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State v. Stephenson

Court of Appeals of Connecticut

May 1, 2018

STATE OF CONNECTICUT
v.
LARRYLAMAR STEPHENSON

          Argued February 5, 2018

         Procedural History

         Substitute information, in the first case, charging the defendant with the crime of failure to appear in the first degree, and substitute information in the second and third cases, charging the defendant with the crimes of possession of narcotics, engaging police in a motor vehicle pursuit, falsely reporting an incident in the second degree and interfering with an officer, brought to the Superior Court in the judicial district of Stamford-Norwalk, where the cases were consolidated and tried to the jury before Colin, J.; thereafter, the court, White, J., denied the defendant's motion for a continuance; verdicts of guilty, subsequently, the court, Colin, J., rendered judgments in accordance with the verdicts, from which the defendant appealed to this court. Affirmed.

          James P. Sexton, assigned counsel, with whom were Emily Graner Sexton, assigned counsel, and, on the brief, Marina L. Green, assigned counsel, and Megan L. Wade, assigned counsel, for the appellant (defendant).

          Nancy L. Walker, assistant state's attorney, with whom, on the brief, were Richard J. Colangelo, Jr., state's attorney, and Paul J. Ferencek, supervisory assistant state's attorney, for the appellee (state).

          Sheldon, Bright and Bear, Js.

          OPINION

          SHELDON, J.

         The defendant, Larry Lamar Stephen-son, appeals from the judgments of conviction, rendered after a jury trial, on charges of failure to appear in the first degree in violation of General Statutes § 53a-172 (a) (1); possession of narcotics in violation of General Statutes § 21a-279 (a); engaging police in a motor vehicle pursuit in violation of General Statutes § 14-223 (b); falsely reporting an incident in the second degree in violation of General Statutes § 53a-180c (a) (1); and interfering with an officer in violation of General Statutes § 53a-167a (a). On appeal, the defendant claims that (1) the trial court abused its discretion and deprived him of his sixth amendment right to counsel by denying his request for a recess to discuss with his attorney the terms of a plea deal offered by the court; and (2) the evidence adduced at trial was insufficient to sustain his conviction of possession of narcotics. We affirm the judgments of the trial court.

         The jury reasonably could have found the following facts. At approximately 10:15 p.m. on the night of October 9, 2013, Sergeant Richard Gasparino, a member of the narcotics and organized crime unit of the Stamford Police Department, was patrolling the east side of Stamford with three fellow officers in an unmarked Chevrolet Malibu. Gasparino pulled into the parking lot of 1 Lawn Avenue, a multiunit public housing complex, which is known as a high crime area due to narcotics activity and thus is regularly patrolled. Upon entering the parking lot, Gasparino observed a silver Jeep Liberty bearing license plate number 388 ZTO, [1] idling with its lights off parked next to a dumpster, with a black male sitting in the driver's seat. As Gasparino drove past the Jeep Liberty, it sped out of the lot ‘‘at a fairly high rate of speed.'' Finding that suspicious, Gasparino turned his vehicle around and followed the Jeep Liberty. After the Jeep Liberty exited the parking lot onto Lawn Avenue, it accelerated. One of the other officers in the Malibu then put a flashing emergency light on the top of the vehicle and activated it as Gasparino pursued and attempted to stop the Jeep Liberty. Gasparino notified his dispatcher that he was attempting to stop a fleeing vehicle, as he followed it onto Hamilton Avenue. Gasparino followed the Jeep Liberty onto Glenbrook Road, at which time Officer Wilgins Altera, driving a marked cruiser, took over the lead in the pursuit. Altera, in addition to other officers who had joined in the pursuit, followed the Jeep Liberty in their marked vehicles with their lights and sirens on. The Jeep Liberty proceeded erratically through residential areas and into downtown Stamford, trying to elude the pursuing vehicles by weaving in and out between other moving vehicles, crossing over the yellow line, and disregarding traffic signals and stop signs. The Jeep Liberty was then pursued onto Interstate 95, northbound, on which it travelled to the next exit, exit nine, where it exited onto Seaside Avenue. There it turned left onto East Main Street and travelled approximately fifty yards before turning back onto Interstate 95, in the southbound lanes, where it encountered ‘‘gridlock'' traffic and was forced to come to a ‘‘[d]ead stop.'' When this occurred, Altera and Gasparino also stopped their vehicles, then Altera exited his vehicle, ‘‘drew [his] sidearm and ran up around the front of [his] vehicle and to the front passenger side of the suspect's vehicle.'' While standing at the passenger's side window of the Jeep Liberty, Altera ordered the operator to turn off the engine and exit the vehicle. Although Altera repeated that order several times, the operator did not acknowledge Altera and instead continued looking forward for about thirty seconds to one minute. The operator finally turned his head to look directly at Altera, ‘‘then proceed[ed] forward, kind of jolted the car a little bit forward making contact with a vehicle.'' The Jeep Liberty finally ‘‘inch[ed] its way around traffic, and then started heading . . . southbound [once again] on [Interstate] 95.'' Altera was unable to get back to his car in time to follow the Jeep Liberty, which had made its way into the breakdown lane, so he crossed through the traffic on foot to get a view of where it was heading. Altera lost sight of the vehicle as it appeared to be ‘‘heading off of exit eight.'' Because of the heavily congested traffic, neither Altera nor Gasparino was able to pursue the Jeep Liberty, so Gasparino ‘‘put out over [the police] dispatch . . . for surrounding units to start looking for the vehicle . . . .'' Surmising that the Jeep Liberty likely exited the interstate at exit eight, Gasparino, too, started looking for the vehicle in that vicinity, ‘‘[b]asically . . . the downtown area.''

