State v. Herring ( 2014 )

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STATE OF CONNECTICUT v. TERRY P. HERRING
(AC 34292)
DiPentima, C. J., and Alvord and Harper, Js.
Argued January 15—officially released June 24, 2014
(Appeal from Superior Court, judicial district of New
Britain, Kahn, J.)
Mary Beattie Schairer, assigned counsel, for the
appellant (defendant).
Nancy L. Chupak, senior assistant state’s attorney,
with whom, on the brief, were Scott J. Murphy, state’s
attorney, and Christian Watson, assistant state’s attor-
ney, for the appellee (state).
Opinion
HARPER, J. The defendant, Terry P. Herring, appeals
from a judgment of conviction, rendered after a jury
trial, of conspiracy to distribute one kilogram or more
of marijuana in violation of General Statutes §§ 52a-48
and 21a-278 (b), and possession of one kilogram or
more of marijuana with the intent to sell as an accessory
in violation of General Statutes §§ 53a-8 and 21a-278
(b).1 The defendant claims that (1) both convictions
were based on insufficient evidence; (2) the court
improperly instructed the jury on the state of mind
required to convict him on both charges; and (3) his
right to due process was violated as a result of prosecu-
torial impropriety. We disagree, and affirm the judgment
of the trial court.
The jury reasonably could have found the following
facts. Agent Eric Ebrus of the United States Drug
Enforcement Agency received information that a large
shipment of marijuana was scheduled to be delivered
to 21 Austin Street in New Britain on February 9, 2010.
Federal agents intercepted the package in Springfield,
Massachusetts. The bill of lading indicated that the
package weighed approximately 260 pounds. The pack-
age’s documentation stated that it contained car parts
and was being shipped to ‘‘Jim Bernard Garage.’’ After
obtaining a search warrant, the agents drilled a hole in
the bottom of the package to determine whether the
package contained any illegal substances. On the basis
of Ebrus’ knowledge and experience, he concluded that
the package contained marijuana. The agents then
planned a controlled delivery of the package, during
which they would monitor it until someone accepted
delivery.
Prior to intercepting the package in Springfield,
Ebrus contacted Officer Frank Bellizzi of the New Brit-
ain Police Department on February 3, 2010. He informed
Bellizzi that a shipment of marijuana was scheduled to
be delivered to 21 Austin Street, and subsequently the
two law enforcement agencies collaborated in the inves-
tigation. The investigation revealed that the defendant
owned the property in question. Bellizzi began conduct-
ing periodic surveillance of the subject property. He
observed that the area was residential, and that there
was no evidence to indicate the presence of any com-
mercial businesses. On February 8, 2010, however, Bel-
lizzi discovered that a sign reading ‘‘Jim’s Garage’’ had
been placed on the front lawn of the subject property.
At approximately nine in the morning on the day that
the package was scheduled to be delivered, February 9,
2010, officers from the New Britain Police Department
began conducting surveillance of the subject property.
The officers observed the defendant engage in a series
of countersurveillance activities. Various officers testi-
fied at trial that countersurveillance is conduct intended
to detect the presence of law enforcement so that one
coconspirator may alert others, thereby evading detec-
tion by law enforcement. Specifically, the officers testi-
fied that, from 9:30 a.m. to 11:30 a.m., the defendant
remained in a parked car observing his property from
several houses away. The defendant admitted that peri-
odically he would drive around the neighborhood look-
ing for the presence of law enforcement and then
resume conducting surveillance of his property. At one
point, when the defendant was patrolling the area, he
observed Bellizzi conversing with an officer in a marked
police vehicle. The defendant alerted Christopher Wat-
son, a coconspirator, that police were in the area.2
In order to confirm that the defendant was engaged
in countersurveillance, at approximately 11:45 a.m.,
undercover officers intentionally ran over the ‘‘Jim’s
Garage’’ sign on the defendant’s lawn in an unmarked
police vehicle. In response, the defendant drove his car
from his surveillance position to his property and exited
the vehicle. The officers claimed that they were lost.
