Argued
January 9, 2019
Procedural
History
Substitute
information charging the defendant with the crimes of
possession of narcotics with intent to sell by a person who
is not drug-dependent, sale of narcotics within 1500 feet of
a school, possession of drug paraphernalia, possession of
narcotics and interfering with an officer, brought to the
Superior Court in the judicial district of Waterbury and
tried to the jury before Harmon, J.;
verdict and judgment of guilty, from which the defendant
appealed to this court. Affirmed.
James
B. Streeto, senior assistant public defender, with whom, on
the brief, was, Samantha L. Oden, former certified legal
intern, for the appellant (defendant).
Laurie
N. Feldman, special deputy assistant state's attorney,
with whom, on the brief, were Maureen Platt, state's
attorney, and David A. Gulick, senior assistant state's
attorney, for the appellee (state).
Prescott, Elgo and Harper, Js.
OPINION
HARPER, J.
The
defendant, Javier Valentin Porfil, appeals from the judgment
of conviction, rendered after a jury trial, of possession of
narcotics with intent to sell by a person who is not
drug-dependent in violation of General Statutes §
21a-278 (b), sale of narcotics within 1500 feet of a school
in violation of General Statutes § 21a-278a (b),
possession of drug paraphernalia in violation of General
Statutes § 21a-267, and possession of narcotics in
violation of General Statutes § 21a-279
(a).[1]
The defendant claims on appeal that (1) the evidence was
insufficient to establish that he was in constructive
possession of narcotics, [2] (2) the trial court deprived him of his
constitutional right to present a defense by improperly
excluding certain photographic evidence and (3) the trial
court deprived him of his constitutional right to present a
misidentification defense by preventing him from displaying a
scar to the jury. We disagree and, accordingly, affirm the
judgment of the trial court.
The
jury reasonably could have found the following facts. On
August 14, 2015, the Waterbury Police Department received an
anonymous telephone call, stating that the defendant, whom
the caller identified by first and last name,
‘‘had warrants'' and was selling
narcotics from the porch of 126-128 Walnut Street in
Waterbury. Located at this address is a three-story
multifamily house with an open front porch. The house has two
front doors; the door on the left opens to a staircase
leading to the second floor landing, and the door on the
right opens to a first floor apartment. The house also has a
back door that leads to the back door of the first floor
apartment and a back staircase to the second floor. The
defendant did not live at this address, but he was there
often to visit family members. After verifying that the
defendant did indeed have active warrants, Officer Scott
Phelan obtained a photograph of the defendant and headed to
the house in an undercover vehicle. Meanwhile, several other
uniformed officers waited in unmarked vehicles in the
vicinity of the house, ready to ‘‘move
in'' on the defendant on Phelan's word.
Phelan
proceeded to drive past the house where he observed the
defendant sitting alone on the porch wearing shorts, a blue
tank top, and a baseball hat. Phelan then sought out a
location from which he could best observe the defendant. He
eventually took up a position across the street in the area
of the intersection of Walnut Street and Cossett Street,
approximately 150 or 175 feet southwest of the porch. From
this position, Phelan had a clear view of the porch through
his binoculars and was able to observe that the left front
door was open, revealing a ‘‘little bit''
of the staircase. He did not observe anyone in the stairway.
After watching the defendant for a time, Phelan observed a
man approach the house and engage in a brief conversation
with the defendant at the bottom of the porch stairs. The
defendant then walked through the open doorway, reappeared
after a time, descended the porch stairs, and
‘‘exchange[d] . . . an item for an item''
with the man. The man then left.
A few
minutes later, Phelan saw a vehicle pull up and park on the
corner of Catherine Avenue and Walnut Street and observed a
man exit the vehicle, approach the house, and engage in a
brief conversation with the defendant.[3] The defendant
again walked into the house through the open doorway,
reappeared a few seconds later, and engaged in another
item-for-item exchange. The man then walked back to his car
and drove away. No one else was seen with the defendant
throughout this transaction other than the person with whom
he had made the exchange.
During
this time, Phelan was in constant radio communication with
the other officers positioned nearby and relayed to them that
he had observed the defendant engage in two hand-to-hand
exchanges. Meanwhile, the other officers waited to receive
notification from Phelan that the defendant had stepped far
enough away from the house to give the officers a good chance
of apprehending him in case he tried to run back inside.
After receiving such notification, Officer Jerome Touponse
and two other officers ran to the front porch, and two
officers went to the back of the house to secure the rear
door.