         Shortly thereafter, Gasparino learned that the Jeep Liberty had been found abandoned by Officer Jerry Junes at the Marriott Hotel in downtown Stamford, approximately two hundred yards from exit eight. Junes spoke to a patron at the hotel bar, who stated that he had seen a man exit the Jeep Liberty and run away. He described that man as a heavyset black male, five foot, nine inches, to six feet tall, wearing a green or dark baseball cap, a gray sweatshirt and jeans. Junes reported that description to his dispatcher.

         Because the vehicle was found unattended, it had to be inventoried and towed. Gasparino and Officer Louis Vidal seized several items from the vehicle. On the driver's seat of the Jeep Liberty, Gasparino found a driver's license belonging to the defendant. In the driver's door compartment, Vidal discovered ‘‘a clear plastic wrap which contained a white rock-like substance, '' that appeared, and was later confirmed, to be crack cocaine. The officers also found three items of mail in the center console-two letters and one bank statement-which were addressed to the defendant. Also in the center console of the vehicle, the officers found a bottle of oxycodone, prescribed to Nicole Cyboski, who was a known drug user with a criminal record.

         While the officers were searching the vehicle, they received a notification from their dispatcher that ‘‘there was a party on the line that was reporting that vehicle stolen, the one that we were chasing.'' The caller identified himself, by name, as the defendant, and stated that he had parked his Jeep Liberty near Lawn Avenue in Stamford, with the keys in it, and crossed the street to use the bathroom at Dunkin Donuts. When he returned to the vehicle, he reported, it was gone. He indicated that he was reporting the theft ‘‘to cover my footsteps so that [it] could be shown that I wasn't the one driving the car.'' The defendant claimed to be calling from Nor-walk, but the call was traced to a location in Stamford within a two block radius of the intersection of Orange and Lockwood, just one block away from 1 Lawn Avenue.

         With that information, Gasparino and his three fellow officers drove to the intersection of Lockwood and Orange to look for the caller, who they considered a possible suspect. When they entered the parking lot, they observed two or three people standing in the back staircase of a housing complex, an area where people often hung out, that was illuminated with ‘‘flood lighting.'' The officers saw someone in that location who matched the description of their suspect-a black male wearing a gray sweatshirt and jeans. They believed that that man, who was using a cell phone, looked like and met the physical description of the defendant, as shown on the driver's license found in the Jeep Liberty. Gasparino also testified that he knew the defendant from dealing with him in the past. On that basis, they pulled up to the staircase and stopped their car. ‘‘The minute [their] car doors open[ed], that individual took off running northbound through the complex.'' He was wearing a baggy gray sweatshirt and was running ‘‘at a high rate of speed.'' The four officers chased the suspect on foot, until he jumped down a retaining wall and ran down the street, where they lost him.

         The officers then set up a perimeter around the area, as additional officers responded and joined in the search. Approximately three minutes later, Sergeant Sean McGowan saw an individual running across East Main Street. McGowan and other officers pursued and apprehended the defendant in the parking lot of Sergio's Pizza, near the intersection of Lawn Avenue and East Main Street. Sergio's Pizza is next to Dunkin Donuts, across the street from 1 Lawn Avenue.

         The defendant was arrested on charges of failure to appear in the first degree in violation of § 53a-172 (a) (1);[2] possession of narcotics in violation of § 21a-279 (a); engaging police in a motor vehicle pursuit in violation of § 14-223 (b); falsely reporting an incident in the second degree in violation of § 53a-180c (a) (1); and interfering with an officer in violation of § 53a-167a (a). After he was found guilty by a jury on those charges, the court imposed a total effective sentence of five years incarceration, consecutive to a sentence that he was then serving, [3] followed by five years of special parole. This appeal followed.