The defendant, visibly upset about the incident, stated
that the sign was his, and then gave the undercover
officers directions. Afterward, the defendant replaced
the sign before driving around the neighborhood and
taking up his previous position.
While the New Britain police officers were conduct-
ing surveillance of the defendant and his property,
Ebrus was in Springfield monitoring the package. He
observed the package being loaded onto the delivery
truck and then followed the truck until it arrived at the
defendant’s property at approximately 1:45 p.m. Watson
arrived at the scene prior to the delivery. When the
delivery truck arrived, the driver exited the vehicle and
was joined by the defendant and Watson at the rear of
the truck. The driver removed the package, and all three
individuals used a dolly to move the package up the
defendant’s driveway and into his garage. The defen-
dant then closed his garage door, securing the package
within. After the driver left, the officers observed the
defendant and Watson walking back up the driveway
and into the street. At this time, officers converged on
both individuals and placed them under arrest.
The officers found a remote garage door opener upon
searching the defendant’s person incident to the arrest.
Bellizzi pressed the button on the remote, and the defen-
dant’s garage door opened, exposing the package in
question. The defendant then consented to a search of
his home and the garage. When the defendant and Bel-
lizzi approached the package, the defendant stated: ‘‘I
knew this wasn’t going to be good.’’ Bellizzi noted that,
although a sign had been placed on the defendant’s
lawn stating, ‘‘Jim’s Garage,’’ there was no evidence of
any cars being repaired on the property. The defendant
was transported to the New Britain Police Department
for questioning. The officers confiscated the package
and forensic analysis later determined that it contained
102 pounds of marijuana.3
At the police department, the officers obtained a
signed, written statement from the defendant regarding
the events in question. The statement indicated that
Watson put the ‘‘Jim’s Garage’’ sign in front of the defen-
dant’s house. The defendant stated that Watson had
told him that he would be paid $1400 to accept delivery
of an ‘‘engine crate.’’ When the defendant asked Watson
what was in the package, Watson informed him that
it contained ‘‘something that shouldn’t be in it.’’ The
defendant, however, still agreed to accept the package.
He also admitted in his written statement that he was
conducting countersurveillance on February 9, 2010,
had helped unload the package, and had stored the
package in his garage.
At trial, the state argued that the circumstantial evi-
dence demonstrated that the defendant knew that the
package contained marijuana. Specifically, the state
argued that the reference to ‘‘Jim Bernard Garage’’ on
the package, the ‘‘Jim’s Garage’’ sign on the defendant’s
property, his reaction when the sign was damaged, his
countersurveillance, the fact that he was paid $1400 to
accept delivery of the package, and his written state-
ment to the police amounted to sufficient circumstantial
evidence to infer that the defendant knew that the pack-
age contained one kilogram or more of marijuana. The
defendant was convicted of conspiracy to distribute one
kilogram or more of marijuana in violation of §§ 53a-48
and 21a-278 (b) (conspiracy count), and possession of
one kilogram or more of marijuana with intent to sell
as an accessory in violation of §§ 53a-8 and 21a-278 (b)
(accessory count).
On appeal, the defendant claims that (1) the jury
improperly convicted him on both the conspiracy count
and the accessory count because there was insufficient
evidence that he knew that the contents of the package
was marijuana, or, moreover, that the package con-
tained one kilogram or more of marijuana; (2) the court
improperly instructed the jury with respect to the men-
tal state required to find him guilty of both counts; and
(3) the prosecutor’s comments during closing argu-
ments constituted prosecutorial impropriety and
deprived the defendant of his right to due process. We
disagree. Additional facts will be set forth as necessary.
I
The defendant raises one claim that there was insuffi-
cient evidence to convict him of the conspiracy count,
and a separate insufficiency claim with respect to the
accessory count. In each claim, he argues that the state
did not prove beyond a reasonable doubt that he knew
that there was marijuana in the package that was deliv-
ered to his house, and, even if he knew that marijuana
was in the package, he did not know that one kilogram
or more of marijuana was present.
