author: NORCOTT, J. KATZ, J.,

text:
    STATE OF CONNECTICUT v. CHARLES WILLIAMS
    (SC 16415)
    Sullivan, C. J., and Norcott, Katz, Palmer and Zarella, Js.
    Argued May 30
    officially released September 4, 2001

      Robin S. Schwartz, special deputy assistant state’s attorney, with whom, on the brief, were James Thomas, state’s attorney, and George Ferko, assistant state’s attorney, for the appellant (state).

      Carlos E. Candal, special assistant public defender, with whom, on the brief, was Mark Rademacher, assistant public defender, for the appellee (defendant).
   Opinion

NORCOTT, J.

The state appeals, following a grant of certification, from the judgment of the Appellate Court reversing the conviction of the defendant, Charles Williams, on the charge of criminal possession of a firearm in violation of General Statutes (Rev. to 1999) § 53a-217. The state claims that the Appellate Court improperly determined that the trial court inappropriately had refused the defendant’s requested jury instruction regarding the doctrine of nonexclusive possession. State v. Williams, 59 Conn. App. 771, 785, 758 A.2d 400 (2000). The state also claims that the trial court’s failure to provide the jury with the requested instruction, if improper, was harmless. We conclude that, under the circumstances of this case, the defendant was not entitled to an instruction regarding the doctrine of nonexclusive possession and, therefore, we reverse the judgment of the Appellate Court.

The opinion of the Appellate Court contains the following facts that a jury reasonably could have found. “On January 26, 1999, Officer Andrew Lawrence of the Hartford police department was driving in his patrol car when he observed the defendant drive through a stop sign. Lawrence activated his lights and siren, called for backup and pursued the defendant. The defendant pulled into a driveway, got out of the car and knocked on the door or rang the doorbell of a [private] home. Soon thereafter, the defendant walked away from the house and proceeded down the street, leaving the car in the driveway.

“Lawrence did not follow the defendant. Instead, while monitoring the defendant as he was walking away, Lawrence approached the vehicle and looked through the car window. Inside, he saw a .38 caliber semiautomatic pistol on the driver’s seat. Once backup officers arrived, Lawrence pursued the defendant while the car was secured by the other officers. Lawrence caught up with the defendant, who had since rounded a street corner, and arrested him.

“The state filed a two count information alleging that the defendant used a motor vehicle without the owner’s permission in violation of General Statutes § 53a-119b (a) (l) and that the defendant was in criminal possession of a firearm in violation of § 53a-217 (a) (1). On May 25, 1999, the defendant filed a motion to suppress all items seized by the police. The trial court’s signed oral decision on the motion to suppress focused on the issue of whether the ‘viewing of a weapon in plain view of the driver’s seat of a vehicle [constituted] probable cause to arrest the operator of said vehicle for the crime of weapon in a motor vehicle in violation of [General Statutes] § 29-38 . . . .’ The court denied the motion on July 16, 1999.” Id., 773. A jury trial commenced on July 20, 1999.

“At the end of the state’s case, the defendant moved for a judgment of acquittal on both counts. The trial court granted the motion as to the first count of using a motor vehicle without the owner’s permission, but denied the motion as to the second count of criminal possession of a firearm.” Id., 774.

Thereafter, the defendant presented evidence “to dispute the issue that the weapon found in the car was in his exclusive possession.* *** At the time of his arrest, the defendant [allegedly had been seen by Lawrence] driving a rental car owned by National Car Rental. Tammy Dinatale, a representative of National Car Rental, testified that at the time the weapon was found in the car, the vehicle was rented to another individual, [Kirk] Scott.

“The defense also presented Madeline Williams, the defendant’s sister, as a witness. Williams testified [that at] approximately 9 a.m. on the morning of the defendant’s arrest, Williams drove herself and the defendant out to breakfast in her own car. Afterwards, the defendant asked Williams to bring him to a friend’s house, Scott, to get a compact disc [that he previously had loaned to Scott].” Id., 783-84. According to Williams, she and “the defendant drove to Scott’s house, and Williams accompanied the defendant to Scott’s residence. Scott handed the defendant a key to the rental car. Williams and the defendant then proceeded to the rental car to retrieve the compact disc from the vehicle. At that point, before Williams and the defendant reached the vehicle, the officer approached the defendant and arrested him.” Id., 784.

“On July 20, 1999, the defendant filed a request to charge the jury on the theory of nonexclusive possession, which was denied the following day by the court. The jury returned a guilty verdict on July 21, 1999.” Id., 774. The defendant then filed a postverdict motion for judgment of acquittal. Id. The trial court denied that motion and rendered judgment in accordance with the jury verdict sentencing the defendant to five years imprisonment.

The defendant appealed to the Appellate Court, claiming that the trial court improperly had: (1) denied his motion to suppress; (2) denied his motion for judgment of acquittal; and (3) refused to instruct the jury concerning the defense of nonexclusive possession. Id., 772. The Appellate Court held that the trial court properly had denied the defendant’s motion to suppress and his motion for judgment of acquittal. Id., 776, 778. The Appellate Court concluded, however, that the trial court improperly had refused to instruct the jury on the defendant’s theory of nonexclusive possession. Id., 778. According to the Appellate Court, the testimony of Williams “contradicted the sequence of events offered by the state and raised the issue of the defense of nonexclusive possession.” Id., 784. The Appellate Court, therefore, reversed the judgment of conviction and remanded the case for a new trial. Id., 785. This certified appeal followed.

We granted the state’s petition for certification to appeal limited to the following issues: “(1) Did the Appellate Court properly conclude that the defendant was entitled to a jury instruction regarding the doctrine of nonexclusive possession? (2) If the answer to question one is ‘yes,’ was the error harmless?” State v. Williams, 254 Conn. 952, 762 A.2d 906 (2000). We conclude that the defendant was not entitled to a jury instruction regarding the doctrine of nonexclusive possession and, accordingly, we reverse the judgment of the Appellate Court.

The state contends that a jury instruction regarding the doctrine of nonexclusive possession was not warranted because there was no evidence produced at trial to support the claim that the defendant and at least one other individual shared joint access to the weapon. The defendant, however, insists that the Appellate Court properly determined that he was entitled to the requested instruction because there was evidence presented that, if believed, would support a finding that he did not have exclusive possession of the vehicle in which the weapon was found. We agree with the state.

