 (1985). ''Where, as here, the [marijuana] was not found on the defendant's person, the state must proceed on the theory of constructive possession, that is, possession without direct physical contact.'' State v. Elijah, 42 Conn. App. 687, 698, 682 A.2d 506, cert. denied, 239 Conn. 936, 684 A.2d 709 (1996); State v. Brunori, 22 Conn. App. 431, 436, 578 A.2d 139, cert. denied, 216 Conn. 814, 580 A.2d 61 (1990); see also State v. Santiago, 17 Conn. App. 273, 278, 552 A.2d 438 (1989); State v. Melillo, 17 Conn. App. 114, 117±n18, 550 A.2d 319 (1988). One factor that may be considered in determining whether a defendant had constructive possession of marijuana is whether he is in possession of the premises where it is found. See State v. Alfonso, supra, 633. ''Where the defendant is not in exclusive possession of the premises where the [marijuana is] found, it may not be inferred that [the defendant] knew of the presence of the [marijuana] and had control of [it], unless there are other incriminating statements or circumstances tending to buttress such an inference.'' (Internal quotation marks omitted.) Id.; see also State v. Berger, 249 Conn. 218, 225, 733 A.2d 156 (1999).

In the present case, there was ample circumstantial evidence to support a finding that the defendant had constructive possession of the marijuana, i.e., that he knew of the presence and nature of the contraband and had control over it. When Uccello first saw the defendant, the defendant was alone in the master bedroom sitting on the bed only an arm's distance from a table on which lay a supply of plastic sandwich bags and nineteen bags filled with equal amounts of a plantlike substance. His protective dog was in the room with him. Tests later identified the substance as marijuana. The other residents of the apartment were in another room at the time.

It was eminently reasonable for the jury to infer that the defendant knew that the marijuana was in the apartment and that he controlled it. The evidence and the reasonably drawn inferences were sufficient to establish the necessary possessory connection between the defendant and the marijuana. See id., 223±n26. Although the parties presented two different scenarios, the jury chose to accept the state's version and to reject the defendant's. In such cases, we...

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