STATE v. JENNIFER JOHNSON, SC 19062/19139

Judicial District of Ansonia/Milford

 

†††† †Criminal; Whether, on Finding that Convictions and Sentences for Greater and Lesser Included Offenses Violated Double Jeopardy, Appellate Court Properly Ordered Resentencing Under Aggregate Package Theory; Whether Defendant Waived Claim of Jury Instruction Error.† The defendant was convicted of conspiracy to possess narcotics with intent to sell, possession of narcotics, conspiracy to possess narcotics, possession of less than four ounces of marijuana and possession of drug paraphernalia.† She received a total effective sentence of five years imprisonment, execution suspended after eighteen months, with three years of probation.† On appeal, the Appellate Court (137 Conn. App. 733) agreed with the parties that the defendant's separate convictions and sentences for both conspiracy to possess narcotics with intent to sell and the lesser included offense of conspiracy to possess narcotics violated the defendantís constitutional right against double jeopardy.† The Appellate Court determined that the proper remedy was to remand the matter to the trial court with direction to vacate the conviction and sentence for the lesser included offense of conspiracy to possess narcotics.† The Appellate Court further determined that the trial court should resentence the defendant on the conviction for conspiracy to possess narcotics with intent to sell under the aggregate package theory.† Under that theory, a reviewing court must vacate a sentence in its entirety when it invalidates any part of the total sentence and, on remand, the resentencing court may reconstruct the sentencing package or leave the sentence for the remaining valid conviction or convictions intact.† The Appellate Court also found that the defendant implicitly waived her claim that the trial court erred in failing to instruct the jury that her exercise of dominion and control over the narcotics had to be both knowing and intentional to satisfy the requirements of constructive possession. †The Appellate Court explained that although the defendant filed a request to charge with the specific language that she now claims was improperly omitted from the final charging instructions issued to the jury, her request was effectively negated by her subsequent failure to object to various drafts of the instructions and to take exception to the charge as ultimately given.† The Supreme Court granted the defendant certification to appeal and raise the issues of whether the Appellate Court properly determined that she implicitly waived her claim that the jury was improperly instructed as to nonexclusive possession and constructive possession even though she had filed a request to charge for the instructions and, if not, whether the error was harmless.† The Supreme Court also granted the state certification to appeal.† In the stateís appeal, the court will consider whether, in view of its recent decision in State v. Polanco, 308 Conn. 342 (2013), the Appellate Court properly determined that the defendant had to be resentenced, under the aggregate package theory, on the greater offense of conspiracy to possess narcotics with intent to sell.