“Where the defendant is not in exclusive possession of the premises where the [illegal item is] found, it may not be inferred that [the defendant] knew of the presence of the [illegal item] and had control of [it], 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) . . . .” (Citation omitted; internal quotation marks omitted.) State v. Delossantos, 211 Conn. 258, 277, 559 A.2d 164, cert. denied, 493 U.S. 866, 110 S. Ct. 188, 107 L. Ed. 2d 142 (1989); see State v. Berger, 249 Conn. 218, 225, 733 A.2d 156 (1999) (same); State v. Alfonso, 195 Conn. 624, 633, 490 A.2d 75 (1985) (same). The doctrine of nonexclusive possession “was designed to prevent a jury from inferring a defendant’s possession of [an illegal item] solely from the defendant’s nonexclusive possession of the premises where the [illegal item was] found.” State v. Nesmith, 220 Conn. 628, 636 n.11, 600 A.2d 780 (1991). When the doctrine applies, an instruction focuses the jury’s attention on the defendant’s knowledge and intent to possess, precluding it from inferring possession from the mere fact that the defendant, along with others, occupied or had access to the premises wherein the contraband was found. See United States v. McKissick, 204 F.3d 1282, 1291 (10th Cir. 2000) (proof of nonexclusive constructive possession alone insufficient to justify implication of knowledge; state must present some corroborating evidence of knowledge); Chicone v. State, 684 So. 2d 736, 740 (Fla. 1996) (same); see also State v. Hill, 201 Conn. 505, 516, 523 A.2d 1252 (1986) (“[t]he essence of exercising control is not the manifestation of an act of control but instead it is the act of being in a position of control coupled with the requisite mental element”).

“As a general rule, a defendant is entitled to have instructions on a defense for which there is evidence produced at trial to justify the instruction, no matter how weak or incredible the claim.” State v. Varszegi, 236 Conn. 266, 282, 673 A.2d 90 (1996); see State v. Havican, 213 Conn. 593, 597, 569 A.2d 1089 (1990) (“ ‘[i]f the defendant asserts a recognized legal defense and the evidence indicates the availability of that defense, such a charge is obligatory and the defendant is entitled, as a matter of law, to a theory of defense instruction’ ”). As a specific matter, in deciding whether the trial court improperly failed to provide the jury instruction on nonexclusive possession of the premises, as requested by the defendant, “we must adopt the version of the facts most favorable to the defendant which the evidence would reasonably support.” (Internal quotation marks omitted.) State v. Henning, 220 Conn. 417, 428, 599 A.2d 1065 (1991); see also State v. Lewis, 245 Conn. 779, 810, 717 A.2d 1140 (1998); State v. Edwards, 234 Conn. 381, 389, 661 A.2d 1037 (1995).

Our decision in State v. Nesmith, supra, 220 Conn. 628, is illustrative of these principles and presents a similar scenario to the present case. In Nesmith, the defendant had been charged with possession of narcotics in conjunction with his arrest in a vacant apartment known by police to harbor drug users. Id., 629-30. At the time of his arrest, from six to eleven people had occupied the front room of the abandoned apartment. Id., 630. Upon seeing the police enter, the defendant attempted to move toward an unoccupied room in the rear of the apartment. Id. An officer pursued the defendant into the empty room and witnessed him drop something to the floor. Id. After restraining the defendant and ordering him to return to the front room where other officers had detained the other occupants of the apartment, the officer investigated the back room further and found a number of envelopes and plastic vials containing narcotics on the floor. Id.

The defendant’s testimony at trial directly contradicted the state’s version of the facts. According to the defendant, he was waiting for a friend in the hallway outside the apartment when a police officer grabbed him and brought him inside the apartment. Id., 630-31. The defendant claimed that he was then directed to sit on the floor with approximately eleven other detainees. Id., 631. While sitting with the other detainees, the defendant explained, he had observed the man next to him drop the narcotics. Id. The defendant, therefore, requested a jury charge on the doctrine of nonexclusive possession. Id., 633. The trial court refused to provide such a charge and the defendant was convicted. Id.

In affirming the judgment of conviction, the Appellate Court reasoned that “[t]he common factor in cases that have applied [the doctrine of nonexclusive possession] is the fact that the narcotic substances were accessible to others and were found in areas that were also occupied by others.” State v. Nesmith, 24 Conn. App. 158, 161, 586 A.2d 628 (1991). The Appellate Court noted, however, that the defendant had been charged only with possession of the narcotics found in the back room. Because no evidence was adduced at trial to demonstrate that any other person had been present in the back room, the situation was not one involving nonexclusivity. Id., 161-62. Thus, the Appellate Court concluded that the trial court properly refused to give the requested charge. Id., 162.

We affirmed the Appellate Court, explaining that the version of the facts most favorable to the defendant “established possession of the narcotics without requiring that the jury draw an inference based solely on the defendant’s presence on the premises.” State v. Nesmith, supra, 220 Conn. 633-34. We acknowledged that two conflicting stories had been presented through the evidence, each of which identified a different individual as the person discarding the drugs. Id., 635-36. The jury, as fact finder, was entitled to believe the story that it found credible. We concluded that “there was no risk that the jury would infer the defendant’s possession of the drugs from the mere fact that he was in nonexclusive possession of the premises because the evidence established that either the defendant or another detainee identified by the defendant discarded the drugs.” Id., 636 n.ll.

In the present case, we are faced with two mutually exclusive accounts of the facts, neither of which require a charge regarding nonexclusive possession. We review these conflicting accounts seriatim.

The defendant presented evidence that he and his sister drove to Scott’s residence, in a vehicle other than the rental car that Lawrence allegedly had seen the defendant driving, in order to retrieve a compact disc. Once arriving at Scott’s residence, the defendant borrowed Scott’s key and proceeded to the rental car. It was at that point, before the defendant had ever reached the rental car, that he was arrested. This version of the facts, taken in the light most favorable to the defendant, supports a conclusion that the defendant was never in the vehicle in which the weapon was recovered. Thus, the defendant’s claim should not be categorized as one of nonexclusive possession, but more appropriately as one of no possession at all.

The doctrine of nonexclusive possession provides that “where there exists access by two or more people to the [contraband] in question, there must be something more than the mere fact that [contraband was] found to support the inference that the [contraband was] in the possession or control of the defendant.” State v. Nesmith, supra, 24 Conn. App. 161. Thus, the charge is appropriate in circumstances where the defendant has possession of the premises along with at least one other individual. The defendant’s version of the facts, however, calls for neither a conclusion of joint nor exclusive access to the vehicle, but rather one of no access. The nonexclusive possession doctrine is typically implicated where the defendant admits that he had access to the premises, but denies that he had possession of the illegal item. See, e.g., State v. Delossantos, supra, 211 Conn. 262 (defendant was sole occupant of vehicle that contained cocaine hidden in rear of car, but denied knowledge of its presence); State v. Alfonso, supra, 195 Conn. 634 (defendant present in apartment where marijuana found, but denied ownership). Under the defendant’s theory, however, he never had access to the premises. The nonexclusive possession doctrine, therefore, is inapplicable to the defendant’s version of the facts.

