State v. Elijah

• Decision Date: 29 October 1996
• Docket Number: No. 14733,14733
• Citation: 42 Conn.App. 687,682 A.2d 506
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Scott ELIJAH.

Page 506

682 A.2d 506

42 Conn.App. 687

STATE of Connecticut v. Scott ELIJAH.

No. 14733.

Appellate Court of Connecticut.

Argued June 11, 1996.

Decided Aug. 27, 1996.

Certification Denied Oct. 29, 1996.

John R. Williams, Special Public Defender, for appellant (defendant).

Mitchell S. Brody, Assistant State's Attorney, with whom, on the brief, were Michael Dearington, State's Attorney, and John Waddock, Assistant State's Attorney, for appellee (state).

Before FOTI, LAVERY and SPEAR, JJ.

FOTI, Judge.

The defendant appeals from the judgment of conviction rendered, after a jury trial, of possession of cocaine with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278(b), ¹ possession of cocaine in violation of General Statutes § 21a-279(a), ² and conspiracy to sell cocaine in violation of General Statutes §§ 53a-48(a) ³ and 21a-278(b). The defendant claims that the trial court improperly instructed the jury. He also claims that the evidence was insufficient to convict him of any of the charges. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On June 29, 1991, Detective Hilden Wright of the New Haven police department began surveillance of a multifamily house located at 221 1/2 Winthrop Avenue in New Haven. From his vantage point, he had a clear view of the entrance. At some time in the early afternoon, he observed a blue Mercury Lynx with New York license plates parked in front of the building. Thereafter, Wright saw the defendant and another black male, Jefferson Jackson, enter the automobile and drive away. Approximately thirty minutes later the car returned and parked in the same spot in front of the building. The defendant and Jackson exited the car and entered the building. Both were dressed in full-length pants and shirts. One of them was carrying a brown paper bag. After additional surveillance of approximately twenty minutes, Wright left to return to police headquarters. Approximately twenty minutes after leaving, Wright returned with other law enforcement officers of the narcotics unit to execute a search and seizure warrant for apartment five of that building.

The officers knocked on the door to apartment five and one of them yelled, "Police with a search warrant." They could hear the sounds of running footsteps and concluded that evidence was being destroyed. They battered down the door, which had been fortified inside by two-by-fours placed across it. The door opened into the living room, to the left of which was the kitchen, open to view; past the kitchen was a bathroom on the left, a bedroom on the right, and a second bedroom at the end of a short hallway.

As the police entered, they observed both the defendant and Jackson bare-chested and wearing only boxer shorts. The defendant was stopped going out the backdoor, which had a deadbolt. Jackson, who had a surgical mask around his neck, was seized as he ran from the kitchen to the back of the apartment. The defendant supplied the police with the keys to the blue Mercury parked outside, and said that he lived elsewhere giving them a false New Haven address.

On a table in the kitchen, the police seized high velocity ammunition and .22 caliber ammunition, a box of glassine packets, a bottle of inositol, adhesive tape, a box of utility blades, cutting blades, a razor blade with cocaine residue, a plastic bag with cocaine residue, a plastic gram scale with cocaine residue, a glass bowl with cocaine residue, a glass plate with cocaine residue, a large plastic bag containing a white, rock-like material that was pure cocaine, forty-five plastic bags containing cocaine, and fifty glassine bags containing cocaine. In a bathroom drawer police discovered a glassine package containing powdery material. On a table in the living room, a black address book was found with names and addresses, including the name "Scott," and two sheets of paper covered with numbers.

The glassine packets found on the kitchen table are commonly used to package and sell narcotics, the inositol is mixed with raw narcotics to add bulk for purposes of sale, the razor blades are used to handle the inositol and narcotics, the adhesive tape is used to secure the packaging of narcotics and the surgical mask worn by Jackson is used to avoid inhaling the dust or fumes of the narcotics. The numbers on the two sheets of paper are consistent with narcotics transactions, i.e., quantity of narcotics sold and moneys received. Each of the fifty glassine packets had a street value of $20. It was apparent that narcotics were being cut and bagged when the police entered.

