State v. Nesmith 220 Conn. 628

Glass, J.

After a jury trial, the defendant appealed to the Appellate Court from a judgment of conviction of possession of narcotics in violation of General Stat*629utes § 21a-279 (a).1 On appeal, he claimed that the trial court improperly refused to instruct the jury as to the doctrine of nonexclusive possession of the premises. The Appellate Court concluded that “the instructions as given were accurate and consistent with the evidence, and that the trial court was correct in refusing to give the requested charge.” State v. Nesmith, 24 Conn. App. 158, 163, 586 A.2d 628 (1991). We granted certification limited to the following issue: “In the circumstances of this case, was the defendant entitled to have the trial court instruct the jury, in accordance with his request, on the doctrine of nonexclusive possession of the premises?” State v. Nesmith, 218 Conn. 904, 588 A.2d 1383 (1991). We affirm the judgment of the Appellate Court.

The state offered evidence to prove the following.2 On May 5,1989, four officers of the Bridgeport police department went to apartment 104 in building 31 of the Father Panik Village housing project in Bridgeport. The Bridgeport housing authority had confirmed that the apartment was vacant. The apartment was well known to the police as a place used for buying, selling and using drugs. There were no locks on the doors of *630the apartment. At approximately 7 p.m., the officers entered the open door of the apartment. Once inside, they observed between six and eleven persons in the front room. They also observed several empty glassine bags, vials and other common drug vessels on the floor, as well as shoe strings that are commonly applied as tourniquets by drug users, cookers that are used for boiling drugs into a liquid form, and lit candles. The apartment contained no furniture other than a sofa and a few other items that were used to sit on. Officer Joseph Sherbo observed in the hallway a man, later identified as the defendant, moving toward the back bedroom. Sherbo had been in the back bedroom before and knew it was an area used “for buying and using drugs.” Sherbo followed the defendant into the room and, from the doorway, saw him walk toward the rear wall and throw a “light colored object” down to the concrete floor. Sherbo instructed the defendant to “freeze,” searched him for weapons, and sent him to the front room to be guarded by the other police officers. Sherbo then examined the area where he had seen the defendant discard the light colored object and retrieved fifty-seven glassine envelopes and twelve plastic vials.3 Sherbo returned to the front room, where the defendant was arrested along with a man whom another police officer had seen discarding drugs from his person. Later testing proved that some of the envelopes retrieved by Sherbo contained heroin and that the vials contained cocaine.4

The defendant’s testimony directly contradicted the state’s version of the facts. According to the defendant, he was waiting for a friend in the hallway outside *631apartment 104 when four Bridgeport police officers entered the building. A police officer grabbed the defendant and brought him inside the apartment. The defendant was then instructed to sit in a circle on the floor of the front room with approximately eleven other detainees. The defendant observed the man next to him drop three or four blue glassine envelopes on the floor.5 *632According to the defendant, the police observed the man’s actions and removed the bags from the floor. A short time later, the defendant was “patted down,” handcuffed and arrested along with one other person.6 It is undisputed that no drugs were found on the person of the defendant.

The certified question presented is whether, in the circumstances of this case, the defendant was entitled to have the trial court instruct the jury, in accordance with his request, on the doctrine of nonexclusive possession of the premises. We conclude that the evidence did not warrant a jury instruction on the doctrine of nonexclusive possession of the premises, and, therefore, we answer the certified question in the negative.

“ When we are reviewing a trial court’s failure to charge as requested, “we must adopt the version of the facts most favorable to the defendant which the evidence would reasonably support. ”. . . ’ State v. Fuller, 199 Conn. 273, 275, 506 A.2d 556 (1986).” (Citations omitted.) State v. Havican, 213 Conn. 593, 595, 569 A.2d 1089 (1990). Furthermore, “ ‘[a] request to charge which is relevant to the issues of the case and which is an accurate statement of the law must be given. . . .’ State v. Casey, 201 Conn. 174, 178, 513 A.2d 1183 (1986).” (Citations omitted.) State v. Jennings, 216 Conn. 647, 663, 583 A.2d 915 (1990). The *633defendant requested that the court instruct the jury on the doctrine of nonexclusive possession of the premises.7 See State v. Alfonso, 195 Conn. 624, 633, 490 A.2d 75 (1985). The trial court refused to give the requested instruction.8

The defendant’s claim that he was entitled to an instruction on the doctrine of nonexclusive possession of the premises is based primarily on State v. Alfonso, supra, 633, where we stated: “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.’ Evans v. United States, 257 F.2d 121, 128 (9th Cir.), cert. denied, 358 U.S. 866, 79 S. Ct. 98, 3 L. Ed. 2d 99, reh. denied, 358 U.S. 901, 79 S. Ct. 221, 3 L. Ed. 2d 150 (1958); see generally annot., 56 A.L.R.3d 948 (1974).” While the jury instruction on nonexclusive possession of the premises requested by the defendant is accurate as an abstract principle of law; see footnote 7, supra; it is inapplicable to the facts of the present case. If we adopt the version of the facts most favorable to the defendant that the evidence *634would reasonably support, as we must, the jury could have concluded that another detainee discarded the drugs on the floor in the front room, next to the defendant. The evidence thus established possession of the narcotics without requiring that the jury draw an inference based solely on the defendant’s presence on the premises. Under the circumstances of this case, the trial court properly refused to give an instruction on the doctrine of nonexclusive possession of the premises.9

