State v. Widget

525 A.2d 548, 11 Conn. App. 47, 1987 Conn. App. LEXIS 948
CourtConnecticut Appellate Court
DecidedMay 19, 1987
Docket4095
StatusPublished
Cited by4 cases

This text of 525 A.2d 548 (State v. Widget) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Widget, 525 A.2d 548, 11 Conn. App. 47, 1987 Conn. App. LEXIS 948 (Colo. Ct. App. 1987).

Opinion

Bieluch, J.

The defendant appeals from a judgment of conviction after a jury trial on a charge of possession of cocaine with intent to sell or dispense, a violation of General Statutes § 21a-277 (a).1 His only claim on appeal is that the trial court’s instructions on circumstantial evidence constituted plain error and denied him due process of law. We find no error.

The jury could reasonably have found the following facts. On October 10,1984, at approximately 7:30 p.m., five officers of the Stamford police department surrounded a single-family two-story residence at 223 Henry Street,2 Stamford, preliminary to executing a [49]*49search warrant. One officer was stationed at the front of the house, two officers were positioned at the rear and two officers undertook to execute the search warrant by entering through the front door. A woman answered the door, but refused to allow the police officers to enter the house. During the attempted entrance under the warrant, Officer Michael Docimo, stationed in the front of the house, saw a shirtless black male come to the second floor front window of the dwelling and quickly leave. Docimo informed the two officers who were seeking entrance to execute the search warrant, John Fontineau and John Geter, of what he had just seen, whereupon the two officers made a forced entry into the home and ran upstairs to the second floor. There, they observed the defendant, who was black and not wearing a shirt, leaning out of the front window and appearing to throw something out of that window. At the same time, Docimo saw a shirtless black male come again to the front window and throw out a plastic bag containing thirteen grams of a white powder, which Docimo caught. The defendant was immediately arrested by the two officers in the front room. A search of the room resulted in the discovery and seizure of the following contraband: various items of paraphernalia covered with traces of white powder, a package containing rice and white powder, sixteen packets containing a white powder and $4946 in cash. The contents of the plastic bag thrown out of the window and the white powder seized in the room were later identified as cocaine. The only other persons in the house at the time of the defendant’s arrest were the [50]*50elderly woman, who had refused the officers entrance to execute the search warrant, two other adults and a very young boy.

The defendant was charged by substitute information with one count of possession of cocaine with intent to sell or dispense, a violation of General Statutes § 21a-277 (a). The defendant pleaded not guilty to the charge and elected to be tried by a jury. At the trial, the defendant denied possession of the cocaine. Docimo testified at trial as to the actions of the man he saw at the front window, but he was unable to identify the defendant as that person. Officers Fontineau and Geter testified that, upon entering the house, they immediately ran upstairs to the room indicated by Docimo and saw the defendant leaning out of the front window and making a throwing motion. He was not wearing a shirt and appeared to be throwing something out the window. At the time of the officers’ observations and the arrest, the defendant was the only person in the room. There were, however, three other adults in the house at that time.

During its charge to the jury, the court gave the following instruction relative to circumstantial evidence: “When you are satisfied as to the existence of the facts from which you are asked to conclude the existence of another fact, it is your duty and your function to draw that reasonable and logical inference or conclusion. Does it enter this case? In many respects. An example, and I am not bringing it up to give you any weight or encouragement to accept it. Reject it if you do not believe it happened, do not spend any time on it. But if an officer says that he saw a man bare-chested in a window, and two others simultaneously are going up the stairs and they locate a man bare-chested in the room, you have facts. If you believe them. That is your function. I make no comment. That is your function. If you believe that, then it is a reasonable and logical [51]*51conclusion for you to consider that the person in the room was the person in the window. That is circumstantial evidence. That is drawing a conclusion or an inference from facts in evidence. But remember the basic, fundamental test is, do you believe the existence of the fundamental facts? Are they credible and reliable, for you to believe that the other facts existed? And from those, is it reasonable and logical to draw the conclusion? In passing upon the guilt of an accused person on the basis of circumstantial evidence, you must be satisfied beyond a reasonable doubt first that the certain facts or circumstances existed and the existence of those facts do beyond a reasonable doubt reasonably and logically lead you to other facts establishing that the crime was committed by the accused. Unless the existence of those facts, either alone or in conjunction with other direct evidence, compels you as reasonable men and women to only one conclusion, namely, that the accused is guilty, then of course you will be not justified in finding him. guilty.” The defendant took no exception to this charge at trial. The jury returned a verdict of guilty and the defendant was sentenced accordingly.

The defendant claims for the first time in this appeal that the court’s instruction was erroneous. He asserts that the only fact in issue was whether the man Docimo saw in the window, thro wing out the cocaine was the defendant.3 His objection to the court’s charge is premised upon the instruction that if the jury believed that the officer outside saw a bare-chested man in the window, and the other two officers then entered the [52]*52house and found a man alone and bare-chested in the room, “then it is a reasonable and logical conclusion for you to consider that the person in the room was the person in the window.” He characterizes this statement as a mandatory presumption instruction prohibited by the fourteenth amendment to the constitution of the United States. He claims review of the instruction under the exceptional circumstances of State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). We agree that this claim is reviewable. See State v. Smith, 201 Conn. 659, 672, 519 A.2d 26 (1986); State v. Acklin, 9 Conn. App. 656, 664, 521 A.2d 165 (1987).

Our standard for review for challenges to jury instructions is well established. “The ultimate test of the charge is whether, read in its entirety, it fairly presents the case to the jury so that no injustice is done.” State v. Storlazzi, 191 Conn. 453, 466, 464 A.2d 829 (1983); State v. Parent, 8 Conn. App. 469, 476, 513 A.2d 725 (1986). In reviewing the charge, we also note that “[t]he court may, in its discretion, make reasonable comments on the evidence. See, e.g., Marko v. Stop & Shop, Inc., 169 Conn. 550, 562, 364 A.2d 217 [1975]; State v. Cari, 163 Conn.

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Cite This Page — Counsel Stack

Bluebook (online)
525 A.2d 548, 11 Conn. App. 47, 1987 Conn. App. LEXIS 948, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-widget-connappct-1987.