         I

         The defendant first claims that the trial court abused its discretion and violated his constitutional right to counsel by denying his request for a recess to discuss with his attorney the terms of a plea deal offered by the court. We are not persuaded.

         The following procedural history is relevant to our discussion of this claim. On the morning of July 21, 2014, just before the start of evidence at trial, the court, White, J., had a discussion with counsel on the record regarding various plea agreements that had been offered to, but rejected by, the defendant.[4] Following a lengthy recitation by counsel as to the various pleas that the defendant had considered, the court stated, inter alia: ‘‘The only plea I'd accept would be an open plea, with no recommendation at all. And the court will review a [presentence investigation report], hear the arguments and make a decision.'' When asked if he understood what that meant, the defendant said that he did, but that he did not want to accept that offer, that he did not want to take any offer, and that he had spoken with his attorney and was ready to proceed to trial. The trial thus proceeded.

         The state began the presentation of its evidence against the defendant on July 21, 2014, before Judge Colin. On July 23, 2014, at some point prior to the luncheon recess, the court adjourned for the day, planning to reconvene the next morning. Just before the court adjourned, counsel for the defendant asked the court's permission to remain in the courtroom so that the defendant's mother could ‘‘just have two seconds to communicate with him'' and ‘‘have a quick colloquy about a potential settlement.'' The court left that decision to the discretion of the judicial marshals, then adjourned for the day. The record does not reveal whether the requested colloquy took place, or, if it did, how long it lasted.

         The next morning, Judge White took the bench to discuss plea negotiations once again. The court then indicated that it had met with the prosecutor and defense counsel the preceding afternoon, at which time the prosecutor had offered to drop the narcotics charge and the interfering with an officer charge, and to recommend a sentence of five years incarceration on the remaining three charges, to be served concurrently with the sentence the defendant was then serving. The court told counsel that it would consider the state's offer overnight. The next morning, July 24, 2014, the court met with counsel in chambers and informed them that it would accept the state's recommendation of five years, but only as a floor, and that Judge Colin would do the actual sentencing and could impose a sentence of up to seven years consecutive to the sentence that the defendant was then serving. The state made it clear that it was looking for a sentence of no more than five years incarceration, to be served concurrently with the sentence that the defendant was already serving. The defendant and his attorney asked for more time for him to consider the court's offer, his attorney indicating that they had only had about seven uninterrupted minutes between the in-chambers conference with Judge White and the calling of the defendant's case, to discuss the court's offer. The defendant asked to come back the next day or the following week to ‘‘make a decision . . . .'' His attorney told him to ask for a ten minute recess, but the defendant indicated to his attorney that the court had already told him no. The court responded that it had already passed the defendant's case to give him time to consider the offer. The court explained that it was not going to entertain further discussions because they were in the midst of trial and the jury was waiting. The court then recessed to await Judge Colin for trial to resume.[5]

         The defendant claims that the trial court abused its discretion and violated his constitutional right to counsel by not granting his request for a ten minute recess to further discuss with counsel the plea offered by the court. The sixth amendment provides that in all criminal prosecutions, the accused shall enjoy the right to the effective assistance of counsel. U.S. Const., amend. VI. This right is incorporated against the states through the due process clause of the fourteenth amendment. See U.S. Const., amend. XIV, § 1; Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). ‘‘Although the defendant couches his claim on appeal in terms of a denial of his constitutional right [to counsel], we will review the trial court's refusal to grant a continuance for an abuse of discretion. Even if the denial of a motion for a continuance . . . can be directly linked to a claim of a denial of a specific constitutional right, if the reasons given for the continuance do not support any interference with the specific constitutional right, the court's analysis will revolve around whether the trial court abused its discretion. . . . In other words, the constitutional right alleged to have been violated must be shown, not merely alleged.'' (Citation omitted; internal quotation marks omitted.) State v. Godbolt, 161 Conn.App. 367, 374 n.4, 127 A.3d 1139 (2015), cert. denied, 320 Conn. 931, 134 A.3d 621 (2016). Furthermore, ‘‘broad discretion must be granted trial courts on matters of continuances; only an unreasoning and arbitrary insistence upon expeditiousness in the face of a justifiable request for delay violates the right to the assistance of counsel.'' (Internal quotation marks omitted.) Morris v. Slappy, 461 U.S. 1, 11-12, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983).