‘‘The standard of review we apply to a claim of insuffi-
cient evidence is well established. In reviewing the suffi-
ciency 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 con-
strued 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. . . .
‘‘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.’’ (Internal quotation
marks omitted.) State v. Martin, 285 Conn. 135, 147–48,
939 A.2d 524, cert. denied, 555 U.S. 859, 129 S. Ct. 133,
172 L. Ed. 2d 101 (2008).
‘‘[T]he jury must find every element proven beyond
a reasonable doubt in order to find the defendant guilty
of the charged offense . . . .’’ (Internal quotation
marks omitted.) Id., 147. ‘‘[P]roof 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 . . . . 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 evi-
dence that supports the [finder of fact’s] verdict of
guilty.’’ (Internal quotation marks omitted.) Id., 148.
‘‘[W]e do not sit as a thirteenth juror who may cast a
vote against the verdict based upon our feeling that
some doubt of guilt is shown by the cold printed record.
. . . This court cannot substitute its own judgment for
that of the jury if there is sufficient evidence to support
the jury’s verdict.’’ (Internal quotation marks omitted.)
State v. Morgan, 274 Conn. 790, 800, 877 A.2d 739 (2005).
A
The defendant first claims that there was insufficient
evidence adduced at trial that he knew that the package
contained marijuana. We first explain why the defen-
dant’s knowledge that the package specifically con-
tained marijuana—as opposed to any other
contraband—was an essential element of both the con-
spiracy count and the accessory count. A conspiracy
conviction requires proof that the defendant had the
specific intent to bring about each element of the under-
lying crime. State v. Padua, 273 Conn. 138, 167, 869
A.2d 192 (2005). One element of the underlying crime
in the conspiracy count, § 21a-278 (b), is that the sub-
stance distributed was marijuana. Furthermore, to be
convicted as an accessory, the defendant must possess
the same intent as the principal. See State v. Gonzalez,
300 Conn. 490, 507, 15 A.3d 1049 (2011). The underlying
crime in the accessory count, possession of a controlled
substance, requires that the state ‘‘establish that the
defendant knew the character of the substance . . . .’’
(Internal quotation marks omitted.) State v. Bruno, 293
Conn. 127, 136, 975 A.2d 1253 (2009). Accordingly, proof
that the defendant knew that the package contained
marijuana was an essential element of both the conspir-
acy count and the accessory count.
Under similar circumstances, our Supreme Court
held that there was sufficient evidence to uphold a
conviction for conspiring to possess one kilogram or
more of marijuana with intent to sell. State v. Martin,
supra, 285 Conn. 156. In Martin, the issue on appeal was
‘‘whether the state introduced sufficient circumstantial
evidence to support a permissive inference by the jury
that the defendant had knowledge that a package con-
tained illegal narcotics, considering the defendant’s
actions before, during and after a controlled delivery
of the package.’’ Id. 136–37. The evidence at trial
showed that the defendant accepted receipt of a pack-
age that had a fictitious addressee, he engaged in coun-
tersurveillance,4 he actively participated in transporting
the package via car, he assisted carrying the package
into a residence, he possessed enough cash to purchase
one pound of marijuana, and he was found in possession
of a fraudulent driver’s license.5 Id. 138, 142, 150–55.
The court concluded that the circumstantial evidence
was sufficient to convict the defendant of conspiracy
to possess one kilogram or more of marijuana with the
intent to sell. Id., 156–57.
In Martin, the court also addressed the potential
risk of convicting innocent bystanders of conspiracy to
possess a controlled substance on the basis of circum-
stantial evidence alone. Id., 157. The court reasoned
that any concern that the defendant was merely an
innocent bystander was overcome by ‘‘the substantive
impact of the circumstantial evidence . . . [that
allowed] an inference of the defendant’s knowledge of
the marijuana in the package.’’ Id. ‘‘[Although] mere
acceptance of a package containing narcotics is an
insufficient basis for an inference of knowledge of its
contents . . . [a] defendant’s active participation in
the conspiracy to possess one kilogram or more of
marijuana, with the intent to sell, [makes] him more
than simply an innocent bystander.’’ (Internal quotation
marks omitted.) Id. We interpret Martin to stand for
the proposition that, when viewing the evidence in a
light most favorable to sustaining a guilty verdict, a
jury reasonably may infer that the defendant knows a
package contains a specific controlled substance when
the defendant is in possession of the package and there
is additional circumstantial evidence supporting the
inference that the defendant has knowledge of its con-
tents, such as evidence that the defendant engaged in
countersurveillance or otherwise actively prepared to
accept the package. See id., 156–58; see also State v.