In State v. Alfonso, supra, 627, police searched Alfonso’s apartment when he and a visitor were present. The police discovered cocaine in the living room and marihuana in the kitchen. Alfonso’s two roommates were not present at the time of the search. At the time of his arrest, Alfonso admitted ownership of the cocaine. Neither Alfonso nor his roommates nor the visitor admitted ownership of the marihuana. Id., *635634. We concluded that Alfonso’s admission provided an adequate evidentiary basis for his conviction for possession of cocaine. We reversed Alfonso’s conviction for possession of marihuana, however, on the basis that “the state offered no supporting evidence that would have justified an inference that the defendant possessed the marihuana.” Id., 634-35. Alfonso thus established the principle that a jury may not infer possession of illegal drugs solely from a person’s presence on premises where drugs are found, if the person is not in exclusive possession of such premises.10

In the present case, the apartment in which the narcotics were found was unoccupied on May 5,1989, and, thus, not in the exclusive possession of anyone present at the time the Bridgeport police entered. The defendant testified that the police observed another detainee drop several glassine envelopes on the floor in the front room next to the defendant and then arrested the defendant. According to the state’s evidence, the defendant was seen throwing an object on the floor in a back bedroom where no one else was present and where narcotics were subsequently found. Neither version of the evidence, viewed in the light most favor*636able to the defendant, provides a basis for a charge on the doctrine of nonexclusive possession of the premises because each identifies the person discarding the drugs. Unlike the jury in State v. Alfonso, supra, 633-35, the jury in the present case was not required to draw an inference concerning possession of the narcotics based solely on the defendant’s nonexclusive possession of the premises. Here, the conflicting stories of the defendant and the state’s witnesses both identified a specific person in possession of the drugs: the defendant, who was observed discarding an object later retrieved and identified as narcotics, or another detainee, who, according to the defendant, was observed discarding several glassine envelopes on the floor next to the defendant. The jury, as factfinder, was entitled to disbelieve the defendant’s testimony. See State v. Martin, 189 Conn. 1, 9, 454 A.2d 256, cert. denied, 461 U.S. 933, 103 S. Ct. 2098, 77 L. Ed. 2d 306 (1983); State v. Spates, 176 Conn. 227, 238, 405 A.2d 656 (1978), cert. denied, 440 U.S. 922, 99 S. Ct. 1248, 59 L. Ed. 2d 475 (1979).11 Under the circumstances of this case, the trial court properly refused to give the defendant’s requested instruction concerning the doctrine of nonexclusive possession of the premises.

*637The judgment of the Appellate Court is affirmed.

In this opinion Shea, Callahan and Covello, Js., concurred.

Berdon, J.,

dissenting. The sole issue presented on appeal from the Appellate Court is whether the trial court, in this prosecution for the illegal possession of narcotics with intent to sell, should have instructed the jury on the doctrine of “non-exclusive possession of the premises” in accordance with the defendant’s request to charge.1 The jury returned a verdict of guilty of the lesser included crime of illegal possession of narcotics and the defendant was sentenced to the maximum term of seven years. I find that the instruction should have been given, and would order a new trial on the illegal possession of narcotics.

I will not reiterate the detailed facts set forth in the majority opinion which the jury could have found. Nevertheless, some of the evidence will be repeated as it specifically relates to this issue.

The state was required to prove for conviction the element that the defendant had “possession” of the narcotics. General Statutes § 21a-279 (a).2 Such possession may be actual or constructive. State v. Williams, 169 *638Conn. 322, 335, 363 A.2d 72 (1975). Constructive possession is when the defendant knows of the character of the substance, knows of its presence and exercises dominion and control over it. State v. Somerville, 214 Conn. 378, 390, 572 A.2d 944 (1990). In a case of constructive possession of the narcotics, the rule is “[w]here 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.’ Evans v. United States, 257 F.2d 121, 128 (9th Cir.), cert. denied, 358 U.S. 866, 79 S. Ct. 98, 3 L. Ed. 2d 99, reh. denied, 358 U.S. 901, 79 S. Ct. 221, 3 L. Ed. 2d 150 (1958); see generally annot., 56 A.L.R.3d 948 (1974).” State v. Alfonso, 195 Conn. 624, 633, 490 A.2d 75 (1985).

“ ‘A request to charge which is relevant to the issues of the case and which is an accurate statement of the law must be given. . . .’ ” State v. Allen, 216 Conn. 367, 386-87, 579 A.2d 1066 (1990), quoting State v. Casey, 201 Conn. 174, 178, 513 A.2d 1183 (1986). Accordingly, for the defendant to have been entitled to the “non-exclusive premises” instruction, there must have been evidence upon which the jury could find that (1) the defendant did not have exclusive possession of the premises where the narcotics were found, and (2) the state relied upon the defendant having constructive possession of the narcotics because they were not found on the person of the defendant.