Upon
approaching the front of the house, Touponse and the other
officers found the defendant alone on the porch, dressed in a
blue tank top, shorts, and a baseball cap, with the left
front door to the house open. The defendant then turned
around and ran through the open left front doorway up the
staircase and entered the second floor
apartment.[4] The officers gave chase. There was no one
else in the stairwell as they pursued the defendant. The
officers eventually made their way inside the second floor
apartment, where the occupants pointed the police to the back
door of the apartment. Touponse went to the back door, but
the defendant was nowhere to be seen.
Meanwhile,
the two officers tasked with covering the back of the house,
Rose[5]
and David Shaban, positioned themselves on the back porch
near the exterior rear door; Shaban stood directly in front
of the door, with Rose a few steps behind him. After a short
time, Shaban observed the defendant, who was wearing a blue
shirt and a baseball cap, begin to exit through the door,
but, upon seeing the officers, he retreated back into the
house and shut the door. When the officers were eventually
able to get through the door, they found the back door to the
first floor apartment was open. The front door to the
apartment was also open, which indicated to Shaban that the
defendant had run right through the apartment.
The
police subsequently searched the entire house, but the
defendant could not be located. In searching the house,
however, they found a brown paper bag in plain view in the
hallway extending to the right of the entrance to the second
floor apartment. See footnote 4 of this opinion. The bag
contained a digital scale, rubber bands, and 171 bags of
heroin, packaged in bundles of ten glassine packets, tied
with rubber bands, and packed in rice. The total street value
of the heroin was between approximately $1000 and $1150.
Officer
Phelan arrested the defendant several months later, in
February, 2016. After Phelan explained to him that he was
being arrested in connection with the events of August 14,
2015, the defendant stated that he was ‘‘sorry
for running.'' The defendant subsequently was charged
with, inter alia, possession of narcotics with intent to sell
by a person who is not drug-dependent in violation of §
21a-278 (b), sale of narcotics within 1500 feet of a school
in violation of § 21a-278a (b), possession of drug
paraphernalia in violation of § 21a-267, and possession
of narcotics in violation of § 21a-279 (a). A jury trial
was held beginning on October 11, 2016, at which the
defendant testified in his own defense.[6] On October 13,
2016, the jury returned a verdict of guilty on all counts,
and the defendant was sentenced on January 20,
2017.[7] This appeal followed. Additional facts and
procedural history will be set forth as necessary.
I
The
defendant first claims that the evidence adduced at trial was
insufficient to support his conviction because the state did
not produce sufficient evidence to prove beyond a reasonable
doubt that he had constructive possession of the narcotics
recovered by the police from 126-128 Walnut Street. We
disagree.
‘‘In
reviewing the sufficiency of the evidence to support 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] 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. Griffin, 184 Conn.App. 595, 613-14, 195
A.3d 723, cert. denied, 330 Conn. 941, 195 A.3d 692 (2018)
and cert. denied, 330 Conn. 941, 195 A.3d 693 (2018).
‘‘[T]o
prove illegal possession of a narcotic substance, it is
necessary to establish that the defendant knew the character
of the substance, knew of its presence and exercised dominion
and control over it. . . . Where . . . the [narcotics were]
not found on the defendant's person, the state must
proceed on the theory of constructive possession, that is,
possession without direct physical contact. . . . 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. . . . While mere presence is not enough to
support an inference of dominion or control, where there are
other pieces of evidence tying the defendant to dominion and
control, the [finder of fact is] entitled to consider the
fact of [the defendant's] presence and to draw inferences
from that presence and the other circumstances linking [the
defendant] to the crime. . . . [T]he test for illegal
possession of drugs is that the accused must know that the
substance in question is a drug, must know of its presence
and exercise dominion and control over it. . . .
‘‘Importantly,
[k]nowledge of the presence of narcotics and control may be
proved circumstantially. . . . Knowledge that drugs are
present and under a defendant's control when found in a
defendant's home or car is more easily shown, of course,
if the defendant has exclusive possession of the area in
which the drugs are found. The difficult cases . . . arise
when possession of an area, such as a car or home or an
apartment, is shared with another person or persons. In
situations in which the putative offender is not in exclusive
possession of the premises where the narcotics are found, we
may not infer that he or she knew of the presence of the
narcotics or that he or she had control over them, without
incriminating statements or circumstances to support that
inference.'' (Internal quotation marks omitted.)
State v. Bischoff, 182 Conn.App. 563, 571-72, 190
A.3d 137, cert. denied, 330 Conn. 912, 193 A.3d 48 (2018).
