State v. Wade

• Decision Date: 25 March 2008
• Docket Number: No. 27397.,27397.
• Citation: 942 A.2d 1085,106 Conn.App. 467
• Parties: STATE of Connecticut v. Sidney WADE.
• Court: Connecticut Court of Appeals

942 A.2d 1085

106 Conn.App. 467

STATE of Connecticut v. Sidney WADE.

No. 27397.

Appellate Court of Connecticut.

Argued November 30, 2007.

Decided March 25, 2008.

Pamela S. Nagy, special public defender, for the appellant (defendant).

Michele C. Lukban, senior assistant state's attorney, with whom, on the brief, were Scott J. Murphy, state's attorney, and Paul N. Rotiroti, senior assistant state's attorney, for the appellee (state).

DiPENTIMA, GRUENDEL and LAVINE, Js.

LAVINE, J.

This case requires us to determine whether a layperson who provides illegally obtained prescription medications to a drug abuser who subsequently dies as a result of ingesting the medications is guilty of manslaughter in the first degree because he acted under circumstances evincing an extreme indifference to human life and engaged in conduct that created a grave risk of death to another person, thereby causing the death of another person. See General Statutes § 53a-55 (a)(3). As a matter of law, we conclude that, under the factual circumstances of this case, the elements of the statute have not been met but that the evidence was sufficient to support a conviction of manslaughter in the second degree.

The defendant, Sidney Wade, appeals from the judgment of conviction, rendered after a jury trial, of two counts of sale of narcotics by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b), two counts of possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b) and one count of manslaughter in the first degree in violation of § 53a-55 (a)(3). On appeal, the defendant claims that (1) as a matter of law, there was insufficient evidence by which the jury could have found him guilty of manslaughter in the first degree and (2) the trial court improperly charged the jury with respect to all of the charges against him. We agree with the first but not the second of the defendant's claims.

On the basis of the evidence presented, the jury reasonably could have found the following facts. At about 3 p.m. on April 14, 2003, Elio Colon found his twenty year old girlfriend, Rebecca J. Calverley, unresponsive on an air mattress in the basement of 35X Darling Street in Southington, an apartment Colon shared with his family. Medical assistance was summoned by the defendant, but the victim was pronounced dead at the hospital. According to deputy chief medical examiner Edward T. McDonough, the victim died from methadone and fentanyl toxicity,¹ as there was enough of each of the substances in the victim's body, alone or in combination, to cause her death.

The apartment was known as a place where individuals who abuse drugs went to use them. Marijuana, cocaine, angel dust, OxyContin and other pharmaceuticals were available there. When the police searched the premises, they found evidence of drugs and drug paraphernalia such as razor blades, pipes, marijuana roaches, cut straws and bags containing plant-like material.

On April 13, 2003, the day prior to the victim's death, Freeman Heath saw Colon and the defendant, who was twenty-seven years old at the time of the victim's death, standing in front of the apartment. At that time, the defendant was in possession of a bag containing Methodose² pills and fentanyl³ lollipops. The defendant described the lollipops as morphine lollipops and gave one to Heath. Heath knew that the lollipops contained a narcotic pain reliever that was used by cancer patients who have a tolerance for narcotics. He also knew that ingesting the lollipop could result in death. It took about thirty or forty minutes for Heath's lollipop to dissolve. As a result of ingesting the lollipop, Heath felt sedated, numb, euphoric and high. He felt the effects of the lollipop until approximately 1:30 or 2 a.m. the next day.

Later that day, Heath, Scott Finnemore and Galen Reynolds went to the apartment in search of a gasoline can because Reynolds' car had run out of gasoline. The victim was present in the residence and volunteered the use of a gasoline can that was at her home. After the victim, Heath, Finnemore and Reynolds had retrieved the gasoline can and gone to a gasoline station, they returned to the apartment. Heath and Finnemore encountered the defendant outside between 7:30 and 8 p.m. The defendant asked Finnemore if he was "straight"⁴ and then showed him a plastic bag containing pills. The defendant handed Finnemore a pill. Finnemore took the pill and saw the word Methadose printed on it. Each pill contained forty milligrams of methadone and was scored so that it could be divided into four pieces. Finnemore knew that Methadose was a strong medication and potentially dangerous. He also knew that it was a prescription medication and that it had been obtained illegally.

