State v. McNeil ( 2015 )

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STATE OF CONNECTICUT v. JERRY MCNEIL
(AC 34491)
Alvord, Mullins and Bear, Js.
Argued November 13, 2014—officially released January 13, 2015
(Appeal from Superior Court, judicial district of
Hartford, geographical area number twelve, C.
Taylor, J.)
Scott Jongebloed, certified legal intern, with whom
were Timothy H. Everett, assigned counsel, and, on
the brief, Kurt Young and Erica Barber, certified legal
interns, for the appellant (defendant).
Maria del Pilar Gonzalez, deputy assistant state’s
attorney, with whom, on the brief, were Gail P. Hardy,
state’s attorney, and Alexander C. Beck, assistant state’s
attorney, for the appellee (state).
Opinion
MULLINS, J. The defendant, Jerry M.L.K. McNeil,
appeals from the judgments of conviction, rendered
following a jury trial, of possession of narcotics in viola-
tion of General Statutes § 21a-279 (a), possession with
intent to use drug paraphernalia in violation of General
Statutes § 21a-267 (a), and larceny in the sixth degree in
violation of General Statutes § 53a-125b.1 The defendant
claims that (1) the evidence was insufficient to sustain
his convictions; (2) as applied to the facts of this case,
§ 21a-279 (a) is unconstitutionally vague; and (3) there
is a reasonable possibility that the court misled the jury
when it gave an inadequate response to a jury question.
We affirm the judgments of the trial court.
The jury reasonably could have found the following
facts. On the evening of September 9, 2011, Officer
David Goncalves of the east central narcotics task force
of the Glastonbury Police Department (department)
was on patrol in an unmarked police vehicle. Goncalves
had been trained in undercover narcotics work, includ-
ing classes in drug paraphernalia and cocaine, and had
made hundreds of narcotics related arrests. At approxi-
mately 9:30 p.m., as Goncalves was patrolling Main
Street, he saw two men talking to the defendant, who
was in the driver’s seat of a vehicle bearing Colorado
license plates. The two men were standing outside of
the vehicle. The vehicle was in an unlit parking lot
next to some businesses that were closed. Goncalves
checked the vehicle’s registration through the Depart-
ment of Motor Vehicle’s files, which revealed that the
vehicle previously had been registered to a female, but
that the registration had expired more than one year
prior. At that point, Goncalves saw the two men enter
the vehicle, and the defendant drove away. Goncalves
then initiated a motor vehicle stop on Main Street. For
safety reasons, Goncalves also called for backup.
When Goncalves approached the vehicle, he
explained the reason for the stop and asked the defen-
dant for his driver’s license, the vehicle’s registration
and his insurance card. The defendant produced a valid
Colorado driver’s license and an expired insurance
card, but he had no registration for the vehicle. He told
Goncalves that he owned the vehicle, having purchased
it at an auction. Goncalves then asked the defendant if
anyone else had use of the vehicle, and the defendant
said no. Per department policy, Goncalves told the
defendant that the vehicle would have to be towed, and
he proceeded to conduct an inventory search of the
vehicle to collect any high value items for safekeeping.
In the trunk of the vehicle, Goncalves found Connecti-
cut registration plates, which the Department of Motor
Vehicles had listed as stolen approximately seven or
eight days prior. He also found what appeared to be a
miniature CD case, which actually was a digital scale,
containing what Goncalves suspected to be cocaine
residue.2 Goncalves knew through his experience and
training that the purpose of these types of scales is for
weighing narcotics in order to sell them. Goncalves
secured the evidence, the defendant’s vehicle was
towed, and the defendant was arrested.
The scale was sent to the state’s controlled substance
laboratory for the Department of Emergency Services
and Public Protection, where testing was conducted by
a chemist, Laura Grestini. Prior to the testing, Grestini
saw a small amount of white powder on the scale when
she opened it. She tested that substance, and the testing
confirmed that the white powder, in fact, was cocaine.3
Following a jury trial, the defendant was convicted
of possession of narcotics, possession with intent to
use drug paraphernalia, and larceny in the sixth degree.4
This appeal followed.
I
On appeal, the defendant first claims that the evi-
dence was insufficient to sustain his convictions of (A)
possession of narcotics and possession with intent to
use drug paraphernalia, and (B) larceny in the sixth
degree. He argues: ‘‘The evidence was insufficient to
prove beyond a reasonable doubt that [he] had domin-
ion and control over the items in the trunk, that he
knew they were there, that he knew that there was
residue on the scale, and that he knew that the residue
was cocaine.’’
