State v. Jordan

• Decision Date: 14 October 2014
• Docket Number: No. 19135.,19135.
• Citation: 101 A.3d 179,314 Conn. 89
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Victor JORDAN, Sr.

314 Conn. 89

101 A.3d 179

STATE of Connecticut

v.Victor JORDAN, Sr.

No. 19135.

Supreme Court of Connecticut.

Argued April 21, 2014.

Decided Oct. 14, 2014.

Pamela S. Nagy, New Haven, assigned counsel, for the appellant (defendant).

Robin S. Schwartz, special deputy assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and Terence Mariani, senior assistant state's attorney, for the appellee (state).

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

Opinion

McDONALD, J.

The defendant, Victor Jordan, Sr., was convicted, after a jury trial, of possession of an amphetamine-type substance with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a–278 (b), and possession of an amphetamine-type substance with intent to sell within 1500 feet of a school in violation of General Statutes § 21a–278a (b), on the basis of evidence seized from his person and a closet in which he had been hiding pursuant to a search incident to his arrest.¹ On appeal,² the defendant contends that: (1) the trial court improperly denied his motion to suppress drugs seized from the closet because the closet was not within his immediate control; (2) the evidence was insufficient to support either conviction because it did not establish his knowledge and intent; and (3) he is entitled to a new trial due to improper comments made during the prosecutor's closing argument. We conclude that, even if we were to assume that the trial court improperly denied the motion to suppress, any error would be harmless beyond a reasonable doubt in light of the validly seized evidence from the defendant's person. Although we also conclude that this evidence, in and of itself, is sufficient to sustain the defendant's conviction for possession with intent to sell, we agree that the evidence is insufficient to demonstrate the defendant's intent to sell within a school zone. Finally, we are not persuaded that any prosecutorial impropriety requires a new trial. Therefore, we affirm in part and reverse in part the judgment.

The jury reasonably could have found the following facts. On April 16, 2008, at approximately 7:40 a.m., officers assigned to a multijurisdictional fugitive task force arrived at 555 Congress Avenue in Waterbury looking for the defendant with the intent to arrest him on multiple outstanding felony warrants. That address is within 1500 feet of a public elementary school. The task force included Lieutenant Patrick Deely of the Middlebury Police Department, Sergeant Michael Ponzillo and Detective Orlando Rivera of the Waterbury Police Department, and Sergeant Gerald Pinto of the Stratford Police Department.

When they arrived, the officers approached the rear, first floor apartment door of the two-family home and entered an enclosed porch. The door to the apartment was open and they began shouting “police” to announce their presence. They were then met by the homeowner, Richard Colangelo, Sr., to whom the officers showed a photograph of the defendant. Colangelo acknowledged that the defendant was in the home and directed them through the kitchen to a small back bedroom. When the officers entered the bedroom, they saw a younger man in the room, who they later learned was the homeowner's son, Richard Colangelo, Jr. (Richard). After police asked Richard if the defendant was present, he pointed toward the bedroom closet. The officers asked Richard to leave the room and then drew their weapons, shouting for the defendant to come out of the closet with his hands up. When the defendant did not comply, Pinto and Rivera entered the closet to extricate him. After a brief struggle, the two officers pulled the defendant out of the closet into the main area of the bedroom, at which time the other officers held him facedown on the floor and handcuffed him, with his hands behind his back. This process, from the time the officers entered the bedroom to the time they subdued the defendant on the floor, took one minute or less.

Once the defendant was removed from the closet, Ponzillo searched him and found a small, clear plastic bag containing thirty ecstasy³ pills in his pocket. With the defendant still prone on the floor, two officers searched the closet to look for a weapon. The closet was dark and messy, and the officers needed flashlights to conduct the search. After looking for five to ten minutes, they recovered no weapon but discovered a bag near where the defendant had been hiding containing three plastic bags of ecstasy pills. One bag contained seven pills, one bag contained twenty pills, and the third bag contained 132 pills. The pills retrieved from the closet, like the pills found in the defendant's pocket, all had the letter “G” imprinted on one side and the silhouette of a woman imprinted on the other side.

