State v. Gould, No. 18108.

• Decision Date: 06 January 2009
• Docket Number: No. 18108.
• Citation: 961 A.2d 975,290 Conn. 70
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Kenneth GOULD.

961 A.2d 975

290 Conn. 70

STATE of Connecticut v. Kenneth GOULD.

No. 18108.

Supreme Court of Connecticut.

Argued September 16, 2008.

Decided January 6, 2009.

Jeremy S. Donnelly, for appellant (defendant).

Rita M. Shair, Senior Assistant State's Attorney, with whom, on the brief, were Patricia M. Froehlich, State's attorney, and Roger Caridad, Senior Assistant State's Attorney, for appellee (state).

ROGERS, C.J., and KATZ, PALMER, VERTEFEUILLE and SCHALLER, Js.

ROGERS, C.J.

The defendant, Kenneth Gould, was convicted, after a jury trial, of possession of marijuana with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278(b),¹ possession of marijuana within 1500 feet of a school in violation of General Statutes § 21a-278a(b), possession of marijuana with intent to sell in violation of General Statutes § 21a-277(b), possession of drug paraphernalia in violation of General Statutes § 21a-267(a) and operation of a drug factory in violation of General Statutes § 21a-277(c).² The defendant appeals³ from the judgment of conviction of § 21a-278(b), claiming that: (1) this court's previous cases construing § 21a-278(b) and General Statutes § 21a-269⁴ to require the defendant to prove by a preponderance of the evidence that he was drug-dependent were wrongly decided; and (2) if those cases were decided correctly, the requirement that the defendant prove his drug dependency under §§ 21a-278(b) and 21a-269 violates his due process right to have every element of the offense proved beyond a reasonable doubt. The defendant also challenges his conviction on all of the charges on the ground that the prosecutor engaged in impropriety during closing arguments. We reject all of the defendant's claims and affirm the judgment of conviction.

The jury reasonably could have found the following facts. In February, 2005, postal inspectors employed by the United States Postal Service became suspicious that a package addressed to the defendant's uncle, James Gould (Gould), at his apartment at 114 Pomfret Street in Putnam, contained narcotics. They shipped the package to Thomas Lambert, a postal inspector in Wallingford, for investigation. Lambert obtained a federal search warrant, opened the package and found a large ball containing marijuana. Lambert then notified the statewide narcotics task force (task force) of his find and, together, they arranged a controlled delivery to Gould. Accompanied by a surveillance team of task force members, Lambert drove to Gould's residence and delivered the package. After Gould accepted the package, Lambert identified himself as a federal agent and the task force members entered the residence. Gould told the task force members that the package did not belong to him, but to the defendant. Gould stated that he had accepted a package for the defendant every two or three weeks and had notified him by telephone when the packages arrived. In exchange for this service, the defendant gave marijuana to Gould, which he used for pain relief.

The task force members asked Gould to call the defendant, as he usually did after receiving a package. He did so and, shortly thereafter, the defendant arrived at the apartment and took possession of the package. The task force members then arrested him. When they searched him, they found a cellular telephone and nearly $1000 in cash. They also searched the truck that he had driven to the residence and found several bags containing plant-like material, a small grinder, a scale and a partially burnt, hand rolled cigarette.

The day after the defendant's arrest, Lambert received a telephone call from the postmaster in Putnam, who advised him that another package addressed to Gould had arrived at the Putnam post office. Lambert applied for a search warrant, opened the package and found marijuana. Gould's apartment at 114 Pomfret Street in Putnam is 283 feet from a school known as the Putnam Science Academy.

Thereafter, the defendant was charged with multiple drug offenses. At trial, he testified that he never had sold any of the marijuana that he picked up at Gould's apartment, but had used it all himself. He further testified that he had smoked marijuana everyday for thirteen years except for the twenty-nine days that he had spent in jail after his arrest in this case. He smokes several times a day, and smoking no longer gets him "high," but gets him to "normal." As a condition of probation, the defendant was required to receive treatment for marijuana dependency at a facility that he identified as "New Perceptions." He continued to use marijuana during treatment and obtained a "kit" that allowed him to pass the required urine tests. The defendant's father and uncle, Kenneth Gould, Sr., and William Gould, Sr., respectively, and the defendant's coworker and friend, Bernard Burgess, all testified that the defendant had used marijuana extensively.