The defendant further argues that the state’s case
was weak: ‘‘There was no evidence establishing when
the defendant purchased the vehicle at auction or the
identity of the registered owner of the vehicle.5 There
was no evidence presented as to the make of the vehicle,
or the layout of the interior of the vehicle. There was
no evidence whether the trunk of the vehicle was acces-
sible from the passenger compartment. There was no
evidence whether the trunk locked or was accessible
only with a key. The state did not offer any fingerprint
evidence of the items in the trunk. . . . In sum, there
was minimal evidence in this case from which to infer
that the defendant knew of and possessed the stolen
marker plate[s], drug paraphernalia and cocaine on the
paraphernalia in the trunk of the vehicle he was driv-
ing.’’ (Citation omitted; emphasis altered; footnote
added.) We conclude that even if the evidence ‘‘was
minimal,’’ it was sufficient.6 See generally State v. Var-
ela, 115 Conn. App. 531, 537, 973 A.2d 156 (scant evi-
dence sufficient to sustain conviction), cert. denied, 294
Conn. 913, 983 A.2d 852 (2009).
‘‘In reviewing a sufficiency of the evidence claim, 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 con-
strued and the inferences reasonably drawn therefrom
the [trier of fact] reasonably could have concluded that
the cumulative force of the evidence established guilt
beyond a reasonable doubt. . . . In evaluating evi-
dence, the trier of fact is not required to accept as
dispositive those inferences that are consistent with
the defendant’s innocence. . . . The trier may draw
whatever inferences from the evidence or facts estab-
lished by the evidence it deems to be reasonable and
logical. . . . This does not require that each subordi-
nate conclusion established by or inferred from the
evidence, or even from other inferences, be proved
beyond a reasonable doubt . . . because this court has
held that a [trier’s] factual inferences that support a
guilty verdict need only be reasonable.’’ (Internal quota-
tion marks omitted.) State v. Jordan, 314 Conn. 89,
106–107, 101 A.3d 179 (2014).
‘‘[An] appellate court’s first task, in responding to a
claim of evidentiary insufficiency, is to apply the tradi-
tional scope of review to the evidence. That requires
that . . . we view all of the evidence, and the reason-
able inferences drawable therefrom, in favor of the [tri-
er’s] verdict. . . . We note that a claim of insufficiency
of the evidence must be tested by reviewing no less
than, and no more than, the evidence introduced at
trial.’’ (Citations omitted; internal quotation marks omit-
ted.) State v. Butler, 296 Conn. 62, 77, 993 A.2d 970
(2010).
A
The defendant claims that the evidence was insuffi-
cient to sustain his conviction of possession of narcotics
and possession of drug paraphernalia for two reasons.
First, he argues that there was no evidence that he was
aware of anything in the trunk, including the scale or
what was on the scale. Thus, he contends that the evi-
dence did not support the jury’s conclusion that he
knowingly possessed the items located in the trunk.
Second, the defendant argues that, even if there had
been evidence sufficient to establish that he was aware
of the contents of the trunk, including the scale, his
simply being aware of the scale, standing alone, was
insufficient to support a conviction for possession of
narcotics. More specifically, the defendant argues that,
because the scale contained only a tiny, unmeasurable
or microscopic amount of cocaine residue, that minis-
cule amount, by itself, was insufficient to prove that he
knowingly possessed narcotics because, in this case, a
chemist had to use sophisticated testing methods to
ascertain that the substance, in fact, was cocaine. He
explains that he is not arguing that residue on a scale
could not satisfy the ‘‘any quantity’’ aspect of § 21-279
(a), but, rather, that he is arguing that there needs to
be more than just mere microscopic residue to demon-
strate that a suspect knew that the residue was on the
scale and knew the narcotic character of the residue.
We are not persuaded.
Section 21a-279 (a) provides: ‘‘Any person who pos-
sesses or has under his control any quantity of any
narcotic substance, except as authorized in this chapter,
for a first offense, may be imprisoned not more than
seven years or be fined not more than fifty thousand
dollars, or be both fined and imprisoned; and for a
second offense, may be imprisoned not more than fif-
teen years or be fined not more than one hundred thou-
sand dollars, or be both fined and imprisoned; and for
any subsequent offense, may be imprisoned not more
than twenty-five years or be fined not more than two
hundred fifty thousand dollars, or be both fined and
imprisoned.’’
