State v. Denby

• Decision Date: 16 August 1994
• Docket Number: No. 12216,12216
• Citation: 646 A.2d 909,35 Conn.App. 609
• Parties: , 93 Ed. Law Rep. 1326 STATE of Connecticut v. John DENBY.
• Court: Connecticut Court of Appeals

Page 909

646 A.2d 909

35 Conn.App. 609, 93 Ed. Law Rep. 1326

STATE of Connecticut v. John DENBY.

No. 12216.

Appellate Court of Connecticut.

Argued June 10, 1994.

Decided Aug. 16, 1994.

Donald D. Dakers, Sp. Public Defender, for appellant (defendant).

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

Before LAVERY, LANDAU and HEIMAN, JJ.

LANDAU, Judge.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of possession of cocaine with the intent to sell or dispense by a person who is not drug-dependent in violation of General Statutes § 21a-278(b), ¹ and of possession of cocaine with the intent to sell within 1000 feet of a school in violation of §§ 21a-278 and 21a-278a(b). ² The defendant claims that the trial court improperly (1) instructed the jury as to an element of the crime charged, i.e., the intent to sell narcotics within one thousand feet of a school pursuant to General Statutes (Rev. to 1991) § 21a-278a(b), (2) refused to permit the defendant to elicit witness testimony as to his knowledge of the defendant's drug dependency in violation of the defendant's right to present a defense, (3) instructed the jury regarding the defendant's drug dependency, and (4) permitted the state to impeach the defendant by referring to a prior conviction for conspiracy to sell narcotics. We affirm the judgment of the trial 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 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.

I

The defendant first claims that the trial court improperly failed to instruct the jury on an essential element of the crime charged, thereby depriving him of his federal and state due process rights. ³ He asserts that the trial court failed to instruct the jury that a conviction pursuant to General Statutes (Rev. to 1991) § 21a-278a(b) required the state to prove beyond a reasonable doubt that the defendant specifically intended to sell narcotics in, on or within 1000 feet of the real property of a public or private elementary or secondary school. The defendant contends that a conviction pursuant to § 21a-278a(b) requires a dual intent: (1) the violator must intend to sell the narcotics in his possession; and (2) the violator must intend to sell the narcotics within 1000 feet of a school. This conclusion, the defendant asserts, is supported by the presence of an "irrebuttable presumption" in the statute that any defendant within the 1000 foot zone intended to sell the drugs in his possession. He finds this presumption in the following statutory language: "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." General Statutes (Rev. to 1991) § 21a-278a(b). The defendant concedes that this claim was not properly preserved at trial, but contends that it is nonetheless reviewable under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). ⁴ The defendant's claim is not of constitutional magnitude and, therefore, does not satisfy the second requirement of Golding.

"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 [1072-73], 25 L.Ed.2d 368 (1970)...." (Citations omitted.) State v. Gabriel, 192 Conn. 405, 413, 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. ⁵

Proof that the defendant specifically intended to sell narcotics within 1000 feet of the real property of a school is not an element of the crime charged. In interpreting § 21a-278a(b), we must adhere to " 'well defined principles of statutory interpretation that require us to ascertain and give effect to the apparent intent of the legislature.' ... To determine the intent of the legislature, we first consider whether the statutory language 'yields a plain and unambiguous resolution.' ... 'If the words are clear and unambiguous, "it is assumed that [they] express the intention of the legislature"; Mazur v. Blum, 184 Conn. 116, 118-19, 441 A.2d 65 (1981); and we need inquire no further....' " (Citations omitted.) State v. Mattioli, 210 Conn. 573, 576, 556 A.2d 584 (1989).

The language of General Statute (Rev. to 1991) § 21a-278a(b) is clear that any person who violates General Statutes § 21a-278, and who does so within 1000 feet of a school shall be subject to an additional penalty of three years imprisonment. The provision that the defendant characterizes as an "irrebuttable presumption" serves instead to reinforce the requirement that, for an accused to be subject to the additional penalty, any act of transporting or possessing narcotics must be with the intent to sell the same.

The relationship between General Statutes §§ 21a-278a(b) and 21a-278 is similar to that between General Statutes §§ 53a-59a ⁶ and 53a-59. ⁷ Section 53a-59a provides for an enhanced penalty if a person commits an assault in the first degree pursuant to § 53a-59(a)(2) or § 53a-59(a)(3) and the victim is sixty years old or older. In State v. Campbell, 180 Conn. 557, 564, 429 A.2d 960 (1980), our Supreme Court stated that "[b]y providing for a mandatory one year term of imprisonment, which term may not be suspended or reduced, for the crime of assault in the third degree where the victim is sixty or over the legislature clearly expressed its intent to punish one convicted of that crime more severely than one convicted of assault in the third degree where the victim is under sixty." Similarly, the legislature designed § 21a-278a to punish one convicted of a violation of § 21a-278 more severely when the prohibited activity occurred within a prescribed distance from a school.

To obtain a conviction pursuant to § 21a-278a(b), as with § 53a-59a, the state is required to prove the defendant's intent to commit the substantive underlying crime--in this case, the intent to sell the narcotics in his possession. The fact that the defendant sold narcotics within 1000 feet of a school subjects him to the enhanced penalty. It 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. ⁸

We conclude that the trial court properly instructed the jury as to the intent necessary to support a conviction of the crime charged. Because the defendant's claim is not one of constitutional dimension, State v. Golding, supra, 213 Conn. at 239-40, 567 A.2d 823, we decline to review the defendant's unpreserved claim.

II

The defendant further claims that the trial court improperly refused to allow the defendant to elicit certain testimony relating to his defense of drug dependency. He claims that the court's refusal violated his constitutional right to present a defense.

The following facts are necessary for the resolution of this claim. The defendant and his brother-in-law, Willie Garvin, testified as to the defendant's drug dependence. The defendant sought to elicit further testimony as to his dependency from Lester Moore. During the defendant's direct examination of Moore, the defendant inquired as to whether the witness had ever used drugs with the defendant, and the state objected. ⁹ The trial court, after excusing the jury, heard the parties' arguments, sustained the state's objection, and noted the defendant's exception. The defendant, however, failed to present an offer of proof as to Moore's testimony, and failed to request that the trial court articulate its reason for sustaining the state's objection.

In order to evaluate any claim of error, this court must be furnished with "an adequate record on which to review the rulings of the trial court." State v. James L., 26 Conn.App. 81, 86, 598 A.2d 663 (1991). It is the appellant's burden to create an adequate appellate record to support his claim. Id., at 84, 598 A.2d 663. The defendant has failed to meet this burden. "If he wanted to provide this...