         ‘‘The determination of whether to grant a request for a continuance is within the discretion of the trial court, and will not be disturbed on appeal absent an abuse of discretion. . . .

         ‘‘A reviewing court is bound by the principle that [e]very reasonable presumption in favor of the proper exercise of the trial court's discretion will be made. . . . To prove an abuse of discretion, an appellant must show that the trial court's denial of a request for a continuance was arbitrary. . . . There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied. . . . In the event that the trial court acted unreasonably in denying a continuance, the reviewing court must also engage in harmless error analysis. . . .

         ‘‘Among the factors that may enter into the court's exercise of discretion in considering a request for a continuance are the timeliness of the request for continuance; the likely length of the delay; the age and complexity of the case; the granting of other continuances in the past; the impact of delay on the litigants, witnesses, opposing counsel and the court; the perceived legitimacy of the reasons proffered in support of the request; the defendant's personal responsibility for the timing of the request; [and] the likelihood that the denial would substantially impair the defendant's ability to defend himself . . . . We are especially hesitant to find an abuse of discretion where the court has denied a motion for continuance made on the day of the trial. . . .

         ‘‘Lastly, we emphasize that an appellate court should limit its assessment of the reasonableness of the trial court's exercise of its discretion to a consideration of those factors, on the record, that were presented to the trial court, or of which that court was aware, at the time of its ruling on the motion for a continuance.'' (Internal quotation marks omitted.) State v. Godbolt, supra, 161 Conn.App. 374-75. ‘‘The trial court has the responsibility to avoid unnecessary interruptions, to maintain the orderly procedure of the court docket, and to prevent any interference with the fair administration of justice. . . . Once a trial has begun . . . a defendant's right to due process . . . [does not entitle] him to a continuance upon demand.'' (Internal quotation marks omitted.) Id., 376.

         Our review of the record reveals that the defendant was afforded ample time to consider various plea offers extended to him throughout the pendency of his case, and, in fact, while his jury trial was underway. The record reflects that the defendant had considered multiple offers extended by the state, and had expressed that he did not want to accept any plea at all, as of the morning of the commencement of the presentation of evidence. The court, at the request of the state, canvassed the defendant thoroughly that morning. The record further reflects that the court clearly stated to the defendant before the start of evidence that the only offer the court would entertain was an open plea with no recommendation. The record also reflects that the defendant was offered ample time to consider the offers extended on July 23 and July 24, 2014. Although the record does not reflect at what time counsel met with Judge White in his chambers on the morning of July 24, 2014, or at what time Judge White addressed the parties from the bench, it does reveal that the defendant's case was ‘‘passed'' to afford him time to discuss the court's offer with his attorney. The court noted that it was not going to entertain further discussions, referring to the extensive discussions that already had taken place, a clear indication that the court did not regard the defendant's request for additional time as legitimate. The court's view that further time was unnecessary is particularly understandable in that the court's offer basically left the defendant at risk to receive the maximum sentence permissible for the charges to which he would plead guilty. It was thus substantially similar to the open plea offer the court told the defendant it would accept before evidence started-an offer the defendant rejected. Although defense counsel suggested a ten minute recess, the defendant himself sought a longer period of time, either a full day or until the next week, to consider the court's offer. Moreover, Judge White did, in fact, recess, so that Judge Colin could take the bench and resume the jury trial. There is nothing in the record to suggest that the defendant was precluded from speaking to his attorney during that recess, the duration of which is also missing from the record.[6]

         On the basis of the foregoing, we conclude that the trial court properly considered the legitimacy of the defendant's request for a recess to further consider its plea offer, the timing of that request for a continuance, and the impact on the litigants and, in particular, the jury, which was waiting to resume hearing evidence when the defendant made his request. Because the court's denial of the defendant's request was neither unreasonable nor arbitrary, we cannot conclude that the court abused its discretion in so ruling.[7]

         II

         The defendant also claims that the evidence presented at trial was insufficient to sustain his conviction of possession of narcotics because the state failed to prove that he had actual or constructive possession of the narcotics at issue. We disagree.

         ‘‘In reviewing the sufficiency of the evidence to sup- port 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 offense, [but that] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. . . . If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt. . . .

         ‘‘Moreover, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. . . . It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. . . . In evaluating evidence, the [finder] of fact is not required to accept as dispositive those inferences that are consistent with the defendant's innocence. . . . The [finder of fact] may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . .

         ‘‘Finally, [a]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [finder of fact], would have resulted in an acquittal. . . . On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [finder of fact's] verdict of guilty.'' (Internal quotation marks omitted.) State v. Crespo, 317 Conn. 1, 16-17, 115 A.3d 447 (2015).