Section ‘‘21a-279 (a) neither contains nor implies any
minimum amount or usability exception to its prohibi-
tion against the possession of illegal narcotics.’’ State
v. McCarthy, 25 Conn. App. 624, 629, 595 A.2d 941, cert.
denied, 220 Conn. 925, 598 A.2d 366 (1991). Neverthe-
less, in McCarthy we explained that ‘‘[a]lthough we are
mindful of the . . . concerns about prosecutions based
on microscopic amounts of illegal narcotics, the legisla-
ture has opted to rely in such cases on the judgment
of prosecutors. Courts provide a check on the state’s
accusatory powers, but we will not substitute our judg-
ment for that of a prosecutor with respect to which
cases should be tried and which are insignificant
through the veil of a threshold amount or usability
requirement not contained in § 21a-279 (a).’’ Id., 630.
‘‘[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 con-
structive possession, that is, possession without direct
physical contact. . . . One factor that may be consid-
ered in determining whether a defendant is in construc-
tive 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 infer-
ences 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 narcot-
ics and control may be proved circumstantially. . . .
Knowledge that drugs are present and under a defen-
dant’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, such as the present one, 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 narcot-
ics 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.’’ (Citation
omitted; internal quotation marks omitted.) State v.
Slaughter, 151 Conn. App. 340, 345–47, 95 A.3d 1160,
cert. denied, 314 Conn. 916, 100 A.3d 405 (2014).
In the present case, the defendant puts much time
into, and much emphasis on, distinguishing his case
from State v. McCarthy, supra, 25 Conn. App. 624. He
argues that in McCarthy, the police had witnessed the
defendant with narcotics, but, as they approached the
defendant, he threw the narcotic substance into the air,
and the police were able to recover only a small trace
amount of the substance, which later proved to be
cocaine. He contends that although the trace amount
of narcotics was sufficient to support a conviction of
possession in McCarthy, there was no question that the
defendant knew that he possessed the substance in that
case; he was about to use it, and he tried to dispose of
it when he saw the police. To the contrary, he argues,
in the present case, there was no evidence that the
defendant had knowledge of the character of the residue
found on the scale.
The defendant also argues that knowledge was not
at issue in State v. Johnson, 26 Conn. App. 779, 783, 603
A.2d 440 (‘‘[a] person may be convicted of possession of
a narcotic substance with intent to sell when that person
knowingly possesses and intends to sell any narcotic
substance, regardless of the amount or whether the
amount is sufficient to give the buyer a ‘high’ ’’), cert.
denied, 221 Conn. 925, 608 A.2d 690 (1992), because,
in that case, ‘‘the defendant was apprehended with nar-
cotics and disposed of them in the presence of the
arresting officer.’’ He argues that McCarthy and John-
son are distinguishable from the present case because,
in those cases, the court did not have to consider the
knowledge element of the possession charges. Finally,
he ‘‘contends that a tiny quantity of narcotics may yield
an inference of knowledge only when taken with other
evidence such as in McCarthy and Johnson. Here,
though, there is no such evidence.’’7 (Footnote omitted.)
We disagree.
Despite the defendant’s argument, in this case there
was more evidence that the jury reasonably could have
found established his knowing possession of narcotics
than mere microscopic residue found in the trunk of a
vehicle that the defendant was driving.8 There is no
dispute that there was cocaine visible as a white pow-
der, that the cocaine was on a scale that is used for
weighing narcotics in order to sell them, and that the
cocaine and the scale were found in the trunk of a
vehicle that the defendant said he owned. Additionally,
the defendant was in the driver’s seat of the vehicle at
the time the officer discovered that the vehicle was
unregistered and had Colorado license plates that had
expired more than one year prior. After being pulled
over by the officer, the defendant produced a valid
Colorado driver’s license and an expired insurance
card. He also told the officer that he had purchased the
vehicle at an auction, that it was his vehicle, and that
no one else had use of the vehicle.
The evidence certainly established that the license
plates on the vehicle, although expired, were from Colo-
rado and that the defendant had produced for the officer
a valid Colorado driver’s license. In light of this evi-
dence, it would not have been unreasonable for the
jury to have concluded that the defendant had driven
the vehicle from Colorado to Connecticut. The defen-
dant also told the officer that no one else had use of
the vehicle. Therefore, the jury reasonably could have
concluded that the defendant exercised dominion and
control over the trunk of his vehicle, as well as its
contents. Furthermore, it would not have been unrea-
sonable for the jury to have concluded that, because
the defendant was the owner of the vehicle, which he
likely had driven from Colorado to Connecticut, and
he admitted to being the only person who had use of
the vehicle, he was aware and had knowledge of the
contents of the trunk and the presence of the scale
containing cocaine. On the basis of the foregoing, we
conclude that the jury reasonably could have found that
the defendant had knowingly possessed and controlled
the narcotics and the scale that were found in the trunk
of his vehicle.
