State v. Gainey

• Decision Date: 01 September 2009
• Docket Number: No. 29143.,29143.
• Citation: 977 A.2d 257,116 Conn.App. 710
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Ontario I. GAINEY.

977 A.2d 257

116 Conn.App. 710

STATE of Connecticut v. Ontario I. GAINEY.

No. 29143.

Appellate Court of Connecticut.

Argued April 30, 2009.

Decided September 1, 2009.

Kent Drager, senior assistant public defender, for the appellant (defendant).

James M. Ralls, senior assistant state's attorney, with whom, on the brief, were John A. Connelly, state's attorney, and David A. Gulick, assistant state's attorney, for the appellee (state).

FLYNN, C.J., and ROBINSON and LAVERY, Js.

LAVERY, J.

The defendant, Ontario I. Gainey, appeals from the judgment of conviction, rendered after a jury trial, of possession of narcotics in violation of General Statutes § 21a-279(a).¹ On appeal, the defendant claims that (1) the trial court improperly responded to a jury question regarding nonexclusive possession and (2) the evidence adduced at trial was insufficient to prove that he constructively possessed the heroin found hidden in a car.² We agree with the defendant on both claims and reverse the judgment of the trial court.

The jury reasonably could have found the following facts. On November 10, 2005, the Waterbury police department served a search warrant for the defendant, his residence and a Chevrolet Blazer (Blazer) in the yard. Upon the police officers' entry into the house where the defendant resided, they detained the defendant and a female individual inside. One of the officers found a set of keys in one of the bedrooms on the first floor, which unlocked the Blazer in the yard.³ Also found in that bedroom was an eviction notice addressed to the defendant and a Jane Doe. The search then moved to the kitchen where a scale and a plastic bag with rice were found. There were no drugs, money or needles found in the house. The search then continued inside the Blazer. The search yielded a two month old Connecticut Light and Power Company shut off notice in the defendant's name, a screwdriver that was being used to start the ignition, as well as a cellular telephone instruction manual with the defendant's nickname written on it with "several hearts and designs on it" found under the rear seat. But the search did not yield any insurance or registration cards, and the last registered owner of the vehicle was not the defendant. Hidden in the ashtray area in the rear passenger compartment, the officers found a plastic bag with several ounces of rice and fifteen blue glassine bags with a brown substance in it that was later confirmed as heroin.

During deliberation, the jury sent seven notes to the court. The first note requested that the testimony regarding the plastic bag in which the heroin was stored be read back. The court complied with this request. The second note requested that the court repeat its charge to the jury on the charged offense and the lesser included offense. The court in response reread a portion of its instructions and provided the jury with a three page handout of its instructions. The third note requested that the court "define further: `knowingly possessed or had under his control'? More specific what does under control mean?" The court responded by rereading the instructions it previously had given on constructive possession. The fourth note requested that the jurors have the response to their third note in writing. The court responded by providing the jury with a two page handout containing the instructions requested. The fifth note indicated that the jury had reached a verdict on the first count but had reached a stalemate as to the lesser charge. The court responded by giving a "Chip Smith" charge.<sup>4</sup> The sixth note had four separate questions: (1) "[w]ith regards to `constructive possession' in court exhibit [six], it is stated that constructive possession requires two things, control and knowledge. Can we find constructive possession with only knowledge or only control. Because in court exhibit [three] it states or not and"; (2) "If we find joint possession do we have to find exclusive control?"; (3) "Can you define exclusive control?"; and (4) "If we find the defendant is not the exclusive owner of the vehicle can we still infer that he contro[l]led the vehicle?" (Emphasis in original.) The court responded to the note by saying, "I cannot answer specific questions that you ask under our law, but I am going to send you back into the jury room with court's exhibit nine, which is a chronological portion or an orderly portion of more of the instruction. It includes the portions that you previously had, and those were provided to you separately to answer or to assist you in answering your earlier questions." The jury's final note indicated that the jury had reached a decision on both counts. The jury found the defendant not guilty of possession of narcotics with intent to sell by a person who is not drug-dependent and guilty of possession of narcotics. The court sentenced the defendant to a term of four and one-half years imprisonment. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant claims that the court improperly addressed the sixth jury note that specifically asked for direction on exclusive control and whether an inference of control of the vehicle could be made if the defendant was not the exclusive owner. The state argues that the court fairly informed the jury of the law and gave it sufficient guidance. We agree with the defendant.