Berger, 249 Conn. 218, 225, 733 A.2d 156 (1999) (‘‘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 cir-
cumstances tending to buttress such an inference’’
[internal quotation marks omitted]).
In the present case, there was sufficient circumstan-
tial evidence presented at trial to permit a reasonable
inference that the defendant knew that the package in
question contained marijuana. The package was
addressed to a fictitious business. The defendant posted
a sign corresponding to the fictitious business on his
property the day before the package was delivered. He
unequivocally stated to police officers that the sign was
his. The defendant engaged in countersurveillance,
admitting in his written statement that he was ‘‘looking
for cops before the package was delivered’’ and that
he had alerted his coconspirator to the presence of law
enforcement in the area. The defendant helped move
the package into his garage. When he was arrested, the
defendant stated to the police, ‘‘I knew this wasn’t going
to be good.’’ The defendant admitted that he agreed to
accept $1400 as compensation for accepting delivery of
the package at his house. On the basis of this evidence,
viewed in the light most favorable to upholding the
verdict, the jury reasonably could have concluded that
‘‘[t]he defendant’s active participation . . . made him
more than simply an innocent bystander.’’ (Internal quo-
tation marks omitted.) State v. Martin, supra, 285 Conn.
157. Ultimately, ‘‘it [is] the jury’s province to determine
whether the defendant was an innocent bystander or
an active participant in the criminal conspiracy . . .
and we should not override that decision on the basis
of the cold, printed record.’’ (Internal quotation marks
omitted.) Id., 156. We conclude that the substantive
impact of the circumstantial evidence, taken as a whole,
permits an inference of the defendant’s knowledge of
the marijuana in the package. See id., 157.
B
The defendant also argues, as part of his insufficiency
claims, that there was insufficient evidence he knew
that there was one kilogram or more of a controlled
substance in the package. As a preliminary matter, we
conclude that this claim is only relevant to the conspir-
acy count. As discussed previously, a conspiracy con-
viction requires the specific intent to bring about every
element of the crime, which in this case includes the
fact that the controlled substance weighed one kilogram
or more. See General Statutes § 21a-278 (b); State v.
Padua, supra, 273 Conn. 167. An individual’s liability
as an accessory, on the other hand, is commensurate
with that of the principal and the state’s burden of
proof does not change. See State v. Gonzalez, supra,300 Conn. 507. This distinction between liability as a
coconspirator and liability as an accessory is significant
if one of the elements of the underlying crime does not
require proof of specific intent. When that is the case,
the state has a relatively lesser burden with respect to
that element if it charges the defendant as an accessory
because the state does not have the burden of proving
specific intent.6 The defendant’s claim here that the
evidence was insufficient to convict him as an accessory
raises a question of statutory interpretation: whether
the defendant’s knowledge that he possessed one kilo-
gram or more of marijuana is an element of § 21a-278
(b). See State v. Denby, 235 Conn. 477, 478, 481, 668
A.2d 682 (1995). Our standard of review therefore is
plenary. Id., 481.
Section 21a-278 (b) prohibits any person from pos-
sessing with the intent to sell one kilogram or more of
marijuana. The defendant’s claim asks us to consider
whether § 21a-278 (b) requires that the state prove that
the defendant knew that he possessed one kilogram or
more of marijuana. We can find no Connecticut appel-
late court decision directing that the state must prove
that the defendant knew that he was in possession of
what amounted to one kilogram or more of marijuana.
