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State v. Somerville

Supreme Court of Connecticut

April 3, 1990

STATE of Connecticut
v.
Robert SOMERVILLE.

Argued Feb. 7, 1990.

C. Robert Satti, Sr., State's Atty., with whom was Lawrence J. Tytla, Asst. State's Atty., for appellant-appellee (State).

Robert J. Sweeney, Sp. Public Defender, with whom, on the brief was Kathleen M. Harkins, for appellee-appellant (defendant).

Before PETERS, C.J., and SHEA, CALLAHAN, COVELLO and HULL, JJ.

[214 Conn. 379] PETERS, Chief Justice.

The principal issue in this case is whether General Statutes § 21a-278(a), [1] the dependency-producing drug statute applicable to persons who are not drug-dependent, when viewed either as a statute imposing an indeterminate sentence or as a statute imposing a definite sentence, requires the

Page 945

imposition of a maximum term of life imprisonment upon conviction. A jury found the defendant, Robert Somerville, guilty of possession with intent to sell cocaine in a free-base form by a person who is not drug-dependent in violation of § 21a-278(a). [2] The trial court thereupon sentenced him to a term of imprisonment of not less than thirteen nor more than twenty-six years. Having asserted at the sentencing hearing that the relevant [214 Conn. 380] statutory provisions required imposition of an indeterminate life sentence, the state, with the permission of the trial court, has appealed the trial court's refusal to impose the alleged mandatory maximum sentence. The defendant has also appealed, claiming that the trial court erred in refusing to render a judgment of acquittal because of evidentiary insufficiency and that improper remarks by the prosecutor during closing argument deprived the defendant of a fair trial. [3] Because the trial court failed to impose a definite sentence, we find error in part on the state's appeal. We find no error on the defendant's appeal. Accordingly, we remand the case to the trial court for resentencing.

The jury could reasonably have found the following facts. On March 9, 1988, the defendant and Christopher Bonapart were visiting Vanessa Marshall at her residence in New London. At that time, Marshall observed the defendant and Bonapart "doing business," i.e., exchanging money for small vials with blue caps that the defendant removed from a plastic bag he kept in his pocket. Later that evening, Joseph Wilson arrived at Marshall's residence, and subsequently got into an argument with the defendant, which escalated into a fight when Wilson threatened to call the police. As the defendant left the premises, he threw a clear plastic bag containing small vials with blue caps, identical to that he had kept in his pocket, into the rear yard of a neighboring house, near the stairs. The defendant then bent down near some garbage cans located at that same address.

Two police officers responded separately to Wilson's report of a disturbance in progress at the Marshall residence. Upon his arrival, the first officer observed Wilson moving around near the Marshall residence, and [214 Conn. 381] the defendant and Bonapart, standing in front of the neighboring house. As a physical confrontation seemed imminent, the officer restrained Wilson and then secured him in the back of his vehicle. The defendant was similarly restrained in a different vehicle by the second officer, after that officer had performed a pat down search of the defendant. Because of information elicited from the various conversations with those on the scene, the officers asked the occupants of the neighboring house about their knowledge of the sale of drugs in the area.

The two officers subsequently proceeded to the rear porch area adjacent to the neighboring house. Lifting up a garbage can, they found, underneath, a clear plastic bag containing $599 in cash and 69 small vials with blue caps that later tested positive for crack cocaine. A subsequent search of the defendant failed to reveal any drugs or money on his person. The officers did, however, find a large amount of money on Bonapart and a small purse containing seven vials of crack cocaine in the diaper of Marshall's one year old child. Marshall first claimed, but later denied, that the defendant was the source of this cocaine. The discovery of the vials led to the arrests of the defendant, Bonapart and Marshall. The police arrested Wilson for breach of the peace.

I

We consider first the state's claim that the trial court erred when it sentenced the defendant to a term of imprisonment of not less than thirteen nor more than twenty-six years, rather than to a maximum

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term of life imprisonment. The state maintains that the court correctly interpreted § 21a-278(a) as requiring the imposition of an indeterminate sentence, but that the statute mandates the enhanced penalty of a mandatory life sentence for those persons, trafficking in illegal drugs, who themselves are not drug-dependent.

[214 Conn. 382] During the pendency of the present appeals, we expressly held, in State v. Delossantos,211 Conn. 258, 284, 559 A.2d 164, cert. denied, --- U.S. ----, 110 S.Ct. 188, 107 L.Ed.2d 142 (1989), that General Statutes § 53a-35a, [4] which instituted a definite sentencing scheme for any felony committed on or after July 1, 1981, "implicitly repealed the indeterminate sentencing aspect of § 21a-278(a)." The state now urges us either to overturn State v. Delossantos, supra, or to hold, if a definite sentencing scheme is now mandated, that § 21a-278(a) ...


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