State v. Denby

• Decision Date: 05 December 1995
• Docket Number: No. 15155,15155
• Citation: 235 Conn. 477,668 A.2d 682
• Court: Connecticut Supreme Court
• Parties: , 106 Ed. Law Rep. 197 STATE of Connecticut v. John DENBY.

Page 682

668 A.2d 682

235 Conn. 477, 106 Ed. Law Rep. 197

STATE of Connecticut v. John DENBY.

No. 15155.

Supreme Court of Connecticut.

Argued Sept. 21, 1995.

Decided December 5, 1995.

Shelley A. White, Special Public Defender, with whom, on the brief, was Donald D. Dakers, Special Public Defender, for appellant (defendant).

Jack W. Fischer, Assistant State's Attorney, with whom, on the brief, were Michael Dearington, State's Attorney, and Mary Reidy, Assistant State's Attorney, for appellee (state).

Before PETERS, C.J., and BORDEN, BERDON, NORCOTT and KATZ, JJ.

BERDON, Associate Justice.

The issues in this appeal are whether: (1) when a defendant is charged with possession of narcotics with intent to sell within 1000 feet of a school in violation of General Statutes (Rev. to 1991) § 21a-278a(b), ¹ it is an essential element of the crime that the defendant has the specific intent to sell at a location that is within 1000 feet of a school; and (2) the trial court properly instructed the jury regarding the elements of § 21a-278a(b).

The defendant, John Denby, was charged with possession of cocaine with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278(b), and possession of cocaine with intent to sell within 1000 feet of a school in violation of §§ 21a-278 and 21a-278a(b). A jury found the defendant guilty as charged and the trial court sentenced him to an effective term of imprisonment of nineteen years.

The defendant appealed to the Appellate Court, claiming, inter alia, that the trial court improperly failed to instruct the jury that a conviction pursuant to § 21a-278a(b) required the state to prove that the defendant specifically intended to sell narcotics at a location within 1000 feet of school property. The Appellate Court affirmed the judgment of conviction. State v. Denby, 35 Conn.App. 609, 646 A.2d 909 (1994). We granted the defendant's petition for certification to appeal, ² and affirm the judgment of the Appellate Court based upon different reasoning.

As stated by the Appellate Court, the jury reasonably could have found the following facts. "On May 17, 1992, New Haven police officers Andrew Muro and Peter Carusone were working in the Newhallville section of New Haven. Muro received information from an informant that the defendant was selling drugs at 51 Lilac Street, which was approximately 820 feet from the Lincoln Bassett School. He and Carusone, both of whom knew the defendant, drove by the address and saw the defendant on the front porch. They set up a surveillance of the defendant's activities. Muro watched the front porch from a nearby alley. Carusone remained at a police substation parking lot, ready to assist Muro upon apprehension of the defendant.

"Muro observed a female walk up to the porch of the building and heard her say she 'wanted one.' The defendant reached into his right pants pocket, pulled out a clear plastic bag, removed an item from it, and handed it to the female. The female then gave the defendant money. A short time later, Muro saw the defendant carry out a second transaction with another individual [which was] similar to the previous transaction.

"After informing Carusone of his observations, the officers returned to the premises under surveillance where Muro encountered the defendant in the hallway and arrested him. In his right pocket, the defendant had a clear plastic bag containing packets of white powder that field-tested positive for cocaine." Id., 35 Conn.App. at 612, 646 A.2d 909.

I

The Appellate Court declined to review the defendant's claim that the trial court had failed to instruct the jury properly that the state must prove that the defendant had a specific intent to sell the narcotic at a location within 1000 feet of a school in violation of § 21a-278a(b). The defendant conceded that he had not raised the issue before the trial court, ³ but sought to prevail under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), ⁴ claiming that his federal and state due process rights had been violated because the specific intent under § 21a-278a(b) was an element of the crime. The Appellate Court held that the prohibition against selling narcotics within the school zone was merely a penalty enhancement and that the state "was not required to prove that the defendant specifically intended to sell within the 1000 foot zone because, by the clear language of the statute, such an intent is not an element of the crime." State v. Denby, supra, 35 Conn.App. at 616, 646 A.2d 909. The state concedes before this court that the intent to sell within 1000 feet of a school is an element of the crime. We agree with the state and the defendant, and disagree with the Appellate Court.