Even if we adopt the state’s version of the facts as those most favorable to the defendant, as the defendant appears to argue, a nonexclusive possession charge was not required. The state presented evidence that Lawrence observed the defendant exit the vehicle, he peered through the car window, and he saw a weapon located on the driver’s seat. In doing so, the state conceded that the defendant was not in physical possession of the firearm at the time of his arrest and acknowledged that, in order to establish possession of the firearm for a conviction under § 53a-217 by constructive possession, it was required to prove beyond a reasonable doubt that the defendant had exercised intentional dominion and control over the firearm and that he had knowledge of its character. See General Statutes § 53a-3 (2); State v. Hill, supra, 201 Conn. 516 (concluding with respect to constructive possession that “control must be exercised intentionally and with knowledge of the character of the controlled object”).

If the defendant had driven the vehicle and the weapon was located on the driver’s seat, as alleged by the state, then either the defendant was sitting on the weapon while driving or he placed the weapon on the driver’s seat as he exited the vehicle. Either act demonstrates that the defendant had dominion and control over the weapon with knowledge of its character, thereby establishing possession. See General Statutes § 53a-3 (2). This court previously has explained that “ [t]he essence of exercising control is not the manifestation of an act of control but instead it is the act of being in a position of control coupled with the requisite mental intent. In our criminal statutes involving possession, this control must be exercised intentionally and with knowledge of the character of the controlled object.” State v. Hill, supra, 201 Conn. 516. Thus, if believed, the state’s evidence supports a conclusion that the defendant exhibited the requisite control and knowledge of the weapon necessary to establish possession.

The defendant contends that the state’s evidence, coupled with the fact that Scott rented the vehicle and lived nearby, warranted a nonexclusive possession charge. lie relies on State v. Delossantos, supra, 211 Conn. 258, for support of this proposition. In Delossantos, the defendant, who was the sole occupant of a borrowed vehicle, was pulled over by the police for traveling in excess of the posted speed limit. Id., 261. As a result of the stop and subsequent search of the vehicle, a bag containing cocaine was discovered hidden underneath a leather cover in the hatchback area of the vehicle. Id., 262. The defendant was charged with possession of cocaine with intent to sell. Id., 260. He testified at trial that he was unaware of the presence of cocaine in the vehicle. Id., 262. The jury found the defendant guilty and he appealed, claiming that the court erred with respect to its jury instructions on constructive possession. Id., 276. This court concluded that the trial court properly instructed the jury that “ ‘[i]f the defendant was not in exclusive possession of the car where the narcotics were found at the time he was apprehended, it may not be inferred that the defendant knew of the presence of the narcotics and had control over them unless there are other incriminating statements, evidence or circumstances tending to buttress such an inference.’ ” Id., 277. Thus, the jury was not permitted to infer, without some evidence, that the defendant knew that cocaine was hidden in the rear of the car. The defendant’s attempt to liken the present case to the situation in Delossantos is misplaced.

Unlike Delossantos, the item in question in the present case was not secreted, but rather was in plain view. Under the state’s version of the facts, the defendant either sat on the weapon or placed it on the driver’s seat as he exited the vehicle. Based on the evidence, no one else had access to the vehicle between the time that Lawrence had witnessed the defendant driving, and the officer’s discovery of the firearm. “The evidence thus established possession of the [weapon] without requiring that the jury draw an inference based solely on the defendant’s presence [in the vehicle].” State v. Nesmith, supra, 220 Conn. 634. Moreover, it would have been improper under these circumstances for the court to have instructed the jury on nonexclusive possession because the evidence would not have supported a finding that there was joint or simultaneous access to a weapon that the defendant either sat upon or held. See State v. Diggs, 219 Conn. 295, 299, 592 A.2d 949 (1991) (“[t]he court . . . has a duty not to submit to the jury, in its charge, any issue upon which the evidence would not reasonably support a finding”). Accordingly, there was no need for a nonexclusive possession charge.

The cumulative evidence offered in this case reasonably could support two mutually exclusive versions of what transpired prior to the defendant’s arrest. Either the defendant was never in the vehicle, or he was in it and, because of the weapon’s location on the driver’s seat, was in sole possession of the weapon. The jury, as fact finder, was entitled to accept the version of the facts that it found credible. Neither version, however, evidences the defendant’s nonexclusive possession of the weapon. “[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 . . . .” (Internal quotation marks omitted.) State v. Havican, supra, 213 Conn. 597. We conclude that no such foundation was established and, therefore, the trial court properly denied the defendant’s request to charge the jury on nonexclusive possession.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to affirm the judgment of the trial court.

In this opinion SULLIVAN, C. J., and PALMER and ZARELLA, Js., concurred.

KATZ, J.,

dissenting. In this certified appeal, the state claims that the Appellate Court improperly determined that the trial court improperly had refused the defendant’s requested jury instruction* regarding the doctrine of nonexclusive possession. It further claims that the trial court’s failure to provide the jury with the requested instruction, if improper, constituted harmless error. The majority agrees with the state that the trial court’s decision not to give the requested instruction was proper. I disagree, and therefore respectfully dissent.

I

Because the defendant was not in physical possession of the firearm at the time of his arrest, the state acknowledges, as it must, that, in order to establish possession of the firearm for a conviction under General Statutes (Rev. to 1999) § 53a-217 by constructive possession, it was required to prove beyond a reasonable doubt that the defendant had exercised intentional dominion and control over the firearm and that he had knowledge of its character. See General Statutes § 53a-3 (2);* State v. Hill, 201 Conn. 505, 516, 523 A.2d 1252 (1986) (concluding with respect to constructive possession that “control must be exercised intentionally and with knowledge of the character of the controlled object”). Although the majority recognizes that a criminal defendant is entitled to a jury instruction on a defense if there is any evidence presented at trial impheating that defense, in my opinion, it fails to adhere to that principle. Although the majority recognizes that it must view the evidence in the light most favorable to the defendant, it examines that evidence in a light that would support an acquittal, rather than simply in a manner that would gauge whether the defendant was entitled to a jury instruction on the doctrine of nonexclusive possession.