Our precedent directs that, to convict a defendant of
violating § 21a-278 (b), the state must prove beyond a
reasonable doubt that (1) the defendant possessed a
substance, (2) the substance was a narcotic, (3) the
defendant intended to sell the substance, and (4) the
defendant knew the character of the substance. State
v. Bruno, supra, 293 Conn. 136; see also State v. Martin,
supra, 285 Conn. 149. If the substance is marijuana,
the state must prove that the defendant possessed one
kilogram or more of marijuana. General Statutes § 21a-
278 (b). There is no specific requirement in the plain
language of the statute that the state must prove that
the defendant knew that he possessed one kilogram
or more of marijuana, and we will not infer such a
requirement. See State v. Denby, supra, 235 Conn. 482–
83. ‘‘The absence of any statutory requirement that the
defendant knowingly [possessed one kilogram or more]
demonstrates that the legislature did not intend to make
knowledge an element of the crime. If the legislature
had wanted to make knowledge as to [the amount of
marijuana in question] an element of the offense, it
would have done so by specifically stating [as much].’’
Id. Because the defendant’s knowledge regarding the
amount of marijuana is not an element of the crime,
the state was not required to prove that the defendant
knew that he possessed one kilogram or more of mari-
juana in order to convict him as an accessory. The
defendant’s claim that there was insufficient evidence
with respect to his knowledge of the amount of mari-
juana contained in the package is, therefore, only rele-
vant to the conspiracy count.
The jury reasonably could have inferred that, on the
basis of the circumstantial evidence, the defendant
knew that there was one kilogram or more of marijuana
in the package for purposes of the conspiracy count.
The bill of lading stated that the package weighed 260
pounds, whereas one kilogram is only about 2.2 pounds.
There was testimony that the package weighed so much
that the defendant, the delivery truck driver, and Wat-
son collectively moved it from the truck to the garage
with the aid of a hydraulic dolly. Furthermore, it took
two officers to load the package into a police pickup
truck for transfer to the police department. After a
forensic analysis, it was determined that the package
seized contained 102 pounds of marijuana. On the basis
of all the evidence, the jury reasonably could have
inferred that the defendant knew that the package con-
tained one kilogram or more of marijuana. See State v.
Martin, supra, 285 Conn. 158. We conclude that there
was sufficient evidence to convict the defendant on
both the conspiracy count and the accessory count.
II
The defendant also claims that the court erred in its
instructions relating to the state’s burden of proving
that the defendant knew that the package contained
marijuana. He argues that the court’s instructions indi-
cated to the jury that it could find that he knew that
the package contained marijuana on the basis of its
subjective belief that a reasonable person would have
known that the package contained marijuana. The
defendant concedes that this claim is unpreserved, but,
nevertheless, requests review pursuant to State v. Gold-
ing, 213 Conn. 233, 239–40, 567 A.2d 823 (1989). We
conclude that, pursuant to State v. Kitchens, 299 Conn.
447, 10 A.3d 942 (2011), the defendant has waived any
challenge to the relevant jury instruction and, therefore,
is not entitled to Golding review.
The following facts are necessary for the resolution
of this claim. The court provided the defendant with
proposed jury instructions on the second day of trial,
October 25, 2011. Two days later, on October 27, 2011,
the defendant stated that he had reviewed the jury
charge and had some objections as well as some sug-
gested additional instructions. The charge conference
began later that day and concluded on October 28, 2011.
The court ultimately instructed the jury that ‘‘[t]he state
must prove beyond a reasonable doubt that the defen-
dant knew that he was in possession of [marijuana].’’
The court then instructed that a person acts ‘‘know-
ingly’’ when he is aware that a fact or circumstance
exists. The court subsequently instructed: ‘‘Ordinarily,
knowledge can be established only through an inference
from other proven facts and circumstances. The infer-
ence may be drawn if the circumstances are such that
a reasonable person of honest intention, in the situation
of the defendant, would have concluded that he was in
possession of [marijuana]. The determinative question
is whether the circumstances in the particular case form
a basis for a sound inference as to the knowledge of
the defendant in the transaction under inquiry.’’ The
defendant asserts that this instruction ‘‘lowered the
state’s burden of proof’’ and allowed the jury to convict
him on the basis of its subjective belief as opposed to
the defendant’s objective knowledge that the package
contained marijuana. We conclude that the defendant
has waived this claim, and, therefore, we decline to
review it.