I

The defendant claims that the trial court improperly instructed the jury on the element of possession for purposes of proof on the first two counts. He posits that the instruction given could reasonably have led the jury to conclude that mere physical proximity, coupled with knowledge of the presence of the drugs, was sufficient to make the defendant a possessor.

Our standard of review concerning claims of instructional error is well settled. "[J]ury instructions must be read as a whole and ... are not to be judged in artificial isolation from the overall charge.... The whole charge must be considered from the standpoint of its effect on the jurors in guiding them to a proper verdict ... and not critically dissected in a microscopic search for possible error...." (Citations omitted; internal quotation marks omitted.) Hall v. Burns, 213 Conn. 446, 475, 569 A.2d 10 (1990). The instruction must be adapted to the issues and may not mislead the jury but should reasonably guide it in reaching a verdict. Lemonious v. Burns, 27 Conn.App. 734, 740, 609 A.2d 254, cert. denied, 223 Conn. 915, 614 A.2d 823 (1992). We must review the charge as a whole to determine whether it was correct in law and sufficiently guided the jury on the issues presented at trial. State v. Coleman, 35 Conn.App. 279, 292, 646 A.2d 213 (1994).

Our review of the charge in its entirety leads us to conclude that the trial court's instruction was an adequate statement of the law on the element of possession. The court instructed on the element of possession for purposes of the crimes of possession of cocaine and possession of cocaine with intent to sell as follows: "The first element is that the defendant had possession of a substance. This element of possession means that the defendant knew of its presence and that the defendant actually had the substance on his person, although that is only one form of possession. The word 'possession' as used in this statute has no technical meaning. As I have said, it does not mean that one must have the illegal substance upon his person. Rather, a person who, although not in actual possession, knowingly has the power and the intention at a given time to exercise dominion or control over a thing is deemed to be in constructive possession of that item. It means having something under one's control or dominion. As long as the substance is or was in a place where the defendant could, if he wishes, go and get it, it is in his possession and that possession is illegal if the defendant knew of the unlawful character of the substance and knew of its presence.

"As you ordinarily speak of things, we possess a thing which we have under our immediate control or dominion. You possess the articles on your person because they obviously are within your immediate control or dominion. I possess a book on the desk in front of me even though it actually belongs to the state of Connecticut simply because it's before me and subject to my control and dominion. I possess a briefcase which happens to be in the chambers because it is under my control. Moreover, possession may be jointly held as where two or more persons have dominion and control over the articles involved and where such persons are acting at the time pursuant to a common purpose. In other words, possession may be personal to more than one individual at any given time."

The defendant's counsel, in noting his exception to this portion of the charge, stated: "Your Honor indicated that it was necessary that the defendant exercise dominion and control and that he had both the ability and the intent to exercise control, but then Your Honor gave the jury as a practical illustration, that is, if the substance was in a place where he ... 'could go and get it' ... and that's obviously not the definition of possession, or possession and control which is provided by the law.... The mere ability to go and get it is not enough. And that's an erroneous instruction."

The trial court properly instructed as to the element of possession that the defendant was required not only to know of the presence of narcotics, but also that he intended to and did exercise dominion and control over the drugs. ⁴ Identical or very similar language as used initially by the trial court dealing with the element of possession, actual or constructive, of a narcotic substance has been approved by our Supreme Court. See State v. Williams, 169 Conn. 322, 335 n. 2, 363 A.2d 72 (1975).

The defendant specifically challenges the court's instruction that the defendant would be in possession of the narcotic substance if it was located in a place where "the defendant could, if he wishes, go and get it" being aware of its presence and unlawful character. He argues that this could improperly allow the jury to convict him solely on his knowingly being in the physical proximity of the drugs. We agree that if the narcotics are found in a place where the defendant does not have exclusive possession, the mere presence of the defendant near the contraband, without more, is insufficient to support an inference of possession. State v. Brunori, 22 Conn.App. 431, 436, 578 A.2d 139, cert. denied, 216 Conn. 814, 580 A.2d 61 (1990). We also agree that that portion of the instruction dealing with the ability to "go and get" the contraband,...