B
The defendant also claims that the evidence was
insufficient to establish larceny in the sixth degree. He
again argues that there was no evidence that he knew
what was in the trunk of the vehicle, and he additionally
argues that there was no evidence that he committed
larceny. He contends that his ‘‘mere access to the trunk
of the vehicle is an insufficient basis upon which to
conclude that [he] committed larceny by intending to
withhold a marker plate from its owner.’’ For the rea-
sons expressed in part I A of this opinion, we conclude
that there was sufficient evidence that he knowingly
possessed and controlled the items that were in the
truck of his vehicle, including the plates. We will exam-
ine, however, whether there was sufficient evidence
that he intended to withhold the plates from their
owner.
‘‘Connecticut courts have interpreted the essential
elements of larceny as (1) the wrongful taking or car-
rying away of the personal property of another; (2) the
existence of a felonious intent in the taker to deprive
the owner of [the property] permanently; and (3) the
lack of consent of the owner.’’ (Internal quotation marks
omitted.) State v. Sherman, 127 Conn. App. 377, 391,
13 A.3d 1138 (2011). ‘‘It is well settled . . . that the
question of intent is purely a question of fact. . . . The
state of mind of one accused of a crime is often the
most significant and, at the same time, the most elusive
element of the crime charged. . . . Because it is practi-
cally impossible to know what someone is thinking
or intending at any given moment, absent an outright
declaration of intent, a person’s state of mind is usually
proven by circumstantial evidence. . . . Intent may be
and usually is inferred from conduct. . . . [W]hether
such an inference should be drawn is properly a ques-
tion for the jury to decide. . . . Because larceny is
a specific intent crime, the state must show that the
defendant acted with the subjective desire or knowl-
edge that his actions constituted stealing. A specific
intent to deprive another of property or to appropriate
the same to himself . . . is an essential element of
larceny . . . and as such must be proved beyond a
reasonable doubt by the state.’’ (Citations omitted;
internal quotation marks omitted.) State v. Papandrea,
120 Conn. App. 224, 230–31, 991 A.2d 617 (2010), aff’d,
302 Conn. 340, 26 A.3d 75 (2011).
Construing the evidence in the light most favorable to
sustaining the verdict and with all inferences reasonably
drawn therefrom, the jury reasonably could have found
the following facts: (1) A set of license plates had been
stolen from Manchester seven or eight days before they
were discovered in the trunk of the defendant’s vehicle;
(2) the defendant owned the vehicle in which the plates
were discovered; and (3) the defendant stated that no
one else had use of the vehicle in which the plates were
discovered. On the basis of these facts, we conclude
that the jury reasonably could have inferred that it was
the defendant who had put the stolen plates into the
trunk of his vehicle with the intent to permanently
deprive the owner of this property. Accordingly, the
evidence was sufficient to sustain the defendant’s con-
viction of larceny in the sixth degree.
II
The defendant next claims that § 21a-279 (a) is uncon-
stitutionally vague as applied to the facts of this case
for two separate, but related, reasons.9 First, he claims
that the word ‘‘any’’ is not defined in the statute, and
that the statute, therefore, does not give adequate notice
as to how small an amount of a narcotic substance
would equal ‘‘any.’’ In support of this claim, he argues
that the statute does not demarcate when ‘‘ ‘any’
becomes ‘none’ for purposes of felony liability,’’ and he
asks, ‘‘[w]hen does ‘any quantity’ become nothing at all
or something so minimal . . . that it cannot reasonably
satisfy the elements of knowing possession?’’ Thus, he
contends that ‘‘[a] person possessing paraphernalia
with microscopic remnants of cocaine is not on notice
that he faces prosecution for a felony for failure to
clean the paraphernalia more completely.’’
Second, the defendant claims that the statute is
ambiguous and creates an unworkable standard by giv-
ing the police, the prosecution and the courts unfettered
discretion. Specifically, he argues that ‘‘the ambiguity
of the statutory text, ‘any quantity,’ as applied here
provides an unworkable standard that promotes dis-
criminatory and arbitrary enforcement of the law
because the literal meaning of such a phrase can lead
to frankly absurd results, including prosecution for pos-
session of [United States] currency on which lab techni-
cian[s] commonly can find traces of narcotics.’’ We are
not persuaded.