In the
present case, there is no dispute that narcotics were found
in the second floor hallway of 126-128 Walnut Street, and the
defendant concedes in his appellate brief that the quantity
of narcotics recovered permits an inference that they were
intended for sale.[8] There is also no dispute-at least for
purposes of the defendant's evidentiary insufficiency
claim-that, shortly before the discovery of the narcotics by
the police, the defendant repeatedly entered 126-128 Walnut
Street through the doorway leading to the second floor
hallway. As previously stated, however, spatial and temporal
proximity to contraband, without more, is insufficient to
establish constructive possession if, as in the present case,
the contraband is found in a common area over which the
defendant did not have exclusive possession. The state,
therefore, was required to establish the existence of other
incriminating statements or circumstances linking him to the
narcotics. According to the defendant, the state failed to
introduce evidence of any such statements or circumstances,
and, therefore, his conviction must be reversed. In support
of this claim, the defendant relies primarily on this
court's decision in State v. Nova, 161 Conn.App.
708, 129 A.3d 146 (2015). This reliance is misplaced.
In
Nova, the defendant had been the subject of an
ongoing police investigation, and the police had obtained a
warrant to search the defendant and an apartment to which he
was linked for narcotics. Id., 710. In preparation
for execution of the warrant, police officers conducted
surveillance of the building. Id. During the
surveillance, the defendant was observed entering the
apartment through the main entry door, which opened into the
kitchen. Id., 711. He reemerged a few moments later
and ascended an external staircase to a balcony on the third
floor of the building that adjoined the upper level of the
apartment, where he remained for approximately one minute.
Id. The defendant then returned to his car in the
apartment building's parking lot. Id.
‘‘Shortly
after the defendant returned to his car, police observed a
brief meeting between the defendant and another individual in
the building's parking lot. Specifically, the officers
saw a white male drive a pickup truck into the parking lot
and park next to the defendant's car. The defendant
opened the pickup truck's passenger side door, leaned in,
and spoke to the driver for approximately one minute. During
the meeting, police did not observe any hand-to-hand contact
or the exchange of any item. Afterward, the pickup truck left
the parking lot.'' Id. Moments later, a
police officer observed the driver of the pickup truck appear
to snort something and wipe his nose while stopped at a red
traffic signal. Id. The officer, however, did not
see any drugs or hear the driver snorting, and the police did
not attempt to stop the truck. Id.
The
defendant was then detained and arrested; he did not resist
or make any incriminating statements, and no cash or drugs
were found on his person or in his car. Id., 711-12,
713. ‘‘The search of the apartment revealed drugs
and drug paraphernalia throughout. In the kitchen, a knotted
plastic bag containing crack cocaine and a plastic bag
containing powder cocaine were in a kitchen cabinet; and
clear plastic bags, aluminum foil, and colored tape
containing cocaine residue were in a garbage can. On the
third floor balcony . . . officers found a clear plastic
sandwich bag containing twelve small yellow ziplock bags in a
Wal-Mart shopping bag.'' Id., 712.
Following
a trial to the court, the defendant was convicted of
possession of narcotics and possession of narcotics within
1500 feet of a school. Id., 710. ‘‘In
reaching its judgment, the court relied on several factors
that it deemed sufficiently incriminating to support an
inference of constructive possession: the defendant's
status as the target of the police investigation; his
presence in the areas of the apartment where drugs and
paraphernalia were found-namely, the kitchen and the balcony;
his meeting with the driver of the pickup truck; and his
unfettered access to the apartment . . . .''
Id., 720. On appeal to this court, the defendant
claimed that this evidence was insufficient to sustain his
conviction because the state had failed to prove beyond a
reasonable doubt that he constructively possessed the drugs
found in the common areas of the apartment. Id.,
716. This court agreed, holding that none of these factors,
alone or in combination with the others, established anything
more than a temporal and spatial nexus between the defendant
and the cocaine. Id., 720, 725.
With
regard to the defendant's presence in the kitchen and
balcony, the court concluded that this ‘‘evidence
established merely that he briefly appeared in those
areas.'' Id., 721. More specifically, the
court stated that, given the absence of
‘‘evidence show[ing] the [defendant] making
suspicious movements toward the narcotics, or carrying a bag
similar to one later found to contain narcotics, or
engaging in a drug sale near the narcotics, ''
the state had failed to show ‘‘a compelling
correlation between the defendant's actions . . . and the
conclusion that he controlled the narcotics in the
apartment.'' (Emphasis added.) Id., 722. As
to the evidence regarding the defendant's meeting with
the driver of the pickup truck and the driver's apparent
snorting of some substance thereafter, the court concluded
that such evidence fell short of supporting an inference that
the defendant had controlled the cocaine in the apartment.
Id., 723. In so concluding, the court stressed that,
‘‘[w]ithout evidence of any item changing
hands or of the substance the driver was supposedly
...