State v. Jarrett

• Decision Date: 20 April 2004
• Docket Number: (AC 23506).
• Citation: 82 Conn. App. 489,845 A.2d 476
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. DANIEL JARRETT.

82 Conn. App. 489

845 A.2d 476

STATE OF CONNECTICUT v. DANIEL JARRETT.

(AC 23506).

Appellate Court of Connecticut.

Argued December 1, 2003.

Officially released April 20, 2004.

Foti, Dranginis and McLachlan, Js.

Raymond L. Durelli, special public defender, for the appellant (defendant).

Proloy K. Das, special deputy assistant state's attorney, with whom, on the brief, were James E. Thomas, state's attorney, and Victor Carlucci, Jr., senior assistant state's attorney, for the appellee (state).

Opinion

McLACHLAN, J.

The defendant, Daniel Jarrett, appeals from the judgment of conviction, rendered after a jury trial, of possession of four ounces or more of a cannabis-type substance in violation of General Statutes § 21a-279 (b), criminal possession of a pistol or revolver in violation of General Statutes § 53a-217c and possession of a sawed-off shotgun in violation of General Statutes § 53a-211. The defendant claims that the trial court improperly (1) instructed the jury on constructive possession, (2) instructed the jury on his presumption of innocence and (3) admitted into evidence items regarding proof of residence. The defendant also claims that prosecutorial misconduct deprived him of his due process right to a fair trial. We affirm the judgment of the trial court.

The relevant facts are as follows. On December 22, 2000, detectives from the Hartford police department executed a search warrant at apartment 202 at 68-70 Morris Street, from which the defendant was allegedly selling drugs. They recovered more than four pounds of marijuana, a .32 caliber pistol and a sawed-off shotgun. They also seized numerous items identifying the defendant. An arrest warrant for the defendant was obtained and successfully executed on February 22, 2001.

The defendant was charged by substitute information with possession of four ounces or more of a cannabis-type substance in violation of § 21a-279 (b), possession with intent to sell one kilogram or more of a cannabistype substance in violation of General Statutes § 21a-278 (b), criminal possession of a pistol or revolver in violation of § 53a-217c and possession of a sawed-off shotgun in violation of § 53a-211. After a trial by jury, the defendant was found guilty on all but the possession with intent to sell count. The defendant filed motions for a judgment of acquittal and for a new trial, which were denied. The court sentenced the defendant to a total of ten years incarceration, execution suspended after eight years, with five years probation. This appeal followed.

I

The defendant first claims that the court improperly instructed the jury on constructive possession. The defendant did not file a written request to charge and failed to object to the court's instructions. He now requests review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).¹ We review his claim under Golding because the record is adequate for review and the claim is of constitutional magnitude. "[A]n 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 ...." (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).

The standard of review for constitutional claims of improper jury instructions is well settled. "In determining whether it was . . . reasonably possible that the jury was misled by the trial court's instructions, the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case. ... The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge.... The test to be applied ... is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result.... 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." (Citation omitted; internal quotation marks omitted.) State v. Respass, 256 Conn. 164, 182, 770 A.2d 471, cert. denied, 534 U.S. 1002, 122 S. Ct. 478, 151 L. Ed. 2d 392 (2001).

The defendant was charged with four possessory offenses. On appeal, he claims that the court's instruction on constructive possession was improper because it did not adequately address intent.² We disagree.

To prove constructive possession, the state must prove that the defendant exercised dominion and control over the contraband and had knowledge of its presence and character. State v. Hernandez, 254 Conn. 659, 669, 759 A.2d 79 (2000). In our criminal statutes concerning possession, control must be exercised intentionally. State v. Hill, 201 Conn. 505, 516, 523 A.2d 1252 (1986). Thus, to meet the requirements of control, the defendant must have intended to exercise control over the object. That intent may be proved by circumstantial evidence. State v. Knight, 56 Conn. App. 845, 851, 747 A.2d 13 (2000).