Whether a statute is unconstitutionally vague pre-
sents a question of law over which we exercise plenary
review. State v. Winot, 294 Conn. 753, 759, 988 A.2d
188 (2010). Our Supreme Court has explained that ‘‘[a]
statute is not void for vagueness unless it clearly and
unequivocally is unconstitutional, making every pre-
sumption in favor of its validity. . . . To demonstrate
that [a statute] is unconstitutionally vague as applied to
him, the [defendant] therefore must . . . demonstrate
beyond a reasonable doubt that [he] had inadequate
notice of what was prohibited or that [he was] the victim
of arbitrary and discriminatory enforcement. . . .
[T]he void for vagueness doctrine embodies two central
precepts: the right to fair warning of the effect of a
governing statute . . . and the guarantee against stan-
dardless law enforcement. . . . If the meaning of a stat-
ute can be fairly ascertained a statute will not be void
for vagueness since [m]any statutes will have some
inherent vagueness, for [i]n most English words and
phrases there lurk uncertainties. . . . References to
judicial opinions involving the statute, the common law,
legal dictionaries, or treatises may be necessary to
ascertain a statute’s meaning to determine if it gives
fair warning.’’ (Internal quotation marks omitted.) Id.;
see State v. Chance, 147 Conn. App. 598, 614, 83 A.3d
703, cert. denied, 311 Conn. 932, 87 A.3d 580, cert.
denied, U.S. , 135 S. Ct. 169, 190 L. Ed. 2d 120
(2014).
The primary question here is whether the defendant
had fair warning in 2011 that he could be prosecuted
for possession of a narcotic substance on the basis of
visible cocaine left on a scale that is known to be used
for weighing narcotics in order to sell them. On the
basis of the clear language of the statute and the case
law interpreting that statute, we conclude that he had
sufficient warning.
Section 21a-279 makes criminal, except in clearly
defined circumstances as set forth in that statute, the
possession of ‘‘any quantity of any narcotic substance
. . . .’’ (Emphasis added.) In 1984, our Supreme Court
expressed in State v. Connelly, 194 Conn. 589, 593, 483
A.2d 1085 (1984), that the phrase ‘‘ ‘any quantity of any
narcotic substance’ ’’ used in § 21a-279 is ‘‘precise lan-
guage emphasizing that possession of ‘any’ amount
of a narcotic constitutes a crime . . . .’’ (Emphasis
added.)
More recently, in State v. McCarthy, supra, 25 Conn.
App. 627–30, which was released in 1991, this court
examined the ‘‘any quantity of any narcotic substance’’
language used in § 21a-279. There, we explained that
‘‘it is the majority view that any amount of a proscribed
substance is sufficient to sustain a conviction for pos-
session [of a narcotic substance].’’ (Emphasis in origi-
nal.) Id., 628. On the basis of the clear language of § 21a-
279 (a), we ‘‘decline[d] to require any minimum amount
or usability requirement before a conviction may be
had pursuant to § 21a-279 (a).’’ Id., 629. We further
explained: Section ‘‘21a-279 (a) neither contains nor
implies any minimum amount or usability exception to
its prohibition against the possession of illegal narcot-
ics. . . . When a statute provides for punishment in
such unequivocal language and provides for no excep-
tions, it must be assumed that the legislature deemed
that such enactment was necessary effectively to curb
violation of the law, and we cannot impute to it an
intent to make the statute less drastic and effective by
adopting a strained construction of the language used,
and reading into it an exception which does not there
appear.’’ (Internal quotation marks omitted.) Id.,
629–30.
Additionally, we stated: ‘‘Moreover, our statutes pro-
scribing illegal substances reflect convincingly a strong
legislative policy directed toward the complete suppres-
sion of narcotics such as heroin and cocaine. . . . For
this court to impose a minimum amount or usability
requirement would so constrict and narrow § 21a-279
(a) as to frustrate the legislature’s intention. Further,
such a requirement would add uncertainty to the law.
Courts that have adopted a minimum amount or usabil-
ity standard have failed to offer any readily applicable
definition of a usable amount. . . . The unwieldy
nature of such a test counsels against any usability
or minimum amount requirement.’’ (Citations omitted;
emphasis in original; internal quotation marks omitted.)
Id., 630.
On the basis of the clear language of the statute and
the relevant precedent of our appellate courts, we con-
clude that the defendant had fair notice well before his
arrest that a visible amount of cocaine remaining on a
scale known to be used for weighing narcotics in order
to sell them was a violation of § 21a-279 (a).