“As a general rule, a defendant is entitled to have instructions on a defense for which there is evidence produced at trial to justify the instruction, no matter how weak or incredible the claim.” State v. Varszegi, 236 Conn. 266, 282, 673 A.2d 90 (1996); see State v. Havican, 213 Conn. 593, 597, 569 A.2d 1089 (1990) (“[i]f the defendant asserts a recognized legal defense and the evidence indicates the availability of that defense, such a charge is obligatory and the defendant is entitled, as a matter of law, to a theory of defense instruction” [internal quotation marks omitted]). Specifically, in deciding whether the trial court improperly failed to provide the jury instruction on nonexclusive possession of the premises, as requested by the defendant, “we must adopt the version of the facts most favorable to the defendant which the evidence would reasonably support.” (Internal quotation marks omitted.) State v. Henning, 220 Conn. 417, 428, 599 A.2d 1065 (1991); see also State v. Lewis, 245 Conn. 779, 810, 717 A.2d 1140 (1998); State v. Edwards, 234 Conn. 381, 388, 661 A.2d 1037 (1995).

The state claims that “the evidence presented by the defendant did not permit a finding that [he] and Kirk Scott [the lessee of the vehicle] jointly had or previously had access to the car [and the firearm, but, rather] . . . the defendant’s theory of the case was that, although he briefly possessed the key to [the] car, he could not have placed the gun on the front seat because Scott had sole access to the vehicle.” On the basis of this view of the evidence, the state contends, and the majority agrees, that the Appellate Court’s conclusion in this case conflicts with the Appellate Court’s decision in State v. Nesmith, 24 Conn. App. 158, 586 A.2d 628, aff'd, 220 Conn. 628, 600 A.2d 780 (1991) (affirming conviction for possession of narcotics where trial court refused to charge jury on nonexclusive possession), and this court’s affirmance thereof. I disagree.

At trial in Nesmith, the defendant argued that another detainee in the apartment in which the defendant had been arrested had dropped the narcotics at issue therein and he requested a jury charge on the doctrine of nonexclusive possession, which the trial court refused to provide. Id. In affirming the judgment of conviction, the Appellate Court reasoned that “[t]he common factor in cases that have applied [the doctrine of nonexclusive possession] is the fact that the narcotic substances were accessible to others and were found in areas that were also occupied by others.” Id., 161. The Appellate Court concluded that, because the defendant had been charged with possession of the narcotics found in the back room of the apartment, which he alone had occupied, the evidence did not implicate sufficiently the doctrine of nonexclusive possession to warrant a jury instruction thereon. Id., 161-62.

This court affirmed the Appellate Court, concluding that the evidence presented by the defendant “established possession of the narcotics without requiring that the jury draw an inference based solely on the defendant’s presence on the premises.” State v. Nesmith, 220 Conn. 628, 634, 600 A.2d 780 (1991). “[T]he conflicting stories [presented by] the defendant and the state’s witnesses both identified a specific person in possession of the drugs: the defendant, [whom the police officer] observed discarding an object later retrieved and identified as narcotics, or another detainee, who, according to the defendant, [had discarded] several glassine envelopes on the floor next to the defendant.” Id., 636. In Nesmith, “there was no risk that the jury would infer the defendant’s possession of the drugs from the mere fact that he was in nonexclusive possession of the premises because the evidence established that either the defendant or another detainee identified by the defendant [had] discarded the drugs.” Id., 636 n.ll. Thus, this court concluded that the defendant had not been entitled to a jury instruction on nonexclusive possession. Id., 634.

In the present case, the defendant presented evidence at trial that he had received the key to the car from Scott, but that he had not yet entered the vehicle at the time of his arrest. Tammy Dinatale, a representative from National Car Rental (National), testified that National owned the vehicle, and that during the time that the vehicle had been leased to Scott, he had notified National that the vehicle had been stolen. Dinatale testified further that Scott had called back one and one-half hours later to say that the car had not been stolen, but that he simply had loaned it to a friend. Thus, the evidence presented to the jury established that, not only Scott, but potentially others, had access to the vehicle wherein the firearm was found. During the closing argument, defense counsel argued to the jury that “it could have been somebody else’s gun [someone other than] Kirk Scott, maybe a friend of his. . . . Who’s to say how many people were in and out of [the] car?”

In Nesmith, an instruction on nonexclusive possession was not warranted because the evidence presented to the jury established that it was either the defendant who had possessed the narcotics or another identified detainee in the immediate vicinity. There was no danger that the jury would have inferred possession of the contraband based solely on the fact that the defendant, along with others, had occupied the vacant apartment wherein the officers had discovered the contraband. State v. Nesmith, supra, 220 Conn. 635. In this case, the evidence showed either that: (1) the defendant had exclusive possession of the car immediately before his arrest, which would have permitted the jury to infer that the defendant constructively possessed the firearm therein; see, e.g., United States v. Finley, 245 F.3d 199, 203 (2d Cir. 2001) (“[d]ominion, control, and knowledge may be inferred [from] a defendant’s exclusive possession of the premises” [internal quotation marks omitted]); or (2) the defendant, through possession of the key to the vehicle rented by Scott, who at one point had reported it stolen, had nonexclusive possession of the vehicle, which would have precluded an inference of possession of the firearm in the absence of other evidence linking the defendant to the weapon to support such an inference. See State v. Nesmith, supra, 220 Conn. 633; State v. Delossantos, 211 Conn. 258, 277, 559 A.2d 164, cert. denied, 493 U.S. 866, 110 S. Ct. 188, 107 L. Ed. 2d 142 (1989).

It bears emphasizing that the issue in this case is not whether there was sufficient evidence to support a conclusion that the state proved beyond a reasonable doubt the required elements necessary for a conviction. As the majority noted in its opinion, the “evidence supports a conclusion that the defendant exhibited the requisite control and knowledge of the weapon to establish possession.” Rather, the issue is whether there was any evidence presented at trial, “no matter how weak or incredible,” that would have justified the requested jury instruction. State v. Varszegi, supra, 236 Conn. 282. In my opinion, because the majority loses sight of the fact that the evidence must be viewed in the light most favorable to the defendant that would support a requested jury instruction, it concludes that the defendant’s possession of the key to the vehicle is irrelevant, as it was “entirely consistent with his theory of defense . . . .” See footnote 9 of the majority opinion.

Additionally, I disagree with the majority’s analysis concerning the issue of the defendant’s access to the vehicle. The majority asserts that “[t]he nonexclusive possession doctrine is typically implicated where the defendant admits that he had access to the premises” and it maintains that “[u]nder the defendant’s theory [of the case] ... he never had access to the premises.” In this regard, the majority equates the defendant’s ability to access the vehicle through possession of the key with actually having accessed the vehicle prior to his arrest. Although I agree that the defendant argued that he had not yet accessed the vehicle, the question whether he actually had done so, to me, is not dispositive of whether he is entitled to a jury charge on nonexclusive possession. This is particularly true where, as here, the state concedes that it prosecuted the defendant on a theory of constructive possession of the firearm and the trial court charged the jury accordingly.