The record reveals the following additional procedural history. Prior to trial, the defendant filed a motion to suppress the drugs found both in the closet and on his person. The trial court held an evidentiary hearing, at which only the state presented witnesses. The court thereafter denied the motion to suppress, concluding that the searches were constitutionally permissible. With respect to the search of the closet, the trial court found that the defendant had been lying a “short distance” from the closet at the time the police searched therein.⁴ The court further found that Pinto and Rivera had gone into the closet to look for a weapon after the defendant had been handcuffed.⁵ Nonetheless, the court found that, “it [was] not inconceivable that [the defendant] may have grabbed for a gun” and therefore the officers were justified in searching the immediate surrounding area for weapons. The trial court held that the search of the closet was a lawful search incident to arrest, relying in part on State v. Fletcher, 63 Conn.App. 476, 777 A.2d 691, cert. denied, 257 Conn. 902, 776 A.2d 1152 (2001), a case in which the defendant also had been handcuffed during a search of a closet that was deemed a valid search incident to an arrest.⁶

Following trial, the jury returned a verdict of guilty of both counts alleging possession of an amphetamine-type substance with intent to sell and possession of an amphetamine-type substance with intent to sell within 1500 feet of a school. See footnote 1 of this opinion. The trial court thereafter rendered judgment in accordance with the verdict and imposed a total effective sentence of eighteen years imprisonment.⁷ This appeal followed.

I

We begin with the defendant's challenge to the trial court's decision denying his motion to suppress. The defendant has abandoned his challenge to the seizure of the pills from his person, limiting his claim on appeal to the pills seized from the closet. The defendant claims that the search of the closet was unlawful under the fourth and fourteenth amendments to the United States constitution and that, because the drugs found in the closet were the fruit of an illegal search, he is entitled to a new trial. Relying on Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969),⁸ and Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009),⁹ the defendant argues that a search incident to arrest is invalid if the search extends beyond the area “under [an arrestee's] immediate control”;¹⁰ (internal quotation marks omitted) Chimel v. California, supra, at 764, 89 S.Ct. 2034 ; and that officers may not search “[i]f there is no possibility that an arrestee could reach” that area. Arizona v. Gant, supra, at 339, 129 S.Ct. 1710. The defendant argues that Gant clarified Chimel to set a standard under which a search incident to an arrest may take place only when the arrestee is unsecured and within reaching distance of the area searched. The defendant argues that this standard was not satisfied in the present case because: (1) he was lying facedown on the floor, facing away from the closet, with his hands handcuffed behind his back when the officers searched the closet; (2) there were five or six officers, some armed, surrounding him in the small bedroom; (3) he was approximately eight feet away from the deepest part of the closet where the drugs were found; and (4) the closet was dark, messy and awkwardly shaped. The defendant further contends that the police officers' testimony indicated that the search was not for the officers' protection in that they admitted to searching for a gun for five to ten minutes after the defendant was secured and that such a weapon search was routine procedure. Finally, the defendant argues that State v. Fletcher, supra, 63 Conn.App. at 476, 777 A.2d 691 ; see footnote 6 of this opinion; on which the trial court had relied, is factually distinguishable or, in the alternative, should be overruled in light of Gant.

In response, the state argues that, under State v. Fletcher, supra, 63 Conn.App. at 476, 777 A.2d 691, the area within the defendant's immediate control includes a closet within four feet of a handcuffed defendant. The state therefore argues that the search of the closet in the present case “fell squarely within the authority of Fletcher and the trial court properly relied upon it in denying the defendant's motion to suppress.” The state further argues that the defendant's reliance on Gant as rendering Fletcher no longer good law is misplaced. The state acknowledges the holding in Gant that a search is invalid if conducted after the arrestee has been secured and cannot access the area searched, but questions whether Gant extends beyond automobile searches. It contends, however, that even if it does, Gant is factually distinguishable because there was no threat to officer safety in Gant, as there was in the present case.¹¹ In the alternative, the state argues that any error in denying the motion to suppress was harmless beyond a reasonable doubt because the jury had before it credible evidence that the defendant possessed and intended to sell the...