State v. Johnson

• Decision Date: 31 March 2015
• Docket Number: No. 19062.,19062.
• Citation: 316 Conn. 45,111 A.3d 436
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Jennifer JOHNSON.

316 Conn. 45

111 A.3d 436

STATE of Connecticut

v.Jennifer JOHNSON.

No. 19062.

Supreme Court of Connecticut.

Argued Oct. 29, 2014.

Decided March 31, 2015.

Annacarina Jacob, senior assistant public defender, for the appellant(defendant).

Melissa L. Streeto, senior assistant state's attorney, with whom, on the brief, were Kevin Lawlor, states attorney, and Paul O. Gaetano, supervisory assistant state's attorney, for the appellee(state).

ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH, McDONALD and ESPINOSA, Js.

Opinion

McDONALD, J.

The defendant, Jennifer Johnson, was convicted of possession of narcotics in violation of General Statutes § 21a–279 (a), conspiracy to possess narcotics in violation of General Statutes §§ 53a–48 (a)and21a–279 (a), conspiracy to possess narcotics with intent to sell in violation of General Statutes §§ 53a–48 (a)and21a–277 (a), possession of less than four ounces of marijuana in violation of General Statutes(Rev. to 2007)§ 21a–279 (c), and possession of drug paraphernalia in violation of General Statutes(Rev. to 2007)§ 21a–267 (a).The narcotics convictions related to oxycodone pills that the police had found on the defendant's girlfriend, Tamara Burbridge, to whom they had been prescribed, and in the apartment that the two women shared.On appeal to the Appellate Court, the defendant challenged her conviction on the three narcotics offenses.The Appellate Court reversed the conviction of conspiracy to possess narcotics on double jeopardy grounds as a lesser included offense of conspiracy to possess narcotics with intent to sell, but affirmed the judgment in all other respects.¹State v. Johnson, 137 Conn.App. 733, 766, 49 A.3d 1046(2012).In her certified appeal to this court, the defendant seeks reversal of her conviction on the two remaining narcotics charges on the basis of instructional error.Specifically, this court granted the defendant's petition for certification to appeal limited to the following questions: “1.Did the Appellate Court properly determine that the defendant implicitly waived her instructional claims as to nonexclusive possession and constructive possession even though she had filed a request to charge for the instructions?[and] 2.If the answer to the first question is in the negative, was the error harmless?”State v. Johnson,307 Conn. 927, 55 A.3d 568(2012).We conclude that the defendant did not engage in the type of affirmative conduct necessary to demonstrate that she effectively withdrew her request to charge.We further conclude that the instruction on possession was deficient, but that the impropriety was harmless beyond a reasonable doubt in light of the evidence and the state's theory of the case.Accordingly, we affirm the Appellate Court's judgment.

The record reveals the following undisputed facts and procedural history.²During the relevant period, the defendant lived with Burbridge in a one bedroom apartment on the second floor of a three-family house in Seymour.In March, 2008, Wendy Carroll, a recovering drug addict who had known the defendant for approximately twenty years, reported to the police that the defendant and Burbridge had been selling oxycodone pills from the apartment.Carroll stated that she had come forward because the two women had sold narcotics to Carroll's nephew.The police thereafter enlisted Carroll's help as a confidential informant to conduct controlled buys from the defendant and Burbridge.On three separate occasions—March 26, March 27 and April 24, 2008—Carroll reported that Burbridge had called to let her know that Burbridge had filled prescriptions and had oxycodone to sell.Thereafter, on each occasion, the police gave Carroll marked bills to make the buys, patted her down for contraband and money, observed Carroll enter the apartment building, and emerge shortly thereafter bearing two to four pills of Roxicodone (a brand name for the narcotic oxycodone) but none of the marked bills.Carroll reported that the defendant had exchanged the pills for the money in the two March buys, and that Burbridge had done so in the April buy.The police declined to act at that time to execute a search warrant at the apartment.They monitored the apartment building, however, and observed nonresidents entering and exiting from the entrance to the second and third floors of the building within minutes, activity that indicated to them that drug activity was taking place.