In this case, possession of the key to the vehicle linked the defendant to the firearm contained therein. See State v. Graham, 186 Conn. 437, 445, 441 A.2d 857 (1982); cf. State v. Chisolm, 165 Conn. 83, 85, 328 A.2d 677 (1973) (insufficient evidence for conviction of possession of narcotics where “the only evidence of the defendant’s culpability was that he had a key which unlocked a padlock to a bin in the cellar of a multiple dwelling which he owned but in which he did not live and the additional fact that narcotics were found in the bin”). The defendant’s ability to access and exercise control over the firearm through possession of the key to the unoccupied vehicle was but one factor comprising constructive possession. See State v. Hill, supra, 201 Conn. 516. “The essence of exercising control is not the manifestation of an act of control but instead it is the act of being in a position of control coupled with the requisite mental intent.” (Emphasis added.) Id. (refusing to construe phrase “to exercise dominion or control” as referring only to situation where individual has exercised control). Indeed, as the majority aptly recognizes, a jury instruction on nonexclusive possession focuses the jury’s attention on the other aspects of constructive possession—knowledge and intent to exercise control. Therefore, because the defendant, by possessing the key to the vehicle, had the ability to access and control the firearm, I would conclude that he was entitled to the requested instruction on nonexclusive possession.

The state also contends that in order for the doctrine to apply, there must be evidence that the defendant and others not only had access to the location where the firearm was found, but that they jointly occupied that location. In this case, however, at the time that the police discovered the firearm in the vehicle and arrested the defendant some distance from the scene, no one occupied the vehicle. As noted previously, the state concedes that it prosecuted the defendant based solely on his constructive possession of the firearm because, although the state alleged that the officer had witnessed the defendant driving the vehicle, the officer never actually saw the defendant with the firearm. In essence, the state’s theory at trial was that the defendant had been in exclusive possession of the vehicle immediately preceding his arrest. The state contends that, because no one else had access to the vehicle between the time that the officer allegedly had witnessed the defendant driving, and the officer’s discovery of the firearm, the defendant constructively possessed the firearm. The defendant, however, claimed that he merely had possessed the key to the car and that others had access to the vehicle. Given these conflicting versions of the events, and particularly because no one occupied the vehicle at the time that the officer discovered the firearm and apprehended the defendant, I would conclude that it was for the jury to determine whether the defendant had been in exclusive or nonexclusive possession of the vehicle. See State v.Delossantos, supra, 211 Conn. 276-77 (characterizing trial court’s instruction on nonexclusive possession as “correct” where defendant was sole occupant of vehicle owned by another individual and narcotics found hidden in hatchback of car; inference of possession of narcotics permissible if jury determined that defendant had exclusive possession of vehicle).

Because the defendant possessed the key to the unoccupied vehicle, which was owned by a corporation and leased to yet another individual, and he was apprehended some distance from the firearm, the jury should have been instructed to determine whether the defendant was in exclusive or nonexclusive possession of the vehicle. In the absence of an instruction requiring it to consider the character of the defendant’s possession of the vehicle, the jury potentially was permitted to draw improper inferences concerning the defendant’s possession of the firearm. In this case, if the jury con-eluded that, contrary to the state’s theory, the defendant had not possessed the vehicle exclusively just prior to his arrest, the requested instruction would have ensured that any conviction under § 53a-217 was predicated upon more than “the defendant’s nonexclusive possession of the premises where the [firearm was] found”; State v. Nesmith, supra, 220 Conn. 636 n.11; and would have required the jury to consider “other incriminating statements or circumstances tending to buttress [the] inference” of possession of the firearm. (Internal quotation marks omitted.) Id., 633. Accordingly, I would conclude that the Appellate Court properly determined that the defendant was entitled to an instruction on nonexclusive possession.

II

Although the majority never reaches the second certified issue in this case; see footnote 8 of the majority opinion; I would conclude that omitting the requested instruction on nonexclusive possession alleviated the state’s burden of proof on the element of possession and that the trial court’s failure to so instruct the jury cannot withstand harmless error analysis.

“An improper instruction on a defense, like an improper instruction on an element of an offense, is of constitutional dimension.” (Internal quotation marks omitted.) State v. Lemoine, 256 Conn. 193, 198-99, 770 A.2d 491 (2001); see State v. Taylor, 239 Conn. 481, 512, 687 A.2d 489 (1996), cert. denied, 521 U.S. 1121, 117 S. Ct. 2515, 138 L. Ed. 2d 1017 (1997) (noting that jury instruction that dilutes state’s burden of proof is unconstitutional); State v. Wolff, 237 Conn. 633, 669, 678 A.2d 1369 (1996) (due process requires for conviction proof beyond reasonable doubt of every fact necessary for crime charged). “The United States Supreme Court has recognized that most constitutional errors can be harmless. . . . Neder v. United States, 527 U.S. 1, 8, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999) . . . .” (Citation omitted; internal quotation marks omitted.) State v. Anderson, 255 Conn. 425, 444, 773 A.2d 287 (2001). “If an impropriety is of constitutional proportions, the state bears the burden of proving that the error was harmless beyond a reasonable doubt.” State v. Cavell, 235 Conn. 711, 720, 670 A.2d 261 (1996).

“An alleged defect in a jury charge which raises a constitutional question is reversible error if it is reasonably possible that, considering the charge as a whole, the jury was misled. ” (Internal quotation marks omitted.) State v. Spillane, 255 Conn. 746, 757, 770 A.2d 898 (2001); see also State v. Cerilli, 222 Conn. 556, 584 n.16, 610 A.2d 1130 (1992) (“perceiv[ing] no functional difference” between harmless error standard requiring court to determine, on whole record, whether constitutional error harmless beyond reasonable doubt, and standard of whether there was no reasonable possibility that jury was misled). “In performing harmless error analysis, we keep in mind that [i]n determining whether it was indeed reasonably possible that the jury was misled by the trial court’s instructions, the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge.” (Internal quotation marks omitted.) State v. Spillane, supra, 757; State v. Anderson, 227 Conn. 518, 532, 631 A.2d 1149 (1993) (charge considered from standpoint of its effect on jury in guiding it to proper verdict).