         ‘‘In order to prove that a defendant is guilty of possession of narcotics . . . the state must prove beyond a reasonable doubt that the defendant had either actual or constructive possession of a narcotic substance. . . . Actual possession requires the defendant to have had direct physical contact with the narcotics. . . . Constructive possession, on the other hand, is possession without direct physical contact. . . . To prove either actual or constructive possession of a narcotic substance, the state must establish beyond a reasonable doubt that the accused knew of the character of the drug and its presence, and exercised dominion and control over it. . . .

         ‘‘Where . . . the [narcotic substance] was not found on the defendant's person, the state must proceed on the theory of constructive possession . . . . One factor that may be considered in determining whether a defendant is in constructive possession of narcotics is whether he is in possession of the premises where the narcotics are found. . . . Where the defendant is not in exclusive possession of the premises where the narcotics are found, it may not be inferred that [the defendant] knew of the presence of the narcotics and had control of them, unless there are other incriminating statements or circumstances tending to buttress such an inference. . . . In determining whether the attendant incriminating circumstances support an inference of constructive possession, the proper focus is on the relationship between the defendant and the contraband found in the [vehicle] rather than on the relationship between the defendant and the [vehicle] itself.'' (Citation omitted; internal quotation marks omitted.) State v. Nova, 161 Conn.App. 708, 718-19, 129 A.3d 146 (2015).

         Here, because the narcotics were not found on the defendant's person, the state was required to prove that he possessed them constructively. Although the defendant was not in the Jeep Liberty when it was recovered by the officers, the state presented circumstantial evidence from which the jury reasonably could have inferred that he had exclusive control of the Jeep just minutes before he was apprehended. The defendant was apprehended only a few blocks from the Marriott Hotel at which the vehicle was found, which is also within a few blocks of 1 Lawn Avenue, where Gasparino and his fellow officers first encountered the vehicle. Altera testified that he saw the operator of the Jeep Liberty when he drew his gun and approached the vehicle, ordering the operator to exit the vehicle several times, until the operator turned toward him and then drove away. Even though the defendant was not wearing a gray sweatshirt when he was apprehended, Altera identified him as the man he had seen driving the Jeep Liberty minutes earlier. Altera testified that the entire chase-from the time that he got involved in the pursuit of the Jeep Liberty to the time that the defendant was apprehended-took approximately fifteen to twenty minutes. Additionally, the defendant's mother, Chiquita Stephenson, testified that she owns a rental property in Stamford that the defendant manages for her and that he uses her Jeep Liberty when doing so. Not only was the defendant's driver's license found on the driver's seat in the vehicle, but several pieces of mail addressed to him were found in the center console, and the defendant himself admitted that he had been driving the Jeep that evening, just minutes before he called 911 and reported that it had been stolen. The jury thus reasonably could have found that the defendant was in possession and control of the Jeep Liberty and of the narcotics recovered therefrom.

         The jury also could have inferred from the defendant's conduct-speeding away upon seeing the police at 1 Lawn Avenue, leading them on a high speed chase and engaging in extensive efforts to evade them, not surrendering to Altera when so ordered, and then fleeing on foot-that he was attempting to avoid being caught with the narcotics in his possession. In other words, the jury could have concluded that the defendant would not have fled unless he knew of the presence and nature of the narcotics in the vehicle.

         On the basis of the foregoing, we conclude that the jury reasonably could have found, on the basis of the circumstantial evidence presented at trial, that the defendant constructively possessed the narcotics recovered from the Jeep Liberty he had been driving on the night of October 9, 2013. Accordingly, we conclude that the evidence presented at trial was sufficient to sustain the defendant's conviction of possession of narcotics.

         The judgments are affirmed.

         In this opinion the other judges concurred.

---------

Notes:

[1] At some point during the pursuit, Gasparino learned that the Jeep Liberty was registered to the defendant's mother, Chiquita Stephenson.

[2] This charge arose out of the defendant's failure to appear in court to answer to a charge that he violated his probation in an unrelated case. See footnote 3 of this opinion.

[3] The defendant was serving a four year sentence resulting from his violation of the conditions of his probation that was imposed on him after he was convicted of robbery and assault in 2007.

[4] The following discussion took place before Judge White before the first day of the trial:

‘‘[The Prosecutor]: Judge, as Your Honor is aware, we're going to be beginning a jury trial in this case this morning. And prior to bringing the jury out before Judge Colin, who will be the presiding judge for the trial, I thought it was prudent if I could just put on the record efforts ...

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