We also are unpersuaded by the defendant’s argu-
ment that § 21a-279 (a) is vague as applied because
‘‘the police, prosecution, and the court had unfettered
discretion in making this a felony possession case based
solely on the presence of cocaine residue on the scale.’’
‘‘[I]f arbitrary and discriminatory enforcement is to
be prevented, laws must provide explicit standards for
those who apply them. A vague law impermissibly dele-
gates basic policy matters to policemen, judges, and
juries for resolution on an ad hoc and subjective basis,
with the attendant dangers of arbitrary and discrimina-
tory applications. . . . Therefore, a legislature [must]
establish minimal guidelines to govern law enforce-
ment. . . .
‘‘[M]any statutes proscribing criminal offenses neces-
sarily cannot be drafted with the utmost precision and
still effectively reach the targeted behaviors. Consistent
with that acknowledgment, the United States Supreme
Court has explained: The root of the vagueness doctrine
is a rough idea of fairness. It is not a principle designed
to convert into a constitutional dilemma the practical
difficulties in drawing criminal statutes both general
enough to take into account a variety of human conduct
and sufficiently specific to provide fair warning that
certain kinds of conduct are prohibited. Colten v. Ken-
tucky, 407 U.S. 104, 110, 92 S. Ct. 1953, 32 L. Ed. 2d
584 (1972) . . . .’’ (Citations omitted; internal quota-
tion marks omitted.) State v. Winot, supra, 294 Conn.
760.
As set forth previously in this opinion, in McCarthy,
we explained: ‘‘Although we are mindful of . . . con-
cerns about prosecutions based on microscopic
amounts of illegal narcotics, the legislature has opted
to rely in such cases on the judgment of prosecutors.
Courts provide a check on the state’s accusatory pow-
ers, but we will not substitute our judgment for that of
a prosecutor with respect to which cases should be
tried and which are insignificant through the veil of a
threshold amount or usability requirement not con-
tained in § 21a-279 (a).’’ State v. McCarthy, supra, 25
Conn. App. 630.
In the present case, despite the defendant’s argu-
ments about microscopic residue and trace amounts of
narcotics that commonly can be found on our currency,
the amount of narcotics in this case was not micro-
scopic and invisible to the naked eye, and it was not
found on a dollar bill in general circulation. The narcotic
substance was cocaine found on a scale known to be
used for weighing narcotics in order to sell them, and,
although it was only a small amount of cocaine, it,
nonetheless, was visible as a white powder. The
arresting officer, Goncalves, testified that the scale had
residue on it when he discovered it. Grestini, the chem-
ist who tested the scale, testified that it had a white
powder on it, which, testing confirmed, was cocaine.
Goncalves further testified when he was explaining the
scale to the jury during the defendant’s trial that the
scale still contained ‘‘a little bit of suspected cocaine
residue.’’ We conclude, therefore, that in this case there
was no risk of arbitrary and discriminatory enforcement
because the plain language of § 21a-279 (a) provided
sufficient guidance and notice to the defendant that he
was prohibited from possessing the small amount of
cocaine, visible as a white powder, that was found on
a scale known to be used for weighing narcotics in
order to sell them.
III
The final claim of the defendant is that the court gave
an inadequate response to a question asked by the jury
during its deliberations, and that it is reasonably possi-
ble that such response misled the jury. The defendant
does not claim that the supplemental instruction given
by the court in response to the jury’s question was
erroneous in law. Rather, he claims that it was inade-
quate to address the jury’s question because it failed
to ‘‘tak[e] account of the full scope of the question’’
where the ‘‘jury’s question combined the element of
‘quantity’ with the element of ‘possession.’ ’’ He argues
that ‘‘the jury should have been informed that the ‘any
quantity’ element in the possession statute must be a
quantity that the jury finds the accused controlled, knew
to be present, and knew was cocaine—that is to say,
it must be a quantity that the defendant knowingly pos-
sessed.’’ The state argues that the court properly and
fully instructed the jury with regard to each element of
the possession charge during its final instructions and
that it was not reasonably possible that the court’s
supplemental instruction misled the jury because the
court properly answered the specific question asked by
the jury. We agree with the state.
