State v. Gooden

• Citation: 873 A.2d 243,89 Conn. App. 307
• Decision Date: 31 May 2005
• Docket Number: (AC 23647).
• Court: Appellate Court of Connecticut
• Parties: STATE OF CONNECTICUT v. ANTHONY C. GOODEN

89 Conn. App. 307

873 A.2d 243

STATE OF CONNECTICUT v. ANTHONY C. GOODEN

(AC 23647).

Appellate Court of Connecticut.

Argued February 8, 2005.

Officially released May 31, 2005.

Flynn, Bishop and Harper, Js.

Neal Cone, senior assistant public defender, for the appellant (defendant).

James A. Killen, senior assistant state's attorney, with whom, on the brief, were Jonathan C. Benedict, state's attorney, and Brian F. Kennedy, senior assistant state's attorney, for the appellee (state).

Opinion

FLYNN, J.

The defendant, Anthony C. Gooden, appeals from the judgment of conviction, following a jury trial, of one count of possession of narcotics in violation of General Statutes § 21a-279 (a), one count of possession of narcotics with the intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b) and two counts of sale of narcotics by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b). On appeal, the defendant claims that the court violated his right to due process by improperly instructing the jury (1) on the elements of the crimes of possession of narcotics and possession of narcotics with the intent to sell and (2) on the state's burden of proof. We agree in part with the defendant's first claim, and reverse the judgment in part and order a new trial as to the counts of possession of narcotics in violation of § 21a-279 (a) and possession of narcotics with the intent to sell by a person who is not drug-dependent in violation of § 21a-278 (b). We affirm the judgment in all other respects.

The jury reasonably could have found the following facts. On September 15, 1999, during an undercover police operation, a confidential informant, Michael Young, arranged to meet the defendant at a Bridgeport restaurant. Young was accompanied by an undercover police officer, James Lofton. Five additional officers were located inside and outside of the restaurant in order to observe the defendant's interactions with Young and Lofton. The defendant, wearing a white Tommy Hilfiger jacket, arrived at the restaurant in a gray Ford Taurus and parked alongside Young's vehicle. Young introduced Lofton as a friend, and the defendant asked Lofton how many he wanted. Lofton said that he wanted two and gave the defendant two previously photocopied $20 bills. The defendant gave Young two plastic bags containing cocaine, which Young passed to Lofton. The defendant, after exiting his vehicle to use a pay telephone, returned and drove away. A few of the officers followed the defendant to 300 French Street in Bridgeport after witnessing the transaction. The officers determined that the vehicle driven by the defendant was registered at that address in the name of Barbara Manning.

Two days later, Young and Lofton again arranged to meet the defendant, this time in Stratford. The defendant drove up in a white Pontiac Grand Am and asked Young and Lofton how many they wanted. Lofton said he wanted two and handed previously photocopied money to Young, who then handed it to the defendant. The defendant gave Young two plastic bags containing cocaine. Four of the officers who had witnessed the previous Bridgeport sale also witnessed the Stratford incident.

On September 23, 1999, members of the Stratford and state police simultaneously executed two search warrants, one at 11 Justice Street, the home of Kanzada Bishop, the defendant's girlfriend at the time, and one at Manning's 300 French Street address. Upon executing the Justice Street warrant, the police forced entry into the home and found the defendant in a bedroom. The defendant had $614 in his pocket and the keys to the white Grand Am, which was parked in the driveway. Cocaine was found in the overhead compartment of the automobile. Upon executing the warrant at the French Street location, the officers found a suitcase and a storage bin inside of a closet. A Tommy Hilfiger jacket, which matched the description of the jacket worn by the defendant during the first drug transaction, was found in the storage bin in the closet. In its pocket, the officers found a large amount of cocaine. Cocaine was also found packaged in tinfoil on the bathroom floor.

One of the keys from the defendant's key ring, which was seized at the Justice Street location, opened the suitcase from the French Street location. The police found jewelry, papers and approximately $9900 inside of the suitcase. The previously photocopied $20 bills were among the cash found in the suitcase.

During trial, the defendant testified that he was in New York from September 12 through 20, 1999, at the same time that the police say he participated in these drug transactions. He also testified that money seized in the suitcase was money that had been saved for his grandmother's surgery. The testimony of several witnesses confirmed the defendant's New York alibi and his explanation concerning the money. The jury found the defendant guilty on all counts. This appeal followed.

On appeal, the defendant claims that the court violated his right to due process¹ by improperly instructing the jury (1) on the elements of the crimes of possession of narcotics and possession of narcotics with the intent to sell and (2) on the state's burden of proof. The defendant requests review of these unpreserved claims pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).²

"In Golding, our Supreme Court held that a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant's claim will fail. The appellate tribunal is free, therefore, to respond to the defendant's claim by focusing on whichever condition is most relevant in the particular circumstances." (Emphasis in original; internal quotation marks omitted.) State v. Mussington, 87 Conn. App. 86, 91-92, 864 A.2d 75, cert. denied, 273 914, A.2d (2005). "The first two [prongs of Golding] involve a determination of whether the claim is reviewable; the second two . . . involve a determination of whether the defendant may prevail." State v. George B., 258 Conn. 779, 784, 785 A.2d 573 (2001).

We conclude that the first two prongs of Golding are satisfied in this case, that is, the record is adequate for review and the claims are of constitutional magnitude. See State v. Leroy, 232 Conn. 1, 7, 653 A.2d 161 (1995) ("an 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, and thus require the reversal of a conviction based upon that instruction"). Accordingly, we conclude that the defendant's claims are reviewable.³

I

The first part of the defendant's due process claim concerns the court's instructions to the jury on the elements of the crimes of possession of narcotics and possession of narcotics with the intent to sell. The possession of narcotics charge stemmed from the police discovery of cocaine in the overhead compartment of Manning's automobile while it was parked at Bishop's home on Justice Street. The charge of possession of narcotics with intent to sell stemmed from the cocaine that was found in the pocket of the Tommy Hilfiger jacket, which was discovered in a clothing storage bin in the closet at Manning's French Street apartment.

"An accused has a fundamental right, protected by the due process clauses of the federal and Connecticut constitutions, to be acquitted unless proven guilty of each element of the charged offense beyond a reasonable doubt. . . . This court has consistently held that a claim that the judge improperly instructed the jury on an element of an offense is appealable even if not raised at trial. . . .

"For challenges to jury instructions, we employ the following standard of review. [A] charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court's charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it 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. . . . We do not critically dissect the charge in order to discover possible inaccurate statements. . . . Rather, we see if [the jury instructions] gave the jury a reasonably clear comprehension of the issues presented for their determination under the pleadings and upon the evidence and were suited to guide the jury in the determination of those issues.. . . [I]n our task of reviewing jury instructions, we view the instructions as part of the whole trial. . . . 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. Even if instructions are found to be improper, we must further determine whether they have been prejudicial to the claiming party by adversely affecting the trial's outcome." (Citation omitted; internal quotation marks omitted.) State v. Charles, 78 Conn. App. 125, 128-29, 826 A.2d 1172, cert. denied, 266 Conn. 908, 832 A.2d 73 (2003).

"[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...