State v. Holloway

• Decision Date: 10 November 2009
• Docket Number: No. 29051.,29051.
• Citation: 982 A.2d 231,117 Conn.App. 798
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Branden HOLLOWAY.

982 A.2d 231

117 Conn.App. 798

STATE of Connecticut v. Branden HOLLOWAY.

No. 29051.

Appellate Court of Connecticut.

Argued May 18, 2009.

Decided November 10, 2009.

Mark Rademacher, assistant public defender, for the appellant (defendant).

Timothy J. Sugrue, senior assistant state's attorney, with whom, on the brief, were David I. Cohen, state's attorney, and Rita M. Shair and Richard Colangelo, senior assistant state's attorneys, for the appellee (state).

DiPENTIMA, LAVINE and WEST, JS.

WEST, J.

The defendant, Branden Holloway, appeals from the judgment of conviction, rendered after a jury trial, of criminal possession of a pistol or revolver in violation of General Statutes § 53a-217c(a)(1), possession of a weapon in a motor vehicle in violation of General Statutes § 29-38, possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278(b) and possession of narcotics with intent to sell within 1500 feet of a public housing project in violation of General Statutes § 21a-278a(b). The defendant makes several claims on appeal. First, he claims that the court improperly removed from the jury the determination of whether he met the statutory definition of a drug-dependent person. Next, the defendant claims that the court improperly admitted evidence of his prior misconduct. The defendant also claims that the court improperly failed to instruct the jury on the doctrine of nonexclusive possession with regard to the pistol or revolver. Last, the defendant claims that the court imposed an improper sentence for his conviction of criminal possession of a pistol or revolver. We affirm in part and reverse in part the judgment of the trial court.

The jury reasonably could have found the following facts. On the morning of November 28, 2005, Sergeant William Lowe, Detective Mark Lepore and Officer Terrance Blake of the Norwalk police department were assigned to locate and to arrest the defendant pursuant to a warrant for a violation of probation. The three police officers, traveling together in an unmarked police cruiser and dressed in plain clothes, headed to the area surrounding the Colonial Village public housing project—the area they were assigned to search. They were aware that the defendant likely was driving a black Hyundai for which they had the license plate number. The officers drove to a parking area behind a strip mall located at 280 Connecticut Avenue, across the street from Colonial Village. As the officers approached this area, Blake, who was driving, saw a black Hyundai parked perpendicular to a wall. The license plate number matched the one that the officers were given, and Blake parked so that the Hyundai was blocked by the cruiser. Parked next to the Hyundai was a white Nissan Sentra, in which Frank Bruno was seated. The defendant was walking from his vehicle to the Nissan as the officers approached; he was between the two vehicles as the officers exited the cruiser.

Upon exiting the cruiser, the officers identified themselves, drew their revolvers, ordered the defendant to stop and put his hands up and informed him that he was under arrest. The defendant did not comply and moved toward the wall adjacent to where his car was parked. Lepore walked to one side of the Hyundai while Blake walked between the Nissan and the Hyundai in an effort to cut off any means of escape for the defendant. Lowe, who noticed that Bruno was attempting to swallow something that Lowe believed to be packaged cocaine, approached the Nissan and, through the driver's side window, attempted to stop Bruno from swallowing the contraband by grasping him by the jaw. As Lowe confronted Bruno, Lepore and Blake attempted to place the defendant under arrest and to handcuff him. The defendant became verbally abusive and resisted their efforts to handcuff him by kicking and elbowing the officers, tensing his arms, thrashing his body and limbs about and wrestling with the officers. During this struggle, Lepore, in an effort to gain control of the defendant, punched him multiple times on the back and upper arms. This had no discernible effect because the defendant continued to resist the officers.

At one point during the struggle with the defendant, Blake released his grip on him and retrieved a Taser gun from Lepore's utility belt. Blake warned the defendant twice that if he did not stop resisting, he would be immobilized with the Taser gun. When the defendant did not comply, Blake shot him with the Taser gun in the back after which the defendant fell to the ground and was handcuffed.¹ Soon after the defendant was subdued, Blake searched him and retrieved from his left front pants pocket a plastic bag containing twelve bags of a white powdery substance. Subsequent chemical testing conducted by Lepore and then by Rafal Mielguj, a department of public safety chemist, confirmed that the substance was cocaine. Mielguj determined that the cocaine seized from the defendant weighed approximately seventeen grams and was divided into the twelve bags in amounts varying from about one third of a gram to more than five grams.