The record reveals the following additional facts. At
the close of evidence, the court charged the jury, inter
alia, on the elements of the crimes charged and the
applicable definitions, including the definition of pos-
session, constructive possession and knowingly. It is
undisputed that the court’s initial charge properly
instructed the jury on the law. During deliberations,
however, the jury sent a note to the court, asking: ‘‘Is
there a minimum amount that constitutes possession
of a narcotic?’’ After inviting counsel to make sugges-
tions on a proper response to the jury’s question,10 the
court recalled the jury and stated: ‘‘Now, the answer
to [your] question is no, there is no minimum amount.
So, with that response, ladies and gentlemen, I’ll ask
you to return back to your deliberations. Thank you very
much.’’ The defendant claims that this supplemental
instruction likely misled the jury because it was incom-
plete and did not address fully the jury’s question.
‘‘The standard of review for claims of instructional
impropriety is well established. [I]ndividual jury
instructions should not be judged in artificial isolation
. . . but must be viewed in the context of the overall
charge. . . . The pertinent test is whether the charge,
read in its entirety, fairly presents the case to the jury
in such a way that injustice is not done to either party
under the established rules of law. . . . Thus, [t]he
whole charge must be considered from the standpoint
of its effect on the [jurors] in guiding them to the proper
verdict . . . and not critically dissected in a micro-
scopic search for possible error. . . . Accordingly, [i]n
reviewing a constitutional challenge to the trial court’s
instruction, we must consider the jury charge as a whole
to determine whether it is reasonably possible that the
instruction misled the jury. . . . In other words, we
must consider whether the instructions [in totality] are
sufficiently correct in law, adapted to the issues and
ample for the guidance of the jury. . . . A challenge
to the validity of jury instructions presents a question
of law over which [we have] plenary review.’’ (Citation
omitted; internal quotation marks omitted.) State v.
Santiago, 305 Conn. 101, 190–91, 49 A.3d 566 (2012).
Practice Book § 42-27 provides: ‘‘If the jury, after
retiring for deliberations, requests additional instruc-
tions, the judicial authority, after providing notice to
the parties and an opportunity for suggestions by coun-
sel, shall recall the jury to the courtroom and give addi-
tional instructions necessary to respond properly to the
request or to direct the jury’s attention to a portion of
the original instructions.’’
The defendant contends that the court’s supplemen-
tal instruction likely misled the jury because the court
did not explain that there needed to be an amount
sufficient to establish that the defendant knowingly pos-
sessed the narcotic substance. The defendant cites to
our decision in State v. Fletcher, 10 Conn. App. 697,
701, 525 A.2d 535 (1987), aff’d, 207 Conn. 191, 540 A.2d
370 (1988), in support of his contention. We are not per-
suaded.
Fletcher readily is distinguishable from the present
case. The primary issue in Fletcher was ‘‘whether, when
the trial court receives inquiries from the foreperson
of the jury regarding the legal standards applicable to
the facts of the case, it may decline to answer those
questions or to clarify its instructions upon its determi-
nation that the inquiries were made for the benefit of
less than the entire panel.’’ Id., 698. We answered that
question in the negative. Id., 705–706. We explained:
‘‘In evaluating a claim of constitutional error in the
supplemental charge, we would normally review the
charge as a whole to determine whether the jury could
reasonably have been misled. . . . Here, there was no
supplemental charge given on reasonable doubt or self-
defense. The inquiry of some members of the jury as
to their confusion as to the law is manifest by the inquiry
by the foreperson and makes evident the reasonable
possibility that the jury was misled.’’ (Citation omitted;
emphasis added.) Id., 706.
In the present case, the court did not decline to
answer the jury’s question, as did the court in Fletcher.
Rather, the court in this case answered the jury’s ques-
tion in precise fashion. The jury specifically asked
whether there was ‘‘a minimum amount that constitutes
possession of a narcotic.’’ Despite the defendant’s con-
tention, the jury did not ask what constitutes posses-
sion; it asked whether there was a minimum amount
that constitutes possession. In accordance with State v.
McCarthy, supra, 25 Conn. App. 630, the court properly
answered, ‘‘no, there is no minimum amount.’’ See State
v. McCarthy, supra, 629 (‘‘§ 21a-279 [a] neither contains
nor implies any minimum amount . . . to its prohibi-
tion against the possession of illegal narcotics’’).
Accordingly, we conclude that the court’s supplemental
instruction was correct in law and that it properly
answered the precise question asked by the jury.
The judgments are affirmed.
In this opinion the other judges concurred.
1
The defendant also was charged with and convicted of operation of a
motor vehicle without minimum insurance in violation of General Statutes
§ 14-213b and operating an unregistered motor vehicle in violation of General
Statutes § 14-12 (a). The defendant on appeal has not challenged these con-
victions.