‘‘It is well established in Connecticut that unpre-
served claims of improper jury instructions are review-
able under Golding unless they have been induced or
implicitly waived.’’ State v. Kitchens, supra, 299 Conn.
468. ‘‘The mechanism by which a right may be waived
. . . varies according to the right at stake. . . . For
certain fundamental rights, the defendant must person-
ally make an informed waiver. . . . For other rights,
however, waiver may be affected by action of counsel.
. . . [including] the right of a defendant to proper jury
instructions.’’ (Citation omitted; internal quotation
marks omitted.) Id., 467. ‘‘Connecticut courts have con-
sistently held that when a party fails to raise in the trial
court the constitutional claim presented on appeal and
affirmatively acquiesces to the trial court’s order, that
party waives any such claim [under Golding].’’ (Internal
quotation marks omitted.) Id., 469. ‘‘[W]hen the trial
court provides counsel with a copy of the proposed
jury instructions, allows a meaningful opportunity for
their review, solicits comments from counsel regarding
changes or modifications and counsel affirmatively
accepts the instructions proposed or given, the defen-
dant may be deemed to have knowledge of any potential
flaws therein and to have waived implicitly the constitu-
tional right to challenge the instructions on direct
appeal.’’ Id., 482–83. ‘‘[C]ounsel’s discussion of unre-
lated parts of the jury charge at an on-the-record charge
conference . . . demonstrate[s] that counsel was suffi-
ciently familiar with the instructions to identify those
portions of the instructions with which he disagreed.
[T]o the extent that he selectively discussed certain
portions of the instructions but not others, one may
presume that he had knowledge of the portions that he
did not discuss and found them to be proper, thus waiv-
ing the defendant’s right to challenge them on direct
appeal.’’ Id., 499 n.31.
The defendant had a meaningful opportunity to
review the proposed jury instruction at issue and affirm-
atively assented to that instruction. The defendant had
two days to review the proposed jury instructions. He
stated that he had reviewed the charge and took excep-
tion to some of the instructions. The court then pro-
ceeded to review the instructions with counsel page by
page. The defendant took exception to the language in
the paragraph preceding the instruction he now claims
was improper and the sentence immediately following
the instruction. We conclude that, under these circum-
stances, the defendant had a meaningful opportunity
to review the jury instruction in question, assented to
that instruction, and thereby waived his right to chal-
lenge the instruction on appeal. See State v. Webster,
308 Conn. 43, 63, 60 A.3d 259 (2013) (‘‘in every post-
Kitchens case in which defense counsel was given the
opportunity to review the proposed jury instructions
overnight, we have concluded that defense counsel had
received a meaningful opportunity to review the pro-
posed instructions’’); State v. Kitchens, supra, 299
Conn. 499 n.31 (objection to adjacent instructions indic-
ative of assent to instruction in question).7 As such, we
decline to review this claim. State v. Kitchens, supra,
468.
III
The defendant’s final claim is that his right to due
process was violated as a result of improper comments
by the prosecutor during closing argument. He argues
that the prosecutor ‘‘misled’’ the jury into believing that
the defendant could have been convicted of the crimes
charged if he knew that there was ‘‘something illegal’’
in the package, yet did not know that the illegal material
was specifically marijuana. Furthermore, the defendant
also claims that it was improper for the prosecutor to
argue that the defendant could be convicted on the
basis of his written statement alone. We conclude that
the prosecutor’s remarks were not improper.8
With respect to a claim of prosecutorial impropriety
during closing arguments, the defendant has the burden
of first proving that the prosecutor’s remarks were
improper. State v. Otto, 305 Conn. 51, 76, 43 A.3d 629(2012). ‘‘[Our Supreme Court] previously has acknowl-
edged: [P]rosecutorial [impropriety] of constitutional
magnitude can occur in the course of closing argu-
ments. . . . In determining whether such [impropriety]
has occurred, the reviewing court must give due defer-
ence to the fact that [c]ounsel must be allowed a gener-
ous latitude in argument, as the limits of legitimate
argument and fair comment cannot be determined pre-
cisely by rule and line, and something must be allowed
for the zeal of counsel in the heat of argument. . . .