In June, 2008, Carroll reported to the police that she had confirmed with Burbridge that Burbridge had just refilled a prescription and had more oxycodone for sale.On the basis of that information and the previous transactions, the police obtained a search warrant for the apartment.When they arrived at the building, they encountered the defendant and Burbridge in the driveway and patted the women down before proceeding to the apartment.The police discovered on the defendant a device for smoking marijuana and a small sum of money, and on Burbridge they found a prescription bottle in her name containing forty-six Roxicodone pills that had been filled the previous day.In the apartment, the police discovered scores of empty, partially full and full prescription bottles for various narcotic and nonnarcotic substances, prescribed to either the defendant or Burbridge.The police seized from the living room coffee table fourteen prescription bottles, a small metal box containing two pills, and marijuana.The police also seized from the bedroom, in dresser drawers or on bedside tables, numerous other prescription pill bottles in either the defendant's or Burbridge's name.

Tests confirmed the presence of oxycodone, a highly addictive narcotic pain killer, in: (1) the pills presented to the police by Carroll from each of the controlled buys; (2) the two pills in the small metal box found on the living room coffee table; (3) pills from three prescription bottles in Burbridge's name found in the bedroom; and (4) pills from the prescription bottle in Burbridge's name found on her person.

The state thereafter charged the defendant in an eight count long form information.Counts one through six pertained to the June, 2008 search: possession of narcotics with intent to sell; conspiracy to possess narcotics with intent to sell; possession of narcotics; conspiracy to possess narcotics; possession of less than four ounces of marijuana; and possession of drug paraphernalia.Counts seven and eight pertained to the two March, 2008 controlled buys, both alleging sale of narcotics in violation of § 21a–277 (a).Although evidence was adduced that the prescriptions for Burbridge's oxycodone had been issued by more than one physician and had been filled at more than one pharmacy, there was no allegation that the prescriptions had been forged or illegally prescribed.

At trial, the defendant's theory was that Carroll had lied out of a motivation for revenge, that Carroll had produced pills that she had stolen from the apartment, and that the police had not sufficiently monitored Carroll during the controlled buys.The defendant testified that Carroll was a drug addict, that she previously had lived with the defendant, that Carroll had been evicted by the defendant due to Carroll's possession of crack cocaine, and that Carroll still had a key to the apartment.The defendant attempted to impeach Carroll's testimony and motive by eliciting testimony from the police that Carroll previously had worked for the police, that she had been paid for each pill that she had produced from the controlled buys, and that she only would have been paid if she succeeded in making the buys.The defendant also elicited an admission from Carroll that she had lied during her initial testimony about not having used drugs in recent years, but Carroll denied ever having been evicted by the defendant or having a key to the apartment.The defendant conceded that she had smoked marijuana to treat pain related to disabilities for which she receives Social Security benefits and that she had been prescribed medications for those disabilities.The defendant acknowledged that Burbridge had oxycodone in the apartment in March, April, and June, 2008, and that Burbridge regularly filled a prescription for oxycodone that was issued to treat pain.The defendant denied that she had ever sold oxycodone, and stated that, to her knowledge, Burbridge had not sold oxycodone to Carroll in March or April, 2008.

The jury found the defendant not guilty of the two charges relating to the controlled buys and the count of possession of narcotics with intent to sell relating to the evidence seized during the execution of the warrant.It found the defendant guilty on the remaining counts.The trial court rendered judgment in accordance with the verdict.

On appeal to the Appellate Court, the defendant challenged her narcotics conviction on evidentiary, constitutional and instructional grounds.State v. Johnson,supra, 137 Conn.App. at 736, 49 A.3d 1046.With respect to the instructional claim at issue in this certified appeal, the defendant contended that the trial court had failed to charge the jury properly on constructive and nonexclusive possession, for which the defendant had filed a request to charge.Id., at 758, 49 A.3d 1046.In response, the state contended that the defendant had negated her request to charge and implicitly waived any objection under State v. Kitchens,299 Conn. 447, 482–83, 10 A.3d 942(2011), because defense counsel had been given an opportunity to review and comment on the court's proposed and final drafts of the charge, had asked for changes and otherwise expressly indicated that he had no objection to the instruction, and had not objected to the charge actually given.State v. Johnson,supra, at 759, 49 A.3d 1046.

The Appellate Court agreed with the state and therefore declined to review the instructional claim.Id., at 760–63, 49 A.3d 1046.It held that “post-Kitchens, where defense counsel formally acquiesces to a...