In this case, the trial court charged the jury that “ [possession is defined as intentional dominion and control over the firearm accompanied by knowledge of its character. Mere presence in the vicinity of the firearm, however, is not enough to establish possession.” The state contends that the overall charge, including the instructions that the state was required to prove the elements of the crime beyond a reasonable doubt and that the defendant was not required to prove his innocence, adequately informed the jury and properly guided it to a verdict. The state also claims that, because the defendant’s theory of the case was that he had not entered the car and had no knowledge of the gun, the trial court’s instruction defining possession as intentional and knowing dominion and control required the jury to find that the defendant knew of the presence and character of the firearm in order to convict him under § 53a-217. I disagree.

Although the trial court’s jury charge was a correct statement of the law regarding constructive possession; see, e.g., State v. Hill, supra, 201 Conn. 515; State v. Kas, 171 Conn. 127, 130-31, 368 A.2d 196 (1976); I am not convinced that the failure to provide further guidance to the jury, as the defendant requested, with respect to the defendant’s claimed nonexclusive possession of the vehicle and constructive possession of the firearm, was harmless beyond a reasonable doubt. The evidence at trial concerning the defendant’s possession of the firearm was neither uncontested nor overwhelming. See Neder v. United States, supra, 527 U.S. 17 (“where a reviewing court concludes beyond a reasonable doubt that [an] omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error, the erroneous instruction is properly found to be harmless”). Indeed, because the defendant stipulated to the fact that he had been convicted of a felony in the past, possession of the firearm and its operability were the only disputed issues at trial.

It is important to remember that no one occupied the vehicle at the time that the gun was discovered therein. Under the state’s theory, the jury was required to infer the defendant’s constructive possession of the firearm from his possession of the vehicle. A critical question for the jury to decide, therefore, was whether the defendant had been in exclusive possession of the vehicle immediately preceding his arrest, as the state had claimed, or whether he simply possessed the key and was not in exclusive possession. See State v. Delossantos, supra, 211 Conn. 277-78 (noting that “ ‘[o]ne who owns or exercises dominion or control over a motor vehicle in which [contraband] is concealed may be deemed to possess the contraband’ jury properly instructed that it may infer possession of contraband if defendant in exclusive possession of vehicle). If the jury determined that the defendant had not been in exclusive possession of the vehicle, then an inference that he had possessed the firearm would have been impermissible unless there were “other incriminating statements or circumstances tending to buttress such an inference.” (Internal quotation marks omitted.) State v. Berger, 249 Conn. 218, 225, 733 A.2d 156 (1999); State v. Alfonso, 195 Conn. 624, 633, 490 A.2d 75 (1985). The issue of whether the defendant had been in nonexclusive possession of the vehicle, and hence of the firearm, turned largely on the credibility of the witnesses. See State v. Morant, 242 Conn. 666, 682, 701 A.2d 1 (1997) (credibility of witnesses for jury to determine). The inferences that the jury properly could have drawn from its determination of that issue, however, are circumscribed by law. State v. Berger, supra, 225.

Although the evidence here suggested that the defendant was attempting to retrieve a personal item from the vehicle, there was no other evidence concerning the location of that item to the firearm. See, e.g., State v. Stiles, 128 N.H. 81, 86, 512 A.2d 1084 (1986) (noting that evidence of personal possessions of defendant standing in close proximity to contraband may provide sufficiently close nexus between defendant and contraband to allow jury to infer possession). Virtually no other incriminating statements or circumstances were presented in this case that would have buttressed an inference that the defendant constructively possessed the firearm. The entire case hinged on the surmise that the defendant possessed the firearm by possessing the car, and the characterization of the defendant’s possession of the vehicle, as exclusive or nonexclusive, was crucial with respect to the proper inferences that the jury could have drawn concerning possession of the firearm.

Without a proper instruction guiding the jury to make the proper inferences concerning possession of the firearm, separate from its determination of whether the defendant had possessed the vehicle exclusively or non-exclusively, I cannot conclude, beyond a reasonable doubt, that the jury was precluded from drawing an improper inference concerning the defendant’s possession of the firearm. That is, in the absence of an instruction directing the jury that, if it determined that the defendant was not in exclusive possession of the vehicle, it could not draw an inference that the defendant possessed the firearm unless there were other statements or circumstances supporting the conclusion that he possessed the gun, I cannot conclude, beyond a reasonable doubt, that the jury was not misled. The trial court’s instruction in this case was not sufficient to guide the jury in determining the issue of possession of the firearm and, accordingly, the failure to instruct the jury as the defendant requested was not harmless. State v. Anderson, supra, 255 Conn. 444 (harmless error doctrine “essential to preserve the principle that the central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence, and promotes public respect for the criminal process by focusing on the underlying fairness of the trial” [internal quotation marks omitted]).

Accordingly, I dissent.

       General Statutes (Rev. to 1999) § 53a-217 (a) provides in relevant part: “A person is guilty of criminal possession of a firearm or electronic defense weapon when he possesses a firearm or electronic defense weapon and (1) has been convicted of ... a class D felony . . . .”

       See, e.g State v. Alfonso, 195 Conn. 624, 633, 490 A.2d 75 (1985) (concluding that, if defendant not in exclusive possession of premises where contraband found, jury may not infer that defendant knew of presence of contraband and had control thereof “ ‘unless there are other incriminating statements or circumstances tending to buttress such an inference’ ”).

       General Statutes § 53a-119b (a) provides in relevant part: “A person is guilty of using a motor vehicle without the owner’s permission when: (1) He operates or uses, or causes to be operated or used, any motor vehicle unless he has the consent of the owner . . .

       The defendant sought to suppress the firearm and ammunition as well as items seized from his person following a search incident to his arrest, including a cellular telephone and $1890 in cash. The defendant also sought to suppress evidence concerning the key to the vehicle that had been found in his pocket

       General Statutes § 29-38 provides in relevant part: “(a) Any person who knowingly’ has, in any vehicle owned, operated or occupied by such person, any weapon, any pistol or revolver for which a proper permit has not been issued as provided in section 29-28 or any machine gun which has not been registered as required by section 53-202, shall be fined not more than one thousand dollars or imprisoned not more than five' years or both, and the presence of any such weapon, pistol or revolver, or machine gun in any vehicle shall be prima facie evidence of a violation of this section by the owner, operator and each occupant thereof. . . .”

       The defendant stipulated to the fact that he had been convicted of burglary in the third degree, a class D felony, prior to his arrest in this case. See General Statutes §§ 53a-103 and 53a-103a. Thus, the only disputed issues at trial were the operability of the firearm and the defendant’s possession thereof.