[A] prosecutor may argue the state’s case forcefully,
[provided the argument is] fair and based upon the facts
in evidence and the reasonable inferences to be drawn
therefrom. . . . Furthermore, prosecutors are not per-
mitted to misstate the law . . . and suggestions that
distort the government’s burden of proof are likewise
improper . . . because such statements are likely to
improperly mislead the jury.’’ (Citations omitted; inter-
nal quotation marks omitted.) Id., 76–77.
Throughout closing argument, the prosecutor repeat-
edly argued that, on the basis of the evidence, the jury
should infer that the defendant knew that there was
‘‘something illegal’’ in the package. These comments
are well within the limits of legitimate argument, as
the evidence reasonably led to the conclusion that the
defendant knew that the package contained contra-
band. We disagree with the defendant that the prosecu-
tor also argued that knowledge of some unspecific
contraband was sufficient to find the defendant guilty.9
We therefore conclude the prosecutor did not improp-
erly mislead the jury in this respect.
The prosecutor also argued: ‘‘The defendant’s own
words [in his written statement to the police] are
enough to convict the defendant . . . of conspiracy to
possess marijuana with intention to sell and accessory
to the same charge. . . . His own words damn—damn
him in this case.’’ This argument is ‘‘fair and based upon
the facts in evidence and the reasonable inferences to
be drawn therefrom.’’ State v. Otto, supra, 305 Conn 76.
It establishes that: (1) the defendant agreed with Wat-
son to accept delivery of a package at his residence in
exchange for $1400; (2) the defendant knew that the
package contained contraband; (3) the defendant pre-
pared for the delivery of the package by placing a ficti-
tious business sign in front of his house and by
conducting countersurveillance; and (4) the defendant
helped unload the package and place it in his garage.
It was within the bounds of legitimate and zealous argu-
ment for the prosecutor to assert that, on the basis
of these facts, the defendant knew that the package
contained marijuana, and, therefore, he could be found
guilty of the crimes charged. See State v. Martin, supra,285 Conn. 158 (defendant’s active participation in
accepting package together with other circumstantial
evidence sufficient to prove knowledge of package’s
contents).10 We conclude that the prosecutor’s remarks
during closing argument did not constitute prosecu-
torial impropriety.11
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant was charged with conspiracy to distribute one kilogram
or more of a cannabis-type substance and possession of one kilogram or
more of a cannabis-type substance with intent to sell as an accessory. Our
General Statutes define marijuana as a cannabis-type substance. General
Statutes § 21a-240 (7) and (29). In this opinion, we refer to the substance
in question as marijuana.
2
Watson pleaded guilty to one count of conspiracy to sell a controlled
substance in violation of General Statutes § 21a-277 (b) and was sentenced
to a total effective term of seven years incarceration, execution suspended
after three years, followed by three years of probation.
3
This amount is equivalent to forty-six and one-half kilograms.
4
In Martin, the defendant’s vehicle ‘‘drove slowly around the lot [where
the delivery was to take place]. [The vehicle] then stopped, and the defen-
dant, who was a passenger in the vehicle, got out of the car. The defendant
was out of the vehicle for fewer than five minutes, during which time he
walked around the lot, casually looking at the vehicles in the lot as he
passed them. He then returned to the vehicle, and . . . left the lot. Shortly
thereafter . . . the package was picked up.’’ (Footnote omitted; internal
quotation marks omitted.) State v. Martin, supra, 285 Conn. 141. After the
package was picked up, the parties entered another parking lot before
returning the way they came in an effort to determine whether they were
being followed by law enforcement. Id., n.8.
5
The defendant claims that in Martin, our Supreme Court also relied on
the fact that the defendant had a criminal history and was facing deportation.