The court's instructions informed the jury that control "is to be given its ordinary meaning; that is to say that the defendant is in control of the cannabis-type substance when it is shown that he exercises a direct control over it...." (Emphasis added.) That description is significant, for it suggests an "[i]mmediate or proximate" control. Ballentine's Law Dictionary (3d Ed. 1969). To "direct" is to guide, regulate or control. Id.

The court's instructions on possession in the present case followed almost verbatim the model jury instructions found in J. Pellegrino, Connecticut Selected Jury Instructions: Criminal (3d Ed. Rev. 2001) § 8.1, p. 383. Neither mention intentional control. A review of constructive possession in Connecticut law indicates that explicit reference to intentional control is the exception, not the norm. Our decisions consistently have held that to prove either actual or constructive possession, the state must prove that the defendant exercised dominion and control over the contraband and had knowledge of its presence and character. See State v. Hernandez, supra, 254 Conn. 669; State v. Nesmith, 220 Conn. 628, 634 n.9, 600 A.2d 780 (1991); State v. Reddick, 207 Conn. 323, 328, 541 A.2d 1209 (1988); State v. Sanchez, 75 Conn. App. 223, 242, 815 A.2d 242, cert. denied, 263 Conn. 914, 821 A.2d 769 (2003); State v. Thompson, 46 Conn. App. 791, 797-98, 700 A.2d 1198 (1997). Furthermore, Connecticut appellate courts have rejected challenges to jury instructions due to the lack of an explicit instruction on intentional control. See State v. Respass, supra, 256 Conn. 181-84; State v. Smith, 38 Conn. App. 29, 43, 658 A.2d 156 (1995). Accordingly, we hold that a separate instruction on the requirement of intentional control need not be provided in every instance. Because the court instructed the jury that it must find that the defendant exercised direct control over the alleged contraband, we conclude that the jury was instructed properly on intentional control.

The defendant also claims that the court failed to instruct the jury that constructive possession required him to have knowledge of the character of the contraband. That claim merits little discussion. In its instructions, the court stated that the state must "prove beyond a reasonable doubt that the defendant knowingly possessed the cannabis-type substance." In addition, the court provided an illustrative example, explaining that "I have constructive possession of the books and other things in my office, even though they are not in my hands, because I have control over them, and I know what and where they are." We conclude that the court properly instructed the jury that the defendant was required to have knowledge of the character of the contraband.

Reading the court's charge as a whole, we conclude that the jury was instructed properly on constructive possession. Accordingly, the defendant's claim fails to satisfy Golding's third prong.

II

The defendant claims that the court improperly instructed the jury on his presumption of innocence. The defendant again did not file a written request to charge or object to the court's instructions. Again, he requests review under State v. Golding, supra, 213 Conn. 239-40.³

The defendant's claim has little merit. Even if we assume that a constitutional violation exists, we would conclude that any instructional error was harmless beyond a reasonable doubt. Jury charges are to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. State v. Respass, supra, 256 Conn. 182. We have recognized that when a court gives a lengthy jury instruction, a slip of the tongue may occasionally occur. Opotzner v. Bass, 63 Conn. App. 555, 562, 777 A.2d 718, cert. denied, 257 Conn. 910, 782 A.2d 134 (2001), cert. denied, 259 Conn. 930, 793 A.2d 1086 (2002).

Our review of the record persuades us that the court's inaccurate instruction was a mere slip of the tongue.⁴ The court incorrectly instructed the jury that "the presumption of innocence alone isn't sufficient to acquit a defendant unless and until the State presents sufficient evidence during the trial to acquit a defendant—I'm sorry—to satisfy the jury beyond a reasonable doubt of the defendant's guilt." Viewed in isolation, that misstatement potentially is misleading. Viewed in the context of the overall charge, its harmlessness becomes apparent.

The jury was repeatedly instructed on the defendant's presumption of innocence and the state's burden of proof beyond a reasonable doubt. The court explained that "the defendant is presumed to be innocent unless and until he is proven guilty beyond a reasonable doubt." In addition, the jury was provided with written instructions. Those instructions stated that the...