       Specifically, the defendant requested that the trial court instruct the jury that “[w]here the defendant is not in exclusive possession of the [vehicle wherein] the firearm was found, you may not infer that he knew of its presence and that he had control of it, unless he made some incriminating statement, or unless there are [some] other circumstances [that] tend to support such an inference.” The trial court denied that request and indicated that “ ‘what I am going to charge [the jury] ... is that possession means intentional dominion and control over the firearm accompanied by knowledge of its character. Mere presence in the vicinity of the firearm, however, is not enough to establish possession. . . . [I]f that’s what your claim is, that will be covered in the charge that I plan on giving. ... I am going to charge [that] mere presence in the vicinity of a firearm, however, is not enough to establish possession. So to that end I am going to deny the request, your specific request to charge under the exclusive possession section because I think it is adequately covered in the charge that I am going to give under the elements of the crime.’ ” State v. Williams, supra, 59 Conn. App. 779-80 n.3.

       Because of our conclusion that no error occurred in denying the defendant’s request to charge the jury on the doctrine of nonexclusive possession, we need not address the second certified issue.

       Any rejoinder claiming that the defendant’s version of the evidence demonstrates that he, through possession of the key to the rental car, had nonexclusive possession of the vehicle, is unavailing. The fact that the key was found on the defendant’s person is entirely consistent with his theory of defense, which claims that he obtained the key from Scott in order to retrieve a compact disc from the vehicle. The defendant’s contention, therefore, was that he did not have possession of the vehicle, nonexclusive or otherwise, at any point in time. Thus, an instruction regarding nonexclusive possession is not supported by the defendant’s own evidence.
      An instruction on the defendant’s theory of defense is required only when “the evidence indicates the availability of that defense . . . .” State v. Fuller, 199 Conn. 273, 278, 506 A.2d 556 (1986). Contrary to the approach promulgated by the dissent, this court is not required to encumber the burden of contriving a variety of possible scenarios under which the defendant may then be entitled to an instruction regarding nonexclusive possession when the parties themselves presented no such situation.

       General Statutes § 53a-3 (2) provides that “ ‘[pjossess’ means to have physical possession or otherwise to exercise dominion or control over tangible property . . . .”

       See also United States v. McKissick, supra, 204 F.3d 1291 (“In cases involving joint occupancy of aplace where contraband is found, mere control or dominion over the place in which the contraband is found is not enough to establish constructive possession. ... In such cases, the government is required to present direct or circumstantial evidence to show some connection or nexus individually linking the defendant to the contraband. . . . The government must present some evidence supporting at least a plausible inference that the defendant had knowledge of and access to the . . . contraband.” [Citations omitted; internal quotation marks omitted.]).

       It should be noted that there was no dispute that the weapon was located on the driver’s seat of the vehicle.

       We recognize that the car was rented to Scott and, therefore, at least one other individual had access to the vehicle at some point. The issue presented in this case, however, is not whether any other individual had access to the vehicle at any point in time, but rather, whether any other individual had access to the vehicle during the relevant time frame. Under the circumstances of this case, that time frame began when Lawrence witnessed the driver exit the vehicle and the weapon could be seen resting on the driver’s seat. Thus, the fact that Scott was the legal renter of the vehicle is of no consequence to our analysis.

        Similarly, Dinatale’s testimony that Scott had reported the vehicle stolen and then claimed that he had loaned it to a friend is irrelevant. The dissent suggests that this provides evidence to support, the claim that others had possession of the vehicle. The dissent, however, fails to mention that the reported theft of the vehicle occurred the day before the alleged incident and, therefore, prior to the relevant time frame.

       It is also worth noting that under the charge given by the trial court, the jury could not have convicted the defendant on the basis of his factual scenario. It is a fundamental principle that “jurors are presumed to follow the instructions given by the judge." (Internal quotation marks omitted.) State v. Smith, 212 Conn. 593, 599, 563 A.2d 671 (1989); State v. Williams, 202 Conn. 349, 364, 521 A.2d 150 (1987); State v. Barber, 173 Conn. 153, 156, 376 A.2d 1108 (1977). During its charge, the trial court explained that “[possession means intentional dominion and control over the firearm accompanied by knowledge of its character. Mere presence in the vicinity of the firearm, however, is not enough to establish possession.” Presuming that the jury followed these instructions, it could not have found the defendant guilty based on mere possession of the key within close proximity to the vehicle. Consequently, the jury necessarily convicted the defendant under the state’s version of the facts, which did not require an instruction on nonexclusive possession.

       Specifically, the defendant requested that the trial court instruct the jury that “[w]here the defendant is not [in] exclusive possession of the [vehicle wherein] the firearm was found, you may not infer that he knew of its presence and that he had control of it, unless he made some incriminating statement, or unless there are [some] other circumstances [that] tend to support such an inference.” The trial court denied that request and indicated that “what I am going to charge [the jury] ... is that possession means intentional dominion and control over the firearm accompanied by knowledge of its character. Mere presence in the vicinity of the firearm, however, is not enough to establish possession. . . . [I]f that’s what your claim is, that will be covered in the charge that I plan on giving. ... Iam going to charge [that] mere presence in the vicinity of a firearm, however, is not enough to establish possession. So to that end I am going to deny the request, your specific request to charge under the exclusive possession section because I think it is adequately covered in the charge that I am going to give under the elements of the crime.” State v. Williams, 59 Conn. App. 771, 779-80 n.3, 758 A.2d 400 (2000).

       General Statutes § 53a-3 (2) provides that “ ‘[p]ossess’ means to have physical possession or otherwise to exercise dominion or control over tangible property . . . .”

       As the majority opinion recites, quoting State v. Delossantos, 211 Conn. 258, 277, 559 A.2d 164, cert. denied, 493 U.S. 866, 110 S. Ct. 188, 107 L. Ed. 2d 142 (1989), “ ‘[wjhere the defendant is not in exclusive possession of the premises where the [illegal item is] found, it may not be inferred that [the defendant] knew of the presence of the [illegal item] and had control of [it], 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 State v. Berger, 249 Conn. 218, 225, 733 A.2d 156 (1999); State v. Alfonso, 195 Conn. 624, 633, 490 A.2d 75 (1985). The doctrine of nonexclusive possession “was designed to prevent a jury from inferring a defendant’s possession of [an illegal item] solely from the defendant’s nonexclusive possession of the premises where the [illegal item was] found.” State v. Nesmith, 220 Conn. 628, 636 n.11, 600 A.2d 780 (1991).

       The majority opinion ably recounts the relevant facts in Nesmith.

       Indeed, a sufficiency of the evidence claim, contrary to a claim made by the defendant in this case concerning a failure to instruct as requested, requires this court to review the evidence presented at trial “in the light most favorable to sustaining the verdict.” (Internal quotation marks omitted.) State v. Wilcox, 254 Conn. 441, 463, 758 A.2d 824 (2000).

