STATE OF CONNECTICUT v. ONTARIO I. GAINEY, AC 29143

Judicial District of Waterbury

 Criminal; Sufficiency of the Evidence; Constructive Possession; Whether State Proved that Defendant Constructively Possessed Vehicle in Which Narcotics were Found; Whether Trial Court Improperly Responded to Jury's Question and Misleadingly Charged on Constructive Possession; Whether Defendant was Denied a Fair Trial due to Prosecutorial Impropriety.  The Waterbury police, who suspected that the defendant was selling drugs, obtained a warrant to search the defendant's person, his residence and a Chevy Blazer in his yard.  In executing the warrant, the police found, in the bedroom, an eviction notice addressed to the defendant and "Jane Doe," as well as a set of keys, one of which was for the Blazer.  In searching the vehicle, which had no license plates, they found no insurance card and no registration papers.  They found in the glove box, however, a utility shut-off notice sent to the defendant at that address and a cell phone instruction booklet on which the defendant's nickname was written.  After removing a door panel, they found a plastic bag that contained several ounces of rice, which is commonly stored with heroine to keep it dry, and a second bag containing a number of glassine bags of brown powder.  A field test revealed that the powder contained heroine.  Inside the house, the police found in the kitchen a plastic bag of rice similar to the bag found hidden in the vehicle and a small digital scale.  The defendant was arrested and, after a jury trial, convicted of possession of narcotics.  On appeal, the defendant claims that the evidence was insufficient to prove beyond a reasonable doubt that he constructively possessed the heroin found hidden in the Blazer.  He argues that the state failed to prove that he knew of the hidden heroin or that he exercised exclusive control over the vehicle, which he claims did not belong to him and was only parked, or abandoned, in the yard.  The defendant also contends that the trial court erroneously instructed the jury that "control of the vehicle gives rise to the inference of unlawful possession, and the mere access by others is insufficient to defeat this inference."  This instruction, and particularly the words "gives rise," he argues, misled the jury into believing that control of the vehicle creates a mandatory legal presumption of constructive possession.  The defendant's next claim concerns a question raised by the jury as whether it could infer that the defendant controlled the vehicle if it found that he was not its exclusive owner.  He argues that the trial court's response, which was to  provide the jury with a written version of its prior instructions, was improper and that the court should have given the jury additional instructions on the law pertaining to nonexclusive possession.  Finally, the defendant argues that he was denied a fair trial because the prosecutor introduced his personal opinion as to facts not in evidence, denigrated defense counsel's argument that the defendant did not have exclusive possession of the Blazer, and improperly argued that the jury could reasonably infer that the defendant was guilty because a narcotics search warrant had been approved by a judge for the defendant's person, home and vehicle.  The defendant also asserts that the state committed reversible error in arguing at trial that he possessed exclusive control over the Blazer where, he contends, the search warrant affidavit reveals that a confidential informant stated that, during a "controlled buy," a female resident of the house retrieved drugs from the Blazer to sell to the informant.