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State v. Holley

Court of Appeals of Connecticut

July 11, 2017

STATE OF CONNECTICUT
v.
EVER LEE HOLLEY

          Argued February 6, 2017

         Appeal from Superior Court, judicial district of Middlesex, Diana, J.

         Procedural History

         Two part information charging the defendant, in the first part, with the crime of possession of narcotics with intent to sell, and, in the second part, with being a subsequent offender, brought to the Superior Court in the judicial district of Middlesex, where the court, Diana, J., denied the defendant's motion to suppress certain evidence; thereafter, the first part of the information was tried to the jury; verdict of guilty; subsequently, the second part of the information was tried to the jury; verdict of guilty; thereafter, the court granted the defendant's motion for a judgment of acquittal on the second part of the information and rendered judgment in accordance with the verdict as to the first part of the information, and the defendant appealed to this court. Appeal dismissed in part; affirmed.

          Jeremiah Donovan, for the appellant (defendant).

          Kathryn W. Bare, assistant state's attorney, with whom, on the brief, was Peter A. McShane, state's attorney, for the appellee (state).

          Alvord, Sheldon and Mullins, Js.

         SYLLABUS

         Convicted of the crime of possession of narcotics with intent to sell by a person who is not drug-dependent, the defendant appealed to this court, claiming that the trial court improperly instructed the jury on reasonable doubt. Specifically, he claimed that the court improperly instructed the jury that reasonable doubt ‘‘is such a doubt as, in serious affairs that concern you, you will heed; that is, such a doubt as would cause reasonable men and women to hesitate to act upon it in matters of importance.'' He also claimed that the trial court improperly denied his motion to suppress certain evidence that had been seized by police during a warrantless search of his residence. The defendant, who was on parole, claimed that a warrantless search of a parolee's residence that fails to comply with certain administrative directives of the Department of Correction is unconstitutional, even if the parolee had previously executed an agreement authorizing such searches as a condition of his parole. The trial court rejected that argument and also denied the motion to suppress on the ground that the defendant had orally consented to the search. Held:

         1. The defendant's claim that the phrase ‘‘upon it'' in the court's instruction concerning reasonable doubt effectively diluted the state's burden of proof was unavailing; our Supreme Court repeatedly has upheld the use of instructions employing the very language challenged by the defendant, and this court, as an intermediate appellate court, was bound by that controlling precedent.

         2. The defendant could not prevail on his claim that the jury was misled by the trial court's instructions regarding proof beyond a reasonable doubt, which was based on his claim that the trial court improperly orally instructed the jury that reasonable doubt is such doubt as ‘‘you will heed, '' rather than ‘‘you would heed, '' as was stated in the court's written instructions; the defendant having failed to object to the discrepancy between the written and oral instructions, his claim was unpreserved, and he failed to demonstrate the existence of a constitutional violation that deprived him of a fair trial pursuant to the third prong of the test set forth in State v. Golding (231 Conn. 233), as there was no reasonable possibility that the jury was confused by the court's use of ‘‘will'' instead of ‘‘would'' when the jury had before it the written instructions, and both sets of charges adequately explained the principles governing burden of proof, the presumption of innocence and reasonable doubt.

         3. This court dismissed as moot the defendant's claim that the trial court improperly denied his motion to suppress evidence that was seized in a warrantless search of his residence; there was no practical relief that could be afforded to the defendant with respect to his claim that his constitutional rights were violated when the police did not follow certain administrative regulations concerning searches of a parolee's residence, as the trial court also determined that the defendant had orally consented to the search of his residence, which was an independent basis that supported the trial court's decision to deny the motion to suppress that was not challenged by the defendant on appeal.

          OPINION

          MULLINS, J.

          The defendant, Ever Lee[1] Holley, appeals from the judgment of conviction, rendered after a jury trial, of possession of a narcotic substance with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b). On appeal, the defendant claims that the trial court improperly (1) instructed the jury on reasonable doubt and (2) denied his motion to suppress evidence. We reject both of these claims and, therefore, affirm the judgment of the trial court.

         The jury reasonably could have found the following facts. On December 11, 2012, the narcotics unit of the Middletown Police Department executed a search and seizure warrant on the residence of Rachel Sweeney at 165 South Main Street in Middletown. Sweeney was arrested on drug possession charges as a result of the search.

         At the time the warrant was executed, the defendant and another person were sitting in a car parked in the area behind 165 South Main Street. One officer detained the defendant while others searched Sweeney's residence. After police completed the search, David Skarzynski, a parole officer who had assisted the Middletown officers in executing the warrant, was alerted to the defendant's presence outside the residence. Skarzynski recognized the defendant as a parolee who previously had been under his supervision. Skarzynski asked the defendant for permission to search his residence at 29 Avon Court in Middletown. The defendant consented.

         Skarzynski and officers with the narcotics unit traveled to the defendant's residence. Upon conducting a search of the defendant's bedroom, the officers recovered, among other items, 16.529 grams of crack cocaine from a locked safe located underneath the defendant's bed.

         The defendant was arrested and charged with possession of a narcotic substance with the intent to sell in violation of § 21a-278 (b). After a jury found the defendant guilty of that offense, [2] the court sentenced him to ten years incarceration, five years of which were mandatory, followed by eight years of special parole. This appeal followed.

         I

         REASONABLE DOUBT INSTRUCTION

         The defendant's first claim is that part of the court's instruction on reasonable doubt was improper. Specifically, he argues that the court erred in describing reasonable doubt as follows: ‘‘[Reasonable doubt] is such a doubt as, in serious affairs that concern you, you will heed; that is, such a doubt as would cause reasonable men and women to hesitate to act upon it in matters of importance.'' The defendant asserts that the language ...


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