During the struggle with the defendant, Lepore radioed for backup assistance. Greg Scully, a Norwalk police officer, responded to Lepore's call. Upon arriving at the scene, Scully saw a man later identified as Sean Sullivan, the defendant's cousin, who was carrying a small gray plastic bag, run from the area. Previously, Sullivan had been seated in the Hyundai during the officers' interactions with the defendant and Bruno. As the defendant was being handcuffed, Sullivan exited the Hyundai and ran away. Scully pursued Sullivan in his vehicle. At no time prior did Lowe, Lepore or Blake observe Sullivan in the Hyundai. Soon after he started pursuing Sullivan, Scully exited his vehicle and continued to pursue him on foot. Scully then tackled and subdued Sullivan. Scully found a loaded nine millimeter Tech-9 handgun along with an instruction manual for the weapon inside the gray plastic bag.

The jury subsequently found the defendant guilty of criminal possession of a pistol or revolver, possession of a weapon in a motor vehicle, possession of narcotics with intent to sell by a person who is not drug-dependent and possession of narcotics with intent to sell within 1500 feet of a public housing project. The court imposed a total effective sentence of fifteen years incarceration. This appeal followed. Further facts will be set forth as necessary.

I

The defendant first claims that the court improperly removed from the jury the determination of whether he met the statutory definition of a drug-dependent person.² As a result, the defendant contends, the court denied the defendant his constitutional rights to present a defense and to have issues of fact decided by a jury. The defendant asserts, therefore, that his conviction of both possession of narcotics with intent to sell by a person who is not drug-dependent and possession of narcotics with intent to sell within 1500 feet of a public housing project should be reversed and remanded for a new trial.³

The state concedes that the court improperly removed from the jury the determination of whether the defendant met the statutory definition of a drug-dependent person. The state, however, argues that the remedy sought by the defendant is inappropriate. The state contends that this court should reverse the defendant's conviction of possession of narcotics with intent to sell by a person who is not drug-dependent only and remand the case with direction to modify that conviction to reflect the lesser included offense of sale of narcotics in violation of General Statutes § 21a-277(a). We disagree with both parties and reverse only the conviction of possession of narcotics with intent to sell by a person who is not drug-dependent and remand the case for a new trial on that charge.

A

Our Supreme Court has stated that a "trial court should instruct the jury concerning the issue of drug dependency and [a] defendant's burden of proof if it determines that there is any foundation in the evidence, no matter how weak or incredible...." (Internal quotation marks omitted.) State v. Hart, 221 Conn. 595, 613, 605 A.2d 1366 (1992). Here, the defendant presented evidence of drug dependency. First, the defendant testified that he smoked marijuana on a daily basis and used phencyclidine, otherwise known as PCP, on a weekly basis. The defendant also presented as a full exhibit a discharge summary from his stay at Norwalk Hospital subsequent to his arrest. That summary stated that the defendant had a "[h]istory of daily marijuana use and weekly PCP use." It also stated that a urinalysis showed a positive result for the presence of marijuana and PCP. The defendant's grandmother also testified that she had been aware of his marijuana use and had once seen him under the influence of drugs. The defendant also called as a witness Edward Conway, a probation officer personally familiar with the defendant and his probation file. Conway testified that the defendant had submitted to a urinalysis as a part of his conditions of probation. He testified that it was positive for drug use. Conway also testified that as a result of that positive test, the office of adult probation referred the defendant for substance abuse treatment at Connecticut Renaissance. Last, Conway testified that one of the reasons that the violation of probation warrant was issued was that the defendant tested positive for drug use and was noncompliant with substance abuse treatment. Furthermore, Bruno and Jourden Huertas, the defendant's brother, also testified that the defendant regularly used marijuana and PCP.

During the testimony of James Gadzik, a trauma surgeon who treated the defendant while he was an inpatient at Norwalk Hospital, the defendant attempted to admit into evidence a psychological assessment performed by Sheila Devlin-Craane, a nurse practitioner of...