State v. Porfil, AC 40305
| Court | Appellate Court of Connecticut |
| Writing for the Court | HARPER, J. |
| Citation | 191 Conn.App. 494,215 A.3d 161 |
| Parties | STATE of Connecticut v. Javier Valentin PORFIL |
| Docket Number | AC 40305 |
| Decision Date | 30 July 2019 |
191 Conn.App. 494
215 A.3d 161
STATE of Connecticut
v.
Javier Valentin PORFIL
AC 40305
Appellate Court of Connecticut.
Argued January 9, 2019
Officially released July 30, 2019
James B. Streeto, senior assistant public defender, with whom, on the brief, was, Samantha L. Oden, former certified legal intern, for the appellant (defendant).
Laurie N. Feldman, special deputy assistant state's attorney, with whom, on the brief, were Maureen Platt, state's attorney, and David A. Gulick, senior assistant state's attorney, for the appellee (state).
Prescott, Elgo and Harper, Js.
HARPER, J.
The defendant, Javier Valentin Porfil, appeals from the judgment of conviction, rendered after
a jury trial, of possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b), sale of narcotics within 1500 feet of a school in violation of General Statutes § 21a-278a (b), possession of drug paraphernalia in violation of General Statutes § 21a-267, and possession of narcotics in violation of
General Statutes § 21a-279 (a).1 The defendant claims on appeal that (1) the evidence was insufficient to establish that he was in constructive possession of narcotics,2 (2) the trial court deprived him of his constitutional right to present a defense by improperly excluding certain photographic evidence and (3) the trial court deprived him of his constitutional right to present a misidentification defense by preventing him from displaying a scar to the jury. We disagree and, accordingly, affirm the judgment of the trial court.
The jury reasonably could have found the following facts. On August 14, 2015, the Waterbury Police Department received an anonymous telephone call, stating that the defendant, whom the caller identified by first and last name, "had warrants" and was selling narcotics from the porch of 126–128 Walnut Street in Waterbury. Located at this address is a three-story multifamily house with an open front porch. The house has two front doors; the door on the left opens to a staircase leading to the second floor landing, and the door on the right opens to a first floor apartment. The house also has a back door that leads to the back door of the first floor apartment and a back staircase to the second
floor. The defendant did not live at this address, but he was there often to visit family members. After verifying that the defendant did indeed have active warrants, Officer Scott Phelan obtained a photograph of the defendant and headed to the house in an undercover vehicle. Meanwhile, several other uniformed officers waited in unmarked vehicles in the vicinity of the house, ready to "move in" on the defendant on Phelan's word.
Phelan proceeded to drive past the house where he observed the defendant sitting alone on the porch wearing shorts, a blue tank top, and a baseball hat. Phelan then sought out a location from which he could best observe the defendant. He eventually took up a position across the street in the area of the intersection of Walnut Street and Cossett Street, approximately 150 or 175 feet southwest of the porch. From this position, Phelan had a clear view of the porch through his binoculars and was able to observe that the left front door was open, revealing a "little bit" of the staircase. He did not observe anyone in the stairway. After watching the defendant for a time, Phelan observed a man approach the house and engage in a brief conversation with the defendant at the bottom of the porch stairs. The defendant then walked through the open doorway, reappeared after a time, descended the porch stairs, and "exchange[d] ... an item for an item" with the man. The man then left.
A few minutes later, Phelan saw a vehicle pull up and park on the corner of Catherine Avenue and Walnut Street and observed a man exit the vehicle, approach the house, and engage in a brief conversation with the defendant.3 The defendant again walked into the house through the open doorway, reappeared a few seconds later, and engaged in another item-for-item exchange. The man then walked back
to his car and drove away. No one else was seen with the defendant throughout
this transaction other than the person with whom he had made the exchange.
During this time, Phelan was in constant radio communication with the other officers positioned nearby and relayed to them that he had observed the defendant engage in two hand-to-hand exchanges. Meanwhile, the other officers waited to receive notification from Phelan that the defendant had stepped far enough away from the house to give the officers a good chance of apprehending him in case he tried to run back inside. After receiving such notification, Officer Jerome Touponse and two other officers ran to the front porch, and two officers went to the back of the house to secure the rear door.
Upon approaching the front of the house, Touponse and the other officers found the defendant alone on the porch, dressed in a blue tank top, shorts, and a baseball cap, with the left front door to the house open. The defendant then turned around and ran through the open left front doorway up the staircase and entered the second floor apartment.4 The officers gave chase. There was no one else in the stairwell as they pursued the defendant. The officers eventually made their way inside the second floor apartment, where the occupants pointed the police to the back door of the apartment. Touponse went to the back door, but the defendant was nowhere to be seen.