2
During Goncalves’ testimony at the defendant’s criminal trial, while he
was examining and describing the scale for the jury, he stated that it still
contained some suspected cocaine residue.
3
The use of the word ‘‘residue’’ throughout this case by the officer and the
parties creates, perhaps, some unnecessary confusion. A common dictionary
definition of the term ‘‘residue’’ is as follows: ‘‘1. The remainder of something
after removal of a part. 2. Matter remaining after completion of an abstractive
chemical or physical process, such as evaporation, combustion, distillation,
or filtration; residuum.’’ American Heritage Dictionary (2d College Ed. 1985).
Here, the chemist, Grestini, clearly testified that ‘‘on the inside on the scale,
there was the presence of cocaine.’’ (Emphasis added.) She also testified
that the cocaine was visible as a white powder. Accordingly, the jury reason-
ably could have found that there was cocaine present on the scale, rather
than mere residue.
4
See footnote 1 of this opinion.
5
We note that evidence was clear that the vehicle was not registered at
the time the defendant was stopped, the prior registration having expired
more than one year before the stop.
6
Additionally, the defendant contends, and the state concedes, that the
state needed to prove that the defendant was in constructive possession of
the items in the trunk because there were two other individuals in the
passenger area of the vehicle. Assuming, without deciding, that the defendant
was not in exclusive possession of the trunk area, we, nonetheless, conclude
that the evidence was sufficient to sustain his convictions.
7
During oral argument, we specifically inquired whether the defendant
would be making the same argument if the scale and the residue had been
found on the driver’s seat near the defendant. The defendant responded
that in such a scenario, the evidence likely would be sufficient because the
scale with the residue would be in plain view. Essentially, the defendant
explained that, if the scale were by his side on the front seat of the vehicle,
the evidence of knowledge would consist of more than mere residue. The
scale would be near him, within arm’s reach and in plain sight. Therefore,
it would be reasonable for the jury to infer that he knew what it was and
what it contained. With the scale in the trunk, however, he contends that
there exists only mere residue on a scale, with no evidence that he knew
of the scale’s existence or knew what was on the scale.
8
By recognizing that there was more than mere residue in this case, we
do not mean to imply that mere residue could not be sufficient by itself.
9
The defendant acknowledges that his claim is unpreserved and seeks
to prevail under the four conditions of State v. Golding, 213 Conn. 233,
239–40, 567 A.2d 823 (1989), for review of unpreserved claims of constitu-
tional dimension. The claim is reviewable under Golding because the record
is adequate for review and the claim is of constitutional magnitude. The
defendant, however, is unable to satisfy Golding’s third prong because he
is unable to demonstrate that a constitutional violation clearly exists and
clearly deprived him of a fair trial.
10
The court asked counsel to suggest, for the record, an appropriate
response to the jury’s question, and the following colloquy occurred:
‘‘[The Prosecutor]: Your Honor, in regard to the state, the state believes
that the answer to [the jury’s] question is, no, there is no required amount.
It’s any—any amount is sufficient.
‘‘The Court: Counselor?
‘‘[Defense Counsel]: Well, if your question is what language you are going
to give the jurors [to answer] [t]heir question—if you could read their
question . . . again, Your Honor. I apologize.
‘‘The Court: All right. This question is: Is there a minimum amount that
constitutes possession of a narcotic?
‘‘[Defense Counsel]: Okay. I would request that the answer just be no,
and not the language proposed by [the prosecutor] that the answer be—
what was your request?
‘‘[The Prosecutor]: Well, I said the answer would be no, that any amount
is sufficient.
‘‘[Defense Counsel]: Yeah. I would not add that language. I’d ask that
you just answer no. And then we had a discussion, Judge, amongst [the
prosecutor] and I and the court—well, I think the answer should be no, and
I’ll leave it at that.
‘‘The Court: All right.
‘‘[Defense Counsel]: I mean, we had discussions that maybe that type of
answer and the amount of the drug is probative of the defendant’s knowledge
of its presence or that knowledge of it, the character of the evidence. And,
at first, I was going to ask you to add that to the language of your answer.
But, I think that’s probably—well—so, that would be my first choice, but,
in the alternative, I think the answer just should be no.
‘‘The Court: All right. I’ve had an opportunity to review State v. McCarthy,
[supra] 25 Conn. App. 624. I propose to tell the jury in response—when
they come in, in response to your question, the answer is no, that there is
no minimum amount, and leave it at that. All right, then. We’ll bring in
the panel.’’