State v. Berger

• Citation: 249 Conn. 218,733 A.2d 156
• Court: Supreme Court of Connecticut
• Decision Date: 01 June 1999
• Parties: (Conn. 1999) STATE OF CONNECTICUT v. RUBEN BERGER 15825

733 A.2d 156 (Conn. 1999)

STATE OF CONNECTICUT v. RUBEN BERGER

15825

Connecticut Supreme Court

Argued February 17

June 01, 1999

Callahan, C. J., and Borden, Berdon, Katz and Palmer, Js.

OPINION

The defendant, Ruben Berger, appeals from a judgment of conviction, rendered after a jury trial, of possession of a narcotic substance with the intent to sell by a person who is not drug-dependent in violation of General Statutes §§ 21a-278 (a), conspiracy to possess a narcotic substance with intent to sell by a person who is not drug-dependent in violation of General Statutes §§§§ 53a-48 (a) and 21a-278 (a), and possession of drug paraphernalia in violation of General Statutes §§ 21a-267 (a). ¹ On appeal, ² the defendant claims that the trial court improperly: (1) determined that the evidence was sufficient to support the judgment of conviction for possession of narcotics with intent to sell and for conspiracy to possess narcotics with intent to sell; (2) denied his motion to strike certain business records prepared by Northeast Utilities Company (Northeast); (3) denied his request for a jury instruction regarding third party culpability; and (4) determined that the evidence was sufficient to support a finding that the defendant was in exclusive possession of the apartment from which the drugs were seized. We affirm the trial court's judgment of conviction.

The jury reasonably could have found the following facts. In August, 1996, detectives from the vice and intelligence unit of the Waterbury police department instituted an investigation of the defendant's brother, Richard Berger. The detectives suspected that Richard Berger had been conducting illegal narcotics activities from an apartment located at 35-16 Mountain Village Road, Waterbury (apartment).

The apartment was leased to the defendant's girlfriend, Tayna Coles, and the electric utilities for the apartment were listed in the defendant's name. The defendant, Coles and the couple's three children, however, lived elsewhere in Waterbury.

On August 15, 1996, the detectives met with a confidential informant and requested that the informant attempt to purchase illegal narcotics from Richard Berger. The informant called Richard Berger and arranged to meet him later that day to purchase cocaine. Thereafter, the detectives established surveillance of the apartment and of the location where the confidential informant had arranged to meet Richard Berger. Shortly before the confidential informant was to meet Richard Berger, the detectives observed the defendant arrive and enter the apartment with a key. The defendant remained in the apartment for approximately five minutes. Upon leaving the apartment, the defendant drove to a parking lot, where he was observed handing an unidentified object to Richard Berger. After receiving the object from the defendant, Richard Berger drove to the prearranged meeting with the confidential informant and sold cocaine to the informant.

On the evening of August 20, 1996, the detectives again placed the apartment under surveillance and observed the defendant enter the apartment with a key. Shortly thereafter, a woman entered the apartment. The detectives continued to watch the apartment for approximately thirty minutes and then terminated their surveillance.

The detectives again arranged for a confidential informant to purchase cocaine from Richard Berger on August 27, 1996. On that day, the detectives conducted surveillance of the apartment, of the location where the arranged sale was to occur, and of Richard Berger himself. While under surveillance, Richard Berger arrived at the apartment and entered with a key. Shortly thereafter, he left the apartment and drove directly to the prearranged meeting with the confidential informant. At that meeting, Richard Berger sold cocaine to the confidential informant. Approximately thirty minutes later, the defendant arrived at the apartment and entered with a key. The defendant remained in the apartment for approximately twenty minutes. The detectives concluded their surveillance shortly after the defendant left the apartment.

Thereafter, the detectives obtained a warrant to search the apartment for illicit drugs. On August 28, 1996, officers of the Waterbury police department executed a search of the apartment. Upon entering, the officers found the defendant, Richard Berger and a young male sitting at the kitchen table. There was virtually no furniture or food in the apartment. The defendant told the police officers that none of the three lived in the apartment, but that the clothing hanging in the bedroom closet belonged to him. The officers then searched the apartment.

During the search, the officers discovered and seized crack cocaine and various items of drug paraphernalia. The majority of the cocaine was found in and on top of a heavy locked safe located in an open storage closet. The officers also found three packets of cocaine in the pocket of a black leather jacket that was hanging in the bedroom closet. The police also found a framed, poster-size picture of the defendant in the bedroom. The picture had a $100 bill inserted under the glass in the frame. In addition to the cocaine, officers seized several straight edge razor blades, small plastic baggies and digital scales, all of which are commonly used in connection with the packaging and sale of narcotics. Moreover, cocaine residue subsequently was discovered on the digital scales.

Thereafter, the defendant, Richard Berger and the young male were placed under arrest. While the three men were waiting to be transported to the Waterbury police station, one of the officers overheard the defendant and Richard Berger tell one another that each would "take the weight" for the drugs. Additional relevant facts will be supplied as necessary.

I.

The defendant's first claim is that the trial court's denial of his motion for a judgment of acquittal was improper because there was insufficient evidence to sustain his convictions. Specifically, the defendant contends that: (1) the evidence was insufficient to convict him of possession of narcotics with intent to sell, because it was not capable of supporting a finding that he had possessed the drugs that were seized from the apartment; and (2) the evidence was insufficient to convict him of conspiracy to possess narcotics with intent to sell, because it was not capable of supporting a finding that there had been an agreement between the defendant and his brother, Richard Berger. We disagree with both of the defendant's contentions.

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." (Internal quotation marks omitted.) State v. Sivri, 231 Conn. 115, 126, 646 A.2d 169 (1994); see State v. DeJesus, 236 Conn. 189, 195, 672 A.2d 488 (1996). In evaluating evidence, the trier of fact is not required to accept as dispositive those inferences that are consistent with the defendant's innocence. State v. Sivri, supra, 132-33. The trier may "draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical." (Internal quotation marks omitted.) Id. "As we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt; State v. Ford, 230 Conn. 686, 693, 646 A.2d 147 (1994); State v. Patterson, [229 Conn. 328, 332, 641 A.2d 123 (1994)]; State v. Little, 194 Conn. 665, 671-72, 485 A.2d 913 (1984); 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. State v. Sivri, supra, 134. 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. Id." (Internal quotation marks omitted.) State v. DeJesus, supra, 196.

A.

The defendant's first claim of evidentiary insufficiency is that the evidence was not capable of supporting the Conclusion that he possessed the cocaine seized from the apartment. "In order to prove illegal possession of a narcotic substance, 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 cocaine 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 (1996); see also State v. Brunori, 22 Conn. App. 431, 436, 578 A.2d 139, cert. denied, 216 Conn. 814, 580 A.2d 61 (1990); State v. Santiago, 17 Conn. App. 273, 278, 552 A.2d 438 (1989); State v. Melillo, 17 Conn. App. 114, 117-18, 550 A.2d 319 (1988). 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. See State v. Alfonso, supra, 633. "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." (Internal quotation marks omitted.) Id.

In the present case, there was ample evidence to support a finding that the defendant shared possession of the apartment with Richard Berger. The electric...