The group moved inside to the kitchen. The defendant asked Finnemore if he wanted another pill and brought out the bag containing them and offered them to Finnemore, Heath and the victim. The defendant took out a pill, broke it into four pieces and placed it on a counter. Finnemore testified that he and Heath each took one quarter of the pill and that the victim took the other half. According to Heath, however, the victim told him that she took the whole pill. Heath knew that the pills were strong medication and expressed concern to the victim. The victim assured Heath that she had taken the drug before and could handle it. Heath testified that he knew the victim was a cocaine user.

The group⁵ moved to the basement where everyone, except the victim,⁶ smoked marijuana. The defendant then offered them fentanyl lollipops, which were individually wrapped in a rectangular package bearing the brand name Actiq. Under the word Actiq, in parenthesis, appeared the words "oral transmucosal fentanyl citrate." The box was imprinted with "1600 mcg" and Rx only. The package contained numerous warnings, including "see insert for dosage and administration," "[o]nly for patients already taking opioids (narcotics) such as fentanyl or morphine," and, "WARNING: Keep out of reach of children." According to Shaquita Jones, one of the people in the apartment at the time, one week earlier, the defendant had offered her one of the lollipops and told her that it was not a regular lollipop but a medical one. Jones did not take a lollipop on that occasion, but the defendant did. He told Jones that the lollipop made one feel "real good," that one is not bothered by anything and "could get along with [one's] worst enemy."

The night of April 13, 2003, the defendant gave a lollipop to some of the people, including the victim, in the basement of the apartment. The victim had difficulty removing the wrapper and went upstairs with the defendant for about five minutes. When they returned to the basement, the victim had the lollipop in her mouth. The defendant appeared to have taken a bite of the victim's lollipop, which also was passed around for others to taste. Approximately half an hour later, the victim had finished her lollipop and asked the defendant for another one. The defendant gave the victim a second lollipop, which she ate. Later, the defendant gave Finnemore a lollipop, which Finnemore ate on his way home. Finnemore was aware of the potential for overdosing on drugs and had overdosed himself on methadone in 1999. The defendant also ate a lollipop while he was in the basement with the rest of the group.

The defendant left the apartment between 2 a.m. and 3 a.m. on April 14, 2003, and spent the rest of the night with the mother of his child, Kelly Bartosiewicz. He returned to the apartment at 12:30 p.m. that day and fell asleep. He was awakened by Colon's mother, who told him that the victim was not breathing. The defendant ran to the basement and saw Colon breathing into the victim's mouth. The defendant told Colon to move the victim upstairs and then ran outside to borrow a neighbor's telephone to call 911. When the police arrived at approximately 3 p.m., the victim was lying on the floor, just inside the door of the apartment and a neighbor was administering cardiopulmonary resuscitation. The police could not detect a pulse in the victim; she was not breathing and her skin was cold to the touch and blue. The victim was taken to Bradley Memorial Hospital where she was pronounced dead.

Officer Jeremy Busa of the Southington police department asked the defendant if he had seen the victim the day or night before. The defendant initially told Busa that he had not seen the victim. Ten minutes later, after Busa had talked to others in the apartment, he again asked the defendant if he had seen the victim the night before. The defendant then responded that he had been in the apartment for a short time the night before and that he did not know what time he had seen the victim. The defendant also told Busa that to his knowledge, the victim had not been under the influence of drugs or alcohol. Later that day, the defendant gave a statement to the police. When asked if there were any drugs in the apartment the night before, the defendant responded that only marijuana was present. When the police searched the basement, they found an Actiq wrapper, among other things.

Approximately one week later, Jones was at the apartment with Reynolds, Colon and the defendant. According to Jones, when the subject of the victim's death came up, the defendant told Reynolds to tell Heath to "keep his mouth shut" because "people know" where Heath lives. Also at about that time, the defendant told Kelly Ryzak, with whom he had an on and off relationship, that the victim had overdosed and died. A few weeks after that, the defendant told Ryzak that on the night the victim died, he had given drugs to her, that no one had seen him do so and that he did not give her enough for her to have died. When Bartosiewicz asked the defendant about the victim's death, he became upset and did not want to talk about the subject.

...