Those facts, however, related to the defendant’s credibility as a witness and
were not directly considered as part of the determination that the defendant
knew that there was marijuana in the package. See State v. Martin, supra,285 Conn. 155. In the present case, the defendant did not testify, and,
therefore, his credibility is not at issue on appeal. See id., 143 n.11.
6
Justice Borden’s concurrence in State v. Pond, 138 Conn. App. 228, 239,
50 A.3d 950, cert. granted, 307 Conn. 933, 56 A.3d 714 (2012), contains a
thorough discussion regarding why more evidence is required to convict a
defendant as a coconspirator as opposed to as an accessory or a principal.
He explains that ‘‘if a defendant is charged either as a principal or an
accessory to robbery in the second degree . . . the state would not be
required to prove that he, or another participant, specifically intended to
possess or display a deadly weapon or dangerous instrument. Yet, if the
defendant is charged with conspiring to commit robbery in the second
degree . . . the state is required to prove that he or another participant
specifically intended to possess or display a deadly weapon or dangerous
instrument.
‘‘The anomaly in these lines of precedent is this: it means that, in charging
the inchoate—or incompleted—crime of conspiracy to commit a particular
offense, the state is required to prove more, by way of mens rea, than it is
required to prove when it charges [the defendant as a principal or an acces-
sory to] the completed crime itself. . . . It is simply anomalous that the
state would be required to prove a greater mens rea for an inchoate crime—
conspiracy—than for the completed crime itself.’’ (Citations omitted; empha-
sis in original; footnote omitted.) Id., 246–47 (Borden, J., concurring).
7
The defendant also argues that this claim should be reviewed because
the allegedly improper jury instruction amounts to plain error. We are not
persuaded that an error exists that is so obvious that it amounts to manifest
injustice or affects the fairness and integrity of and the public confidence
in the judicial proceedings, and, therefore, we decline the defendant’s invita-
tion to reverse his conviction for plain error. See State v. Maskiell, 100
Conn. App. 507, 521, 918 A.2d 293, cert. denied, 282 Conn. 922, 925 A.2d
1104 (2007). Furthermore, we decline to review this claim pursuant to our
supervisory powers, as the defendant has not demonstrated a compelling
reason why the jury instruction under review implicates either the integrity
of this particular trial or the perceived fairness of the judicial system as a
whole. See State v. Luster, 279 Conn. 414, 425–26, 902 A.2d 636 (2006).
8
The state concedes, and we agree, that the defendant’s claim of prosecu-
torial impropriety, although unpreserved, is still reviewable without invoking
State v. Golding, supra, 213 Conn. 233. ‘‘Once prosecutorial impropriety has
been alleged . . . it is unnecessary for an appellate court to review the
defendant’s claim under Golding.’’ (Citation omitted; footnote omitted.)
State v. Fauci, 282 Conn. 23, 33, 917 A.2d 978 (2007).
9
We also note that the court instructed the jury: ‘‘What I tell you, not
what the attorneys tell you is the law that you are to follow. If the law as
I give it to you differs in any way from the claims of law made by counsel,
dismiss from your minds what counsel has said to the extent it differs
from what I tell you.’’ The court’s general instructions to the jury properly
instructed it that arguments by counsel were not evidence. Such an instruc-
tion by the trial court adequately addressed any impropriety that might be
found to have occurred, although none was present in this case. See State
v. Ampero, 144 Conn. App. 706, 724, 72 A.3d 435, cert. denied, 310 Conn.
914, 76 A.3d 631 (2013).
10
Although the defendant’s statement to the police does not establish the
weight of the package, which was an element of the conspiracy charge; see
part I B of this opinion; we still conclude that, given the generous latitude
we afford prosecutors during closing argument, the prosecutor’s comments
were within the limits of legitimate argument in light of the uncontested
evidence that the package weighed over two hundred pounds.
11
Because we conclude that the statements made by the prosecutor in
the present case were not improper, we do not reach the question of whether
any misconduct rose to the level of denying the defendant his right to a fair
trial. See State v. Otto, supra, 76 n.19.