The first requirement that the defendant did not have exclusive possession of the premises has been met. Although the Appellate Court characterized this case as “not a situation of nonexclusivity” of the premises where the narcotics were found; State v. Nesmith, 24 Conn. App. 158, 162, 586 A.2d 628 (1991); the majority *639of this court concedes that the premises including the back room were not in the exclusive possession of the defendant. Indeed, the apartment was well known to the police as a “shooting gallery” for narcotics, there were no locks on the doors, Bridgeport housing authority, the owner of the building in which the apartment was located, confirmed that it was vacant, and, at the time of the incident, there were between six and eleven persons in the front room.

The second requirement that the narcotics were not in the actual possession of the defendant has also been met. The state’s version of the facts confirms this and the trial judge specifically charged the jury on constructive possession.3 Thus, the defendant was entitled to the charge.4

*640The majority seems to justify the refusal to give the charge under either the state’s or the defendant’s version “because each [version] identifies the person discarding the drugs.” In other words, it is their claim that when there is evidence in which to draw an inference that the narcotics were in the possession of someone, the defendant would no longer have the right to the jury instruction. That sets the rule on its head. First, the only way it could be determined under either scenario that the narcotics came from the possession of the person is by drawing an inference. As the majority points out, “[i]t is undisputed that no drugs were found on the person of the defendant.” The rule, however, was designed to prevent the drawing of such an inference unless there were “other incriminating statements or circumstances tending to buttress such an'inference.” Second, as pointed out below, the statements or circumstances that would take it out of the rule and allow for the drawing of such an inference were factual determinations for the jury to make and not for the trial court, the Appellate Court or this court.

Third, the majority assumes that the jury was required to believe either the state’s version or the defendant’s version, but that is not the case. The jury *641had a right to determine whether the state’s witness had been telling the truth in whole, or in part, or whether the witness had been merely mistaken. State v. Alfonso, supra, 633-34. For example, it was for the jury to determine whether Officer Joseph Sherbo had been in fact telling the truth when he had testified that he had seen the defendant throw a “light colored object” against the concrete wall. It was also for the jury to determine whether the glassine envelopes Sherbo had found containing the heroin were in fact what the defendant had thrown down in this vacant apartment. It is conceivable that the jury could have determined that the drugs had not come from the person of the defendant, but concluded that he had possession on the basis of the trial court’s instructions on constructive possession.

Finally, the defendant was entitled to the instructions because he had also been charged with possession of cocaine, which had been found only in the plastic vials on the floor of the back bedroom.5 Sherbo had conceded that it was possible that these vials had not been thrown there by the defendant because when Sherbo had seen the defendant drop the object against the concrete wall, he had not heard a sound. Thus, the defendant’s only connection to the cocaine had been his presence in the back room where the vials had been found. Because of this alone, the defendant was entitled to the jury instruction on nonexclusive possession of the premises, even under the majority’s application of the rule. It is clear that a defendant is “ ‘ “ ‘entitled to have instructions presented relating to any theory of defense for which there is any foundation in the evidence, no matter how weak or incredible . . . ” State v. Havi*642can, 213 Conn. 593, 597, 569 A.2d 1089 (1990), quoting United States v. O’Connor, 237 F.2d 466, 474 n.8 (2d Cir. 1956).

The majority attempts to distinguish State v. Alfonso, supra. Alfonso involved a determination of whether “the evidence adduced at trial was insufficient to support a finding of guilty beyond a reasonable doubt.” Id., 633. In order to make that determination, this court applied the “non-exclusive possession of the premises” rule. The majority relies upon the statement in State v. Alfonso, supra, 634-35, that “the state offered no supporting evidence that would have justified an inference that the defendant possessed the marihuana.” This statement in Alfonso, however, had to do with a determination of whether there had been “other incriminating circumstances tending to buttress such an inference” that would have allowed a conviction for possession of narcotics when the defendant had not been in exclusive possession of the premises and the state could have proven only constructive possession of the narcotics.

In the present case, we are considering whether the jury instruction should have been given and not whether the substantive rule should be applied in order to determine the sufficiency of the evidence. If the instruction on the rule of the nonexclusive possession of the premises had been given, surely, the jury could have reasonably drawn an inference of possession of the narcotics because it could reasonably have found that the actions of the defendant constituted “other incriminating circumstances tending to buttress such an inference.” That, however, is a jury issue to be determined only after it had the guidance of an instruction on the law of nonexclusive possession of the premises.

The failure to give the nonexclusive possession instruction, combined with the court’s instruction on *643constructive possession and the concession that the defendant did not have the exclusive possession of the premises where the narcotics were found, makes it reasonably probable that the error was prejudicial. State v. Vilalastra, 207 Conn. 35, 47, 540 A.2d 42 (1988).

Accordingly, I respectfully dissent.