       It is noteworthy that the evidence presented by both the state and the defendant established that Scott recently had rented the vehicle and that he lived in the vicinity. It seems to me that, particularly because the vehicle was unoccupied at the time that the firearm was discovered therein, the majority properly cannot determine, as a matter of law, that the defendant’s possession was exclusive. That the officer testified to having observed the defendant driving the vehicle some moments before discovering the firearm does not convert what is otherwise a disputed factual determination into a legal conclusion eliminating the need for proper jury guidance.

       If the "totality of the evidence” includes other incriminating statements or facts demonstrating that the defendant knew of the presence of the firearm and intentionally exercised dominion and control over it, and those additional statements or facts would “reasonably and logically support [an] inference, then the jury may be instructed that it may draw such apermissive inference.” State v. Gerardi, 237 Conn. 348, 361, 677 A.2d 937 (1996). “[T]he jury must be instructed that it may infer facts only upon finding sufficient predicate . . . facts and circumstances that are rationally connected with the ultimate facts inferred.” Id.

       1 emphasize that the court, must view the evidence in the light most favorable to the defendant. See State v. Lewis, supra, 245 Conn. 810; State v. Edwards, supra, 234 Conn. 388.


source: Caselaw Access Project

author: VERTEFEUILLE, J.

license: Public Domain

text:
    VERNON L. COBHAM v. COMMISSIONER OF CORRECTION
    (SC 16393)
    Borden, Norcott, Katz, Palmer and Vertefeuille, Js.
    Argued May 24
    officially released September 11, 2001

      Tommy Ann Pieszak, chief of habeas corpus services, with whom was Margaret E. Flynn, deputy assistant public defender, for the appellant (petitioner).

      Harry Weller, senior assistant state’s attorney, with whom, on the brief, were Walter Flanagan, state’s attorney, and Angela Macchiarulo, assistant state’s attorney, for the appellee (respondent).
   Opinion

VERTEFEUILLE, J.

The dispositive issue in this appeal is whether a petition for habeas corpus is an appropriate means by which a defendant can challenge the legality of his sentence. The petitioner, Vernon L. Cobham, appeals from the judgment of the habeas court dismissing his petition for a writ of habeas corpus. He claims that the habeas court improperly concluded that the sentence that had been imposed by the trial court in his underlying criminal trial was lawful and in compliance with the plea agreement between the petitioner and the state. We conclude that the petitioner prematurely brought this petition for a writ of habeas corpus, rather than directly appealing the sentence or moving the trial court, pursuant to Practice Book § 43-22, to correct the sentence. Accordingly, we affirm the habeas court’s judgment dismissing the petition.

The record discloses the following relevant facts and procedural history. On January 21, 1993, the petitioner, pursuant to his plea agreement with the state, entered written pleas of nolo contendere to the charges of robbery in the first degree in violation of General Statutes § 53a-134 (a) (2), and burglary in the first degree in violation of General Statutes § 53a-101 (a) (l). The petitioner also agreed to a sentence pursuant to which he would serve a total effective prison term of fourteen years.

Pursuant to Practice Book § 39-19, the trial court, as part of its plea canvass, informed the petitioner that the counts to which he had pleaded were class B felonies, and, thus, each count individually carried maximum penalties of twenty years imprisonment and/or fines of $10,000. The trial court also explained that each count individually carried a mandatory minimum sentence of five years incarceration, which could not be suspended.* ****** Thereafter, the trial court sentenced the petitioner to serve two concurrent terms of fourteen years incarceration. The trial court noted for the record that the petitioner had to serve, for each count, the mandatory minimum of five years incarceration as required under §§ 53a-134 (b) and 53a-101 (c). The petitioner’s mittimus indicated that he was required to serve two concurrent terms of fourteen years incarceration with a minimum mandatory sentence of ten years. The petitioner did not object to the sentence imposed, move to withdraw his plea of nolo contendere, or file an appeal.

More than three years later, the issue of whether the department of correction (department) properly understood the defendant’s sentence was brought to the trial court’s attention. Specifically, Louis Pace, the clerk of the geographical area court, notified the trial court that the department was considering the release of the petitioner after he had served five years of his sentence. The trial court held a hearing on October 7, 1996, at which Pace testified that he had brought the matter to the trial court’s attention because he believed that the department’s view of the petitioner’s sentence differed from the sentence that the trial court had imposed.

The trial court subpoenaed Mary Jane Steele, a record specialist in the department, to testify at the hearing with regard to the petitioner’s sentence. Steele testified that she had reviewed the petitioner’s sentence and stated that, based on his fourteen year sentence, the petitioner would be eligible for parole in July, 2002, having then served one half of his sentence, or seven years. The trial court responded that Steele’s estimated parole eligibility date was incorrect because it had sentenced the petitioner to serve consecutively the two five year minimum sentences, thereby requiring him to serve a minimum mandatory sentence of ten years.

The trial court also subpoenaed John Sieminski, a counselor supervisor in the department, to testify with regard to the petitioner’s sentence. Sieminski testified that according to his inteipretation of the mittimus, the trial court had sentenced the petitioner to two concurrent fourteen year terms and that the petitioner had to serve consecutively each of the two mandatory minimum sentences of five years by the court’s direction. Sieminski also testified, however, that he had doubts about the validity of the mittimus because he previously had not seen such a sentence with regard to the mandatory minimum sentences.

In light of the apparent confusion with regard to the petitioner’s sentence, the trial court clarified its intention in imposing the sentence: “It was clearly the intention of the court . . . [that] [o]n each count [the petitioner] be sentenced to fourteen years. The two counts were to run concurrently. On each of the mandatory minima, he was sentenced to the mandatory minimum five year sentence. Those two sentences are to run consecutively. The effective sentence is fourteen years to seive. The mandatory minimum in consecutive terms is ten years to seive. That was the intent [of the trial court], that’s what was said, apparently not clearly enough to satisfy everyone, but it’s being clarified now.” After the trial court clarified the sentence, the petitioner did not object to the clarified sentence, move to withdraw his plea of nolo contendere, or file an appeal.

The petitioner thereafter filed an amended petition for a writ of habeas corpus, claiming that the judgment mittimus was inconsistent with the trial court’s pronouncement of judgment and the law because it ordered him to serve consecutively the two minimum mandatoiy sentences. The petitioner contended that because he was incarcerated in accordance with an illegal sentence, his confinement was unlawful. He also asserted that he had raised this claim previously before the trial court during the hearing on October 7, 1996, and that the court had refused to correct the sentence. The petitioner requested the habeas court to correct his sentence to require him to serve a total effective sentence of fourteen years, five years of which were mandatory.

The respondent, