State v. Goodrum

• Decision Date: 26 September 1995
• Docket Number: No. 12615,12615
• Citation: 665 A.2d 159,39 Conn.App. 526
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Stanley GOODRUM.

Page 159

665 A.2d 159

39 Conn.App. 526

STATE of Connecticut v. Stanley GOODRUM.

No. 12615.

Appellate Court of Connecticut.

Argued March 17, 1995.

Decided Sept. 26, 1995.

James B. Streeto, Special Public Defender, for appellant (defendant).

Pamela S. Meotti, Deputy 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 DUPONT, C.J., and FOTI and LAVERY, JJ.

LAVERY, Judge.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278(b), ¹ conspiracy to sell narcotics in violation of General Statutes §§ 53a-48(a) ² and 21a-278(b), possession of marijuana in violation of General Statutes § 21a-279(c), ³ and five counts of violation of probation. ⁴ The defendant claims that (1) the evidence was insufficient to support his conviction of possession of narcotics with intent to sell and conspiracy, (2) the trial court should not have given a Secondino charge, (3) the trial court gave an incorrect consciousness of guilt charge, (4) the trial court should have given the jury an instruction on nonexclusive possession, and (5) the trial court wrongfully admitted evidence of marijuana seized from the defendant's home.

We affirm the conviction with respect to the charges of possession of narcotics with intent to sell by a person who is not drug-dependent, possession of marijuana, and violation of probation. We reverse the conviction on the charge of conspiracy to sell narcotics. We conclude that the evidence adduced at trial was insufficient as a matter of law to support the conviction on the conspiracy count.

The jury could have reasonably found the following facts. In January, 1992, the New Haven police conducted an undercover narcotics investigation that focused on three residences: 265 Dixwell Avenue, 377 Shelton Avenue and 35 Elizabeth Street. During the investigation, detectives saw the defendant enter and exit each location and saw him use his a key to enter 265 Dixwell Avenue. On January 7, the detectives obtained a warrant to search all three residences.

On the morning of January 9, Detective Thomas Trochio and Detective Hilton Wright saw the defendant leave his residence at 377 Shelton Avenue and drive to 265 Dixwell Avenue where the defendant's brother, Moses Pipkin, and son resided. The detectives saw the defendant leave his car and enter 265 Dixwell Avenue carrying a brown paper bag. The defendant used a key to enter the front door of the building. The detectives did not see which apartment the defendant entered.

The detectives returned to the police station to assemble a team of police officers for the purpose of executing the search warrants. They returned to 265 Dixwell Avenue approximately thirty minutes later, knocked on the door to apartment A-1 and announced that they had a search warrant. The defendant was not present. In the apartment were Pipkin and Gloria Daniels.

The police searched the apartment and found a brown paper bag with a McDonald's logo in which were 200 packets containing 7.06 grams of heroin. The packets were stamped with the words "raising hell" and wrapped in rubber bands. The police also recovered nineteen packets of heroin identical to those found in the brown paper bag, nine packets containing approximately 1.33 grams of cocaine found on Daniels, with the box for a beeper with instructions, a piece of wrapping paper addressed to the defendant at 265 Dixwell Avenue, and a Quaker Oats grits container filled with rubber bands. Written on the top of the grits container was "IOU Stan and Betty. 10-C 12-P." The officers arrested Pipkin and Daniels.

The police then proceeded to 377 Shelton Avenue to execute that portion of the warrant. The defendant and Ruth Ford were found there. Upon searching the defendant, the police found a beeper with the same serial number that was on the instructions in the beeper box found at 265 Dixwell Avenue and keys later determined to be for the front door to apartment A-1. When the police asked the defendant how much money he had in his wallet, he said, "$30 or $40." A subsequent search of the defendant's wallet revealed $307, mostly $20 bills.

At the Shelton Avenue residence, the police also found $1554.50, primarily in $1 bills, stored in a plastic water bottle, a jacket similar to that the defendant had been seen wearing earlier that day, six packets of marijuana, and a tray containing marijuana residue and seeds.