Our interpretation of § 21a-278a(b) is "guided by well established principles of statutory construction. Statutory construction is a question of law and therefore our review is plenary.... Ordinarily, if the language of a statute is plain and unambiguous, we need look no further than the words themselves because we assume that the language expresses the legislature's intent." (Citations omitted; internal quotation marks omitted.) State v. Spears, 234 Conn. 78, 86, 662 A.2d 80 (1995), cert. denied, --- U.S. ----, 116 S.Ct. 565, 133 L.Ed.2d 490 (1995). As a threshold matter, therefore, we consider whether § 21a-278a(b) is plain and unambiguous on its face.

Upon review, we find the plain meaning of § 21a-278a(b) to be clear. The first sentence provides that if any person who is not drug-dependent violates § 21a-277 or § 21a-278 in one of the ways set forth therein, and does so within 1000 feet of a school, that person will receive an additional three year term of imprisonment. The second sentence of § 21a-278a(b) places an additional limitation on the location requirement: "To constitute a violation of this subsection, an act of transporting or possessing a controlled substance shall be with intent to sell or dispense in or on, or within one thousand feet of, the real property comprising a public or private elementary or secondary school." This sentence further defines two of the ways previously described--that is, "transporting or possessing a controlled substance"--by adding that they "shall be with intent to sell or dispense in or on, or within" the 1000 foot zone. Therefore, the plain language of § 21a-278a(b) requires as an element of the offense an intent to sell or dispense the narcotics at a location that is within 1000 feet of a school.

The state is not, however, required to prove that the defendant knew that this location was within the zone. ⁵ Ordinarily, the mental state required by a statute is expressly designated: "When one and only one of such terms appears in a statute defining an offense, it is presumed to apply to every element of the offense unless an intent to limit its application clearly appears." General Statutes § 53a-5. Section 21a-278a(b) specifically requires a mental state of "intent," which must be applied to every element of that statute. The mental state of knowledge that the location is within the 1000 foot zone is not set forth in § 21a-278a(b). An "intent" element is not synonymous with a "knowledge" element, each of which is specifically defined in the penal code. ⁶ The absence of any statutory requirement that the defendant knowingly sell within the prohibited school zone demonstrates that the legislature did not intend to make knowledge an element of the crime. If the legislature had wanted to make knowledge as to location of a school an element of the offense, it would have done so by specifically stating that the defendant possessed the narcotics with the intent to sell or dispense at a location that the defendant knew was in, or on, or within 1000 feet of a school. See State v. Nixon, 231 Conn. 545, 563, 651 A.2d 1264 (1995).

Thus the plain language of § 21a-278a(b) dictates only one construction. While "knowledge" on the part of the defendant as to location is not an element of § 21a-278a(b), the state is required to prove that the defendant intended to sell or dispense those drugs in his or her possession at a specific location, which location happens to be within 1000 feet of an elementary or secondary school.

II

We turn now to the question of whether the trial court properly instructed the jury regarding the elements of § 21a-278a(b). The defendant claims that the trial court failed to instruct the jury that the state must prove that possession with intent to sell or dispense must be within 1000 feet of a school. Although, as we previously indicated, the claim was not properly preserved at trial, the defendant further contends and the state concedes that because it concerns an element of the crime it is nonetheless reviewable under Golding. ⁷ We agree that the jury instruction is subject to Golding review because the defendant raises a constitutional claim involving a fundamental right, and the record is adequate for review.

"It is ... constitutionally axiomatic that the jury be instructed on the essential elements of a crime charged." State v. Williamson, 206 Conn. 685, 708, 539 A.2d 561 (1988). "The due process clause of the fourteenth amendment protects an accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)...." (Citations omitted.) State v. Gabriel, 192 Conn. 405, 413-14, 473 A.2d 300 (1984). Consequently, the failure to instruct a jury on an element of a crime deprives a defendant of the right " 'to have the jury told what crimes he is actually being tried for and what the essential elements of those crimes are.' " Id., at 414, 473 A.2d 300.

We turn, therefore, to the third prong of Golding. The defendant argues that the trial court instructed the jury that a violation of § 21a-278a(b) was established once the state...