State v. Fasano

• Decision Date: 15 March 2005
• Docket Number: (AC 23770).
• Citation: 88 Conn. App. 17,868 A.2d 79
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. ROBERT L. FASANO.

88 Conn. App. 17

868 A.2d 79

STATE OF CONNECTICUT v. ROBERT L. FASANO.

(AC 23770).

Appellate Court of Connecticut.

Argued October 28, 2004.

Officially released March 15, 2005.

West, DiPentima and McLachlan, Js.

Jeremiah Donovan, for the appellant (defendant).

Paul J. Narducci, senior assistant state's attorney, with whom, on the brief, was Kevin T. Kane, state's attorney, for the appellee (state).

Opinion

WEST, J.

The defendant, Robert L. Fasano, appeals from the judgment of conviction, rendered after a jury trial, of possession of heroin with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b). On appeal, the defendant claims that the trial court improperly (1) instructed the jury on the element of possession, (2) denied his request that his business partner's wife, Maeyria Hernandez, be ordered to provide her fingerprints for impeachment purposes, (3) sustained the state's hearsay objection to the defendant's attempt to introduce certain testimony by Jose Hernandez, the defendant's business partner, and (4) denied his motion for a mistrial when, as the defendant alleges, the court improperly characterized certain evidence as "drug money." We disagree and, accordingly, affirm the judgment of the trial court.

The following facts and procedural history are relevant to our disposition of the defendant's appeal. On February 2, 2001, members of the statewide narcotics task force (task force) and officers from the Groton town police department (police department) executed a search and seizure warrant in Groton at 47 South Road, apartment 8B, the residence of the defendant, his wife and their infant child. After entering the apartment and finding the defendant present, the authorities secured him with handcuffs and seated him on a living room couch. Soon thereafter, the defendant indicated to the authorities that in his bedroom there was a large amount of cash that, according to him, belonged to Jose Hernandez. The authorities asked the defendant to show them where the cash was located. He directed them to a closet in his bedroom. There, on the top shelf, they discovered a small cardboard box¹ containing $19,250. The money was stacked in the box in $1000 rolls.²

After locating the box and the money, the authorities returned the defendant to the living room, explained to him his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and then took his statement, which they reduced to writing.³ While the defendant was giving his statement, other members of the task force and the police department continued searching the residence. On the same closet shelf, several feet away from where they had found the box of money, the authorities discovered an envelope with the defendant's name on it. It contained 100 glassine bags that were stamped with the logo "dead presidents."⁴ Their contents field tested positive for heroin.⁵ Laboratory analysis later established that the seized substance was, in total, five grams of heroin.⁶

In an amended, one count information, the defendant was charged with possession of heroin with intent to sell by a person who is not drug-dependent in violation of § 21a-278 (b). At trial, the defendant proffered the testimony of Jose Hernandez, who testified that he, not the defendant, sold heroin and, unbeknownst to the defendant, placed the heroin in question in the defendant's closet. During closing arguments, the state suggested that the jury should question the credibility of Jose Hernandez' testimony in light of, among other things, his earlier testimony that he considered it "important that [he] have the heroin to sell" in order to support his addiction to cocaine. The jury returned a verdict of guilty. The court subsequently committed the defendant to the custody of the commissioner of correction for thirteen years, execution suspended after nine years, and five years of probation. This appeal followed. Additional facts and procedural history will be set forth as necessary.

I

The defendant first claims that the court improperly instructed the jury on the element of possession with respect to the charge of possession of heroin with intent to sell in violation of § 21a-278 (b). Specifically, the defendant argues that the court improperly instructed the jury on "constructive possession" by instructing that the jury could consider him to be in possession of the heroin "[a]s long as the substance [was] in a place where it [was] subject to the defendant's dominion and control, where the defendant [could], if he wish[ed], go and get it," and by not explicitly instructing that the jury must find that he had the intent to control the heroin.⁷ The defendant argues that the instructions improperly could have allowed the jury to convict him if it determined that "he knew that heroin was present in his apartment and was able to retrieve it if he wanted to do so, even though he had no intention to ever exercise dominion and control." Reading the jury instructions as a whole, we disagree with the defendant.

Although the defendant failed to object to the court's instructions, he requests review of his claim pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).⁸ We review the claim under Golding because we conclude that the record is adequate for review and the claim is of constitutional magnitude. "[A]n improper jury instruction as to an essential element of the crime charged may result in the violation of the defendant's due process right to a fair trial . . . ." (Internal quotation marks omitted.) State v. Smith, 70 Conn. App. 393, 398, 797 A.2d 1190, cert. denied, 261 Conn. 924, 806 A.2d 1063 (2002).

The standard of review for constitutional claims of improper jury instructions is well established. "In determining whether it was . . . reasonably possible that the jury was misled by the trial court's instructions, the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding [it] to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied . . . is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result. . . . As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not view the instructions as improper." (Citation omitted; internal quotation marks omitted.) State v. Respass, 256 Conn. 164, 182, 770 A.2d 471, cert. denied, 534 U.S. 1002, 122 S. Ct. 478, 151 L. Ed. 2d 392 (2001).

When, as here, a defendant is charged with possession of narcotics with intent to sell and the contraband is not found on his person, the state must proceed on the theory of constructive possession, that is, possession without direct physical contact. See State v. Berger, 249 Conn. 218, 225, 733 A.2d 156 (1999) (constructive possession of cocaine); State v. Elijah, 42 Conn. App. 687, 698, 682 A.2d 506 (same), cert. denied, 239 Conn. 936, 684 A.2d 709 (1996). "To prove . . . constructive possession of a narcotic substance, the state must establish beyond a reasonable doubt that the accused knew of the character of the drug and its presence, and exercised dominion and control over it. State v. Brunori, 22 Conn. App. 431, 435-36, 578 A.2d 139, cert. denied, 216 Conn. 814, 580 A.2d 61 (1990) . . . ." (Citation omitted.) State v. Cruz, 28 Conn. App. 575, 579, 611 A.2d 457 (1992). In our criminal statutes concerning possession, control of the object must be exercised intentionally. State v. Hill, 201 Conn. 505, 516, 523 A.2d 1252 (1986). That intent may be proved by circumstantial evidence. See State v. Little, 194 Conn. 665, 675, 485 A.2d 913 (1984).⁹

In State v. Elijah, supra, 42 Conn. App. 687, as in the present case, "[t]he defendant specifically challenge[d] the court's instruction that the defendant would be in [constructive] possession of the narcotic substance if it was located in a place where `the defendant could, if he wishe[d], go and get it,' being aware of its presence and unlawful character.<sup>10</sup> He argue[d] that this could improperly allow the jury to convict him solely on his knowingly being in the physical proximity of the drugs. We agree[d] that if the narcotics [were] found in a place where the defendant [did] not have exclusive possession, the mere presence of the defendant near the contraband, without more, [would be] insufficient to support an inference of possession. . . . We also agree[d] that that portion of the instruction dealing with the ability to `go and get' the contraband, if taken alone, would be insufficient to define possession."¹¹ (Citation omitted; emphasis added.) Id., 693. The trial court in Elijah, however, did not limit its definition to the "go and get it" language. Explaining constructive possession to the jury, the trial court in Elijah initially stated: "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 [§ 21a-278 (b)] 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 and control over a thing is deemed to be in constructive possession of that item. It means having something under one's control or dominion." (Emphasis added; internal quotation marks omitted.) Id., 691-92. Considering that initial statement by the trial court, we then commented...