The defendant did not preserve his claim and seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).⁵ We conclude that the first prong of Golding is satisfied because we were presented with a full transcript of the hearings and the jury notes so that the record is adequate for review. We conclude that because the jury clearly alerted the court about its confusion as a result of the instructions regarding the element of possession, the claim is of constitutional magnitude. See State v. Leroy, 232 Conn. 1, 7, 653 A.2d 161 (1995). Accordingly, we conclude that the defendant's claim is reviewable.

Because we conclude that the defendant's claim is reviewable, we identify the applicable standard of review and set forth the legal principles that govern our resolution of the defendant's instructional claims. "[I]ndividual jury instructions should not be judged in artificial isolation, but must be viewed in the context of the overall charge.... The pertinent test is whether the charge, read in its entirety, fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law.... Thus, [t]he whole charge must be considered from the standpoint of its effect on the [jurors] in guiding them to the proper verdict ... and not critically dissected in a microscopic search for possible error.... Accordingly, [i]n reviewing a constitutional challenge to the trial court's instruction, we must consider the jury charge as a whole to determine whether it is reasonably possible that the instruction misled the jury.... In other words, we must consider whether the instructions [in totality] are sufficiently correct in law, adapted to the issues and ample for the guidance of the jury." (Citation omitted; internal quotation marks omitted.) State v. Peeler, 271 Conn. 338, 360-61, 857 A.2d 808 (2004), cert. denied, 546 U.S. 845, 126 S.Ct. 94, 163 L.Ed.2d 110 (2005). "[I]n appeals involving a constitutional question, [the standard is] whether it is reasonably possible that the jury [was] misled." (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).

"[A] jury instruction that improperly omits an essential element from the charge constitutes harmless error if a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error. ..." (Emphasis in original; internal quotation marks omitted.) State v. Montgomery, 254 Conn. 694, 738, 759 A.2d 995 (2000), quoting Neder v. United States, 527 U.S. 1, 17, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999).

In its instructions to the jury, the court discussed that there may be either actual or constructive possession, and it explained what is needed to establish either. There was no instruction or guidance from the court, however, on nonexclusive possession. The defendant does not claim that this omission in the original instruction was improper, only that it was improper not to address it once the jury explicitly raised the issue. The state argues that this claim has been considered and rejected by this court in State v. Crawley, 93 Conn.App. 548, 567, 889 A.2d 930, cert. denied, 277 Conn. 925, 895 A.2d 799 (2006). We conclude that this case is readily distinguishable from Crawley. To start, in Crawley, the defendant claimed impropriety in the original jury charge in that the court failed to address nonexclusive possession. Id., at 565, 889 A.2d 930. Further, this court held that "with regard to the doctrine of nonexclusive possession, the court's failure to deliver such an instruction on its own initiative, absent a request to charge, would constitute a constitutional violation only if the court was obligated to deliver such an instruction when it is warranted by the evidence in a case before it." Id. at 568, 889 A.2d 930. Most importantly, the jury in Crawley did not itself request instruction on nonexclusive possession. Id. Here, when the jury itself requested instruction on this doctrine, and having evidence that warranted such an instruction, not providing the jury with what it needed to decide this case was a constitutional violation.

There was testimony in this case that there was another person in the house when the police served the search warrant and testimony that an officer found an eviction notice addressed to the defendant and a Jane Doe. There was no police testimony that it was clear that the bedroom...