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State v. Bischoff

Court of Appeals of Connecticut

June 12, 2018

STATE OF CONNECTICUT
v.
HAJI JHMALAH BISCHOFF

          Argued March 6, 2018

         Procedural History

         Substitute information charging the defendant with two counts each of the crimes of possession of narcotics with intent to sell by a person who is not drug-dependent, possession of narcotics with intent to sell and possession of narcotics, and with the crime of possession of less than four ounces of a cannabis-type substance, brought to the Superior Court in the judicial district of Fairfield, geographical area number two, and tried to the jury before Dennis, J.; verdict and judgment of guilty of possession of less than four ounces of a cannabis-type substance and two counts of possession of narcotics, from which the defendant appealed to this court. Affirmed.

          James B. Streeto, senior assistant public defender, with whom were Conor J. McLaughlin, certified legal intern, and, on the brief, Emily H. Wagner, assistant public defender, for the appellant (defendant).

          Harry Weller, senior assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, Craig P. Nowak, senior state's attorney, and Merav Knafo, certified legal intern, for the appellee (state).

          Sheldon, Elgo and Bright, Js.

          OPINION

          SHELDON, J.

         The defendant, Haji Jhmalah Bischoff, appeals from the judgment of conviction, rendered against him after a jury trial in the judicial district of Fairfield, on charges of possession of narcotics in violation of General Statutes (Rev. to 2013) § 21a-279 (a) and possession of less than four ounces of a cannabis-type substance (marijuana) in violation of General Statutes (Rev. to 2013) § 21a-279 (c). The defendant claims that (1) the evidence presented at trial was insufficient to support his conviction of possession of narcotics; (2) the trial court erred in failing to instruct the jury, as he requested, on third-party culpability as a defense to possession of narcotics; and (3) if his conviction of possession of narcotics is upheld, this case must be remanded for resentencing because his seven year sentence on that offense exceeds the one year statutory maximum for that offense, as it was retroactively reclassified after his arrest but before his conviction and sentencing in this case.[1] We affirm the judgment of the trial court.

         The jury reasonably could have found the following facts. In July, 2014, the narcotics unit of the Stratford Police Department began to investigate the defendant. Over the next three months, officers surveilling the defendant observed him enter and exit the Honeyspot Motor Lodge in Stratford (motel) several times, and saw him enter room 208 of the motel on at least five or six of those occasions.[2]

         On the morning of October 21, 2014, Sergeant Shaun Martinez went to the motel with a search warrant for room 208 and an arrest warrant for the defendant. At some point between noon and 1 p.m. on that day, while Martinez was waiting outside of the motel for the defendant to arrive, he saw the defendant exit a vehicle, together with one male and three or four female companions, and enter the motel. Thereafter, Martinez and several detectives from the Milford Police Department used a ram to break open the door of room 208. Upon entering the room-which the officers described as a small room, where ‘‘[e]verything is within a hop''-Martinez saw the defendant, who was initially standing in front of the two open cabinet doors of a television stand (TV stand), run into the bathroom. Martinez followed the defendant into the bathroom, and ‘‘tackled [him] onto the floor and took him into custody'' after seeing him throw four $10 bills into the bathtub. When Martinez later searched the defendant's person, he found a small quantity of marijuana and a $10 or a $20 bill in his pocket.

         When Martinez and his fellow officers first entered the room, they saw the other male who had entered the motel with the defendant, whom they later identified as Nevin Lowe, sitting in a chair approximately four to six feet from the TV stand near which the defendant was standing. Lowe did not move from the chair until he was directed to do so by the officers conducting the search of the motel room. None of the officers who had been surveilling the defendant since July had ever seen Lowe, at the motel or elsewhere, prior to October 21, 2014.

         After the defendant, Lowe and four women were removed from the room, Detectives Jonathan Policano and Jason Creatore, of the Stratford Police Department, who had been surveilling the motel from a school parking lot across the street, were called into the room to photograph it and take custody of the evidence that had been found there during the search. On top of the TV stand, they recovered an Altoids tin containing several yellow folds of heroin and thirteen small, clear Ziploc baggies and one blue baggie containing crack cocaine, in addition to $36 in United States currency and ‘‘several prescription pills, narcotic pills.'' Each of the folds and baggies was packed with $10 or $20 worth of heroin or crack cocaine. The officers also seized four cell phones from the dresser located ‘‘just beneath the TV . . . .''

         From the chair on which Lowe had been sitting, the officers seized what Martinez described during his testimony as a ‘‘plastic baggie with several smaller plastic baggies that are used for packaging street level narcotics. Crack cocaine, specifically. There's also a baggie of marijuana, suspected marijuana. And there is what you call apple baggies. It's one big bag but it contains several, it can be fifty, a hundred, I'm not sure the exact amount, but this one baggie here with the apple on it contains several smaller baggies, and that's used for breaking down narcotics and packaging them.'' ‘‘There [were] several small Ziploc baggies [of] various colors, pink, yellow, clear and purple, and these baggies here are used to package crack cocaine.'' The search of the room did not reveal any paraphernalia necessary for using any of the recovered drugs. Also found in the room were several items of men's clothing, which, according to the officers conducting the search, could have fit the defendant, but not Lowe, because Lowe was approximately eighty pounds heavier than the defendant.

         The defendant was charged in connection with these seizures, by a long form information filed February 2, 2016, with possession of heroin with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b), possession of heroin with intent to sell in violation of General Statutes § 21a-277 (a), possession of cocaine with intent to sell by a person who is not drug-dependent in violation of § 21a-278 (b), possession of cocaine with intent to sell in violation of § 21a-277 (a), possession of heroin in violation of § 21a-279 (a), possession of cocaine in violation of § 21a-279 (a), and possession of less than four ounces of a cannabis-type substance (marijuana) in violation of § 21a-279 (c).[3] Following a jury trial, the defendant was convicted of possession of heroin in violation of § 21a-279 (a), possession of cocaine in violation of § 21a-279 (a) and possession of less than four ounces of marijuana in violation of § 21a-279 (c). He was found not guilty of all remaining charges. The court merged the defendant's conviction of possession of heroin and possession of cocaine into a single conviction of possession of narcotics, on which it ...


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