The trial court instructed the jury that the defendant was required to prove that he was drug-dependent, as that term is defined in General Statutes § 21a-240(18),⁵ by a preponderance of the evidence. The defendant did not object or take exception to this instruction.

After the jury returned a verdict of guilty on the drug charges, as previously set forth in this opinion, the defendant filed a motion for judgment of acquittal on the ground that the jury could not reasonably have concluded that he had failed to establish that he was drug-dependent by a preponderance of the evidence. The trial court denied the motion.⁶ The defendant then filed an amended motion for judgment of acquittal in which he argued that the requirement that the defendant prove his drug dependency by a preponderance of the evidence under § 21a-278(b) violated his constitutional right to have every element of an offense proved beyond a reasonable doubt. The trial court also denied that motion. The trial court then rendered judgment in accordance with the jury verdict. This appeal followed.

I

We first address the defendant's claims that: (1) this court incorrectly held in State v. Januszewski, 182 Conn. 142, 166, 438 A.2d 679 (1980), cert. denied, 453 U.S 922, 101 S.Ct. 3159, 69 L.Ed.2d 1005 (1981), and State v. Hart, 221 Conn. 595, 609, 605 A.2d 1366 (1992), that the defendant is required under §§ 21a-278(b) and 21a-269 to prove by a preponderance of the evidence that he was drug-dependent at the time of the offenses; and (2) if those cases were decided correctly, the requirement that he prove his drug dependency violates his due process right to have every element of the offense proved beyond a reasonable doubt.⁷ We considered and rejected identical claims in our decision in State v. Ray, 290 Conn. 24, 29-48, 961 A.2d 947 (2009), which was released on the same date as this opinion. We adopt the reasoning and result of that decision herein. Accordingly, we reject these claims.

II

We next address the defendant's claim that the prosecutor engaged in impropriety during closing arguments. The following additional facts are relevant to our resolution of this claim. During trial, Gould testified that he usually held the packages only briefly before the defendant would come to his apartment to pick them up. On cross-examination, defense counsel asked Gould about one occasion when the defendant had gone to the Super Bowl in Florida. Gould said that he did not recall that occasion and that the defendant was always at home when the packages arrived.

During closing arguments, counsel for the defendant pointed out that the evidence showed that one or two packages had arrived at Gould's apartment while the defendant had been in Florida. He argued that this showed that Gould's testimony was "flimflam."

During rebuttal, the prosecutor made the following statements: "What we say is not evidence. Neither is it the law. We're allowed to discuss the law, but [what] we say is argument only. And any reasonable doubt must be based on evidence or lack of evidence and not the ingenuity of counsel.

"And speaking of counsel's ingenuity, he used a couple of times the words `flimflam' in describing ... Gould and describing his testimony. And one of the things that he's suggested that should cause you to pause is the fact that while he was receiving these shipments of marijuana, the defendant went to the Super Bowl and he suggested to you that that contradicts the testimony of ... Gould because ... Gould said, well, when I called him, he would show up within an hour. And that therefore ... Gould must be lying.

"But did you notice that he never asked ... Gould that question. He never said, gee, did there come a time when [the defendant] took a trip and perhaps you held a package for him for a day or two? Never asked that. Why not? He didn't want you to hear the answer."

The defendant did not object to the prosecutor's statements during trial. He now claims, however, that the statements regarding defense counsel's failure to ask Gould whether he had ever held packages for the defendant for one day or more were improper because they implied that "[defense counsel] had not based his argument on fact or reason, but had intended to mislead the jury by means of an artfully deceptive argument." State v. Orellana, 89 Conn.App. 71, 103, 872 A.2d 506, cert. denied, 274 Conn. 910, 876 A.2d 1202 (2005). In addition, he claims that the prosecutor's reference to "ingenuity of counsel" was improper under this court's decision in State v. Delvalle, 250 Conn. 466, 475, 736 A.2d 125 (1999), in which we directed the trial courts to refrain from using that language because "the phrase, taken in isolation, conceivably could misdirect the jury's attention...." (Internal quotation marks omitted.)

We previously have recognized that a claim of prosecutorial impropriety, even in the absence of an objection, has constitutional implications and requires a due process analysis under State v. Williams, 204 Conn. 523, 535-40, 529 A.2d 653 (1987). See State v....