Meanwhile, the two officers tasked with covering the back of the house, Rose5 and David Shaban, positioned themselves on the back porch near the exterior rear door; Shaban stood directly in front of the door, with Rose a few steps behind him. After a short time, Shaban
observed the defendant, who was wearing a blue shirt and a baseball cap, begin to exit through the door, but, upon seeing the officers, he retreated back into the house and shut the door. When the officers were eventually able to get through the door, they found the back door to the first floor apartment was open. The front door to the apartment was also open, which indicated to Shaban that the defendant had run right through the apartment.
The police subsequently searched the entire house, but the defendant could not be located. In searching the house, however, they found a brown paper bag in plain view in the hallway extending to the right of the entrance to the second floor apartment. See footnote 4 of this opinion. The bag contained a digital scale, rubber bands, and 171 bags of heroin, packaged in bundles of ten glassine packets, tied with rubber bands, and packed in rice. The total street value of the heroin was between approximately $1000 and $1150.
Officer Phelan arrested the defendant several months later, in February, 2016. After Phelan explained to him that he was being arrested in connection with the events of August 14, 2015, the defendant stated that he was "sorry for running." The defendant subsequently was charged with, inter alia, possession of narcotics with intent to sell by a person who is not drug-dependent in violation of § 21a-278 (b), sale of narcotics within 1500 feet of a school in violation of § 21a-278a (b), possession of drug paraphernalia in violation of § 21a-267, and possession of narcotics in violation of § 21a-279 (a). A jury trial was
held beginning on October 11, 2016, at which the defendant testified in his own defense.6 On October 13, 2016, the jury returned a verdict of guilty on all counts, and the defendant was sentenced
on January 20, 2017.7 This appeal followed. Additional facts and procedural history will be set forth as necessary.
I
The defendant first claims that the evidence adduced at trial was insufficient to support his conviction because the state did not produce sufficient evidence to prove beyond a reasonable doubt that he had constructive possession of the narcotics recovered by the police from 126–128 Walnut Street. We disagree.
"In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt....
"We note that the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged...
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State v. Bermudez, AC 41864
...evidence merely because of an over-lap with the evidence previously admitted." (Internal quotation marks omitted.) State v. Porfil , 191 Conn. App. 494, 531, 215 A.3d 161, cert. granted on other grounds, 333 Conn. 923, 218 A.3d 67 (2019).195 Conn.App. 792 We first address the issue of relev......
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State v. Cusson, AC 43352
...198 Conn. App. 591, 603–604, 233 A.3d 1183, 269 A.3d 852 cert. denied, 335 Conn. 971, 240 A.3d 1055 (2020) ; see also State v. Porfil , 191 Conn. App. 494, 522, 215 A.3d 161 (2019), appeal dismissed, 338 Conn. 792, 259 A.3d 1127 (2021).Although the court permitted Lukman to invoke her fifth......
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State v. Gray, SC 20368
...evidence merely because of an overlap with the evidence previously admitted." (Internal quotation marks omitted.) State v. Porfil , 191 Conn. App. 494, 531, 215 A.3d 161 (2019), appeal dismissed, 338 Conn. 792, 259 A.3d 1127 (2021) ; cf. State v. Correia , supra, 33 Conn. App. at 463, 636 A......
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State v. Gray, SC 20368
...evidence merely because of an overlap with the evidence previously admitted." (Internal quotation marks omitted.) State v. Porfil, 191 Conn.App. 494, 531, 215 A.3d 161 (2019), appeal dismissed, 338 Conn. 792, 259 A.3d 1127 (2021); cf. State v. Correia, supra, 33 Conn.App. 463 (The trial cou......
-
State v. Bermudez, AC 41864
...evidence merely because of an over-lap with the evidence previously admitted." (Internal quotation marks omitted.) State v. Porfil , 191 Conn. App. 494, 531, 215 A.3d 161, cert. granted on other grounds, 333 Conn. 923, 218 A.3d 67 (2019).195 Conn.App. 792 We first address the issue of relev......
-
State v. Cusson, AC 43352
...198 Conn. App. 591, 603–604, 233 A.3d 1183, 269 A.3d 852 cert. denied, 335 Conn. 971, 240 A.3d 1055 (2020) ; see also State v. Porfil , 191 Conn. App. 494, 522, 215 A.3d 161 (2019), appeal dismissed, 338 Conn. 792, 259 A.3d 1127 (2021).Although the court permitted Lukman to invoke her fifth......
-
State v. Gray, SC 20368
...evidence merely because of an overlap with the evidence previously admitted." (Internal quotation marks omitted.) State v. Porfil , 191 Conn. App. 494, 531, 215 A.3d 161 (2019), appeal dismissed, 338 Conn. 792, 259 A.3d 1127 (2021) ; cf. State v. Correia , supra, 33 Conn. App. at 463, 636 A......
-
State v. Gray, SC 20368
...evidence merely because of an overlap with the evidence previously admitted." (Internal quotation marks omitted.) State v. Porfil, 191 Conn.App. 494, 531, 215 A.3d 161 (2019), appeal dismissed, 338 Conn. 792, 259 A.3d 1127 (2021); cf. State v. Correia, supra, 33 Conn.App. 463 (The trial cou......