STATE v. ROBERT FASANO, AC 23770

Judicial District of New London

 

      Criminal; Whether Trial Court Properly Instructed Jury on Element of Possession; Whether Witness Should Have Been Ordered to Provide her Fingerprints for Impeachment Purposes.  In 2001, police officers executed a search warrant at the defendant's residence.  They discovered in his bedroom closet 100 glassine bags of heroin and a box that contained approximately $19,000.  Thereafter, the defendant was charged with possession of heroin with the intent to sell.  At trial, the defendant attempted to establish that he was not a drug dealer and that the money and narcotics belonged to his business partner.  Notwithstanding these efforts, the jury returned a verdict of guilty.  The defendant subsequently filed the present appeal, arguing that in charging the jury on the element of possession, the trial court improperly stated that "[a]s long as the substance is in a place where it is subject to the defendant's dominion and control, where the defendant can, if he wishes, go and get it, it is in his possession."  He maintains that the court should have stated that a defendant must have the intention, as well as the ability, to exercise dominion and control over the object in question in order to establish constructive possession.  He further contends that the court improperly denied his request that his business partner's wife be ordered to provide her fingerprints, which could have been compared to an unidentified print that had been found on the box.  He reasons that such evidence could have been used to impeach her testimony that she had not opened the box and had not placed the box in the defendant's closet.  In addition, he argues that the court improperly excluded, on hearsay grounds, his business partner's testimony that he had previously told the police that the defendant was not involved in his drug activities.  He maintains that such testimony was admissible as a prior consistent statement to rebut the state's claim of recent fabrication.  The defendant's final claim is that the court should have declared a mistrial because its jury instructions improperly suggested that the money found in the defendant's closet was "drug money."