STATE v. KENNETH GOULD, SC 18108

Judicial District of Windham at G.A. 11

 Criminal; Burden of Proof; Whether Defendant Should Bear Burden of Proving Drug Dependency; Whether State v. Hart, 221 Conn. 595 (1992), Should Be Overruled. Following an investigation into the delivery of packages suspected of containing controlled substances, the defendant was charged with various drug offenses, including one count each of possession of marijuana with intent to sell in violation of General Statutes § 21a-277 (b), possession of over one kilogram of marijuana with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b), and possession of marijuana with intent to sell within 1500 feet of a school in violation of General Statutes § 21a-278a (b).  At trial, in order to establish the defendant's drug dependency, a defense applicable to § 21a-278 (b), the defendant and other witnesses testified to his extensive drug use.  At the close of the evidence, the jury was charged that the defendant bore the burden of proving that defense in accordance with State v. Hart, 221 Conn. 595, 607-11 (1992).  In Hart, the court concluded that "the language of [General Statutes] § 21a-269, which places the 'burden of proof' on a defendant invoking the exemption specified by [§]21a-278 (b), requires the defendant to carry the burden of persuading the jury by a preponderance of the evidence that he or she is drug-dependent."  Further, it stated that this requirement comports with federal due process.  After completing its deliberations, the jury found the defendant guilty of all of the charges.  Subsequently, the defendant moved for a judgment of acquittal with respect to the counts alleging violations of §§ 21a-278 (b) and 21a-278a (b).  He contended not only that he established that he was a drug-dependent person, but also that the requirement that he prove drug dependency by a preponderance of the evidence violated his federal and state constitutional rights to due process and a jury trial.  In particular, he claimed that the Hart rule should be overruled in light of recent United States Supreme Court decisions as well as opinions of this court.  The trial court denied the motion.  On appeal, the defendant reiterates that Hart should be overruled because the absence of drug dependency is an element of  § 21a-278 (b), which the state must prove beyond a reasonable doubt.  Relying on Blakely v. Washington, 542 U.S. 296 (2004), he asserts that since the maximum penalty for a violation of § 21a-278 exceeds the maximum penalty for a violation of § 21a-277, his right to a jury trial was violated because his penalty was enhanced without the state being required to prove his lack of drug dependency beyond a reasonable doubt.