At trial, Pipkin testified that he had been hospitalized for three weeks and had returned to his apartment at 265 Dixwell on January 8. Pipkin stated that he gave the defendant the keys to his apartment while he was in the hospital, and that the defendant was the only person with keys to his apartment. He testified that the McDonald's bag was not in his apartment when he returned home on the evening of January 8, or when he left the apartment early the following morning.

Pipkin further testified that when he returned to his apartment on January 9, the defendant was leaving the building and was not carrying the paper bag. He denied that the 200 packets in the paper bag were his. He stated that he first learned of that bag when the police arrived shortly thereafter and found it during their search. Pipkin pleaded guilty to charges of possession of narcotics with intent to sell and conspiracy to sell narcotics.

Trochio testified that, in his experience and training, a user of heroin is not likely to be found with 200 packets of heroin. He also testified that the packaging of the heroin into $20 bags indicated a large scale drug operation. Wright testified that "P-dope" is a street term for heroin.

I

The defendant's first claim is that there was insufficient evidence on the charge of possession of narcotics with intent to sell. He claims that there is no direct proof of his actual possession of the 200 packets of heroin found in a brown paper bag at 265 Dixwell Avenue, and that the circumstantial evidence failed to prove his constructive possession beyond a reasonable doubt. While we agree that the evidence linking the heroin to the defendant was largely circumstantial, we hold that it is sufficient to support the conviction.

"In accordance with well established principles, appellate analysis of a claim of insufficiency of the evidence requires us to undertake a twofold task. We first review the evidence presented at the trial, construing it in the light most favorable to sustaining the jury's verdict. We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt.... In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. State v. Sinclair, 197 Conn. 574, 576, 500 A.2d 539 (1985), and cases there cited. State v. Rollinson, 203 Conn. 641, 665-66, 526 A.2d 1283 (1987)." (Internal quotation marks omitted.) State v. Robinson, 213 Conn. 243, 254, 567 A.2d 1173 (1989). "So far as probative force is concerned, there is no legal distinction between direct and circumstantial evidence." State v. Gaynor, 182 Conn. 501, 506 n. 3, 438 A.2d 749 (1980).

The facts underlying this claim are not in dispute. Rather, the defendant now challenges the resultant inferences drawn by the trier of fact as improperly based on speculation and conjecture. See State v. Somerville, 214 Conn. 378, 389-90, 572 A.2d 944 (1990); State v. Gaynor, supra, 182 Conn. at 503, 438 A.2d 749.

In order to "prove 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. Delossantos, 211 Conn. 258, 277-78, 559 A.2d 164, cert. denied, 493 U.S. 866, 110 S.Ct. 188, 107 L.Ed.2d 142 (1989); State v. Alfonso, 195 Conn. 624, 633, 490 A.2d 75 (1985)." State v. Lee, 32 Conn.App. 84, 98, 628 A.2d 1318, cert. denied, 227 Conn. 924, 632 A.2d 702 (1993), cert. denied, 510 U.S. 1202, 114 S.Ct. 1319, 127 L.Ed.2d 668 (1994). "Where, as in the present case, the contraband is not found on the defendant's person, the state must proceed on the alternative theory of constructive possession, that is, possession without direct physical contact." State v. Brunori, 22 Conn.App. 431, 436, 578 A.2d 139, cert. denied, 216 Conn. 814, 580 A.2d 61 (1990). "Where the defendant is not in exclusive possession of the premises where the narcotics are found, 'it may not be inferred that [the defendant] knew of the presence of the narcotics and had control of them, unless there are other incriminating statements or circumstances tending to buttress such an inference.' " State v. Alfonso, 195 Conn. 624, 633, 490 A.2d 75 (1985).

The statements and circumstances tending to buttress the inference of constructive possession are as follows. Trochio testified that the narcotics were discovered in a brown paper bag in apartment A-1 only thirty minutes after the police observed the defendant enter that same apartment building carrying a similar bag. Only the defendant and Pipkin had keys to the apartment, which suggests that one of them possessed the drugs. Pipkin denied any knowledge of the drugs. He testified that the drugs were not in his apartment the night of January 8 or when he left the apartment on January 9. Pipkin first learned of the drugs when the police found them in the paper bag in the apartment. Moreover, Pipkin saw the defendant leave the apartment building just before the search occurred, and testified that the defendant was not carrying the bag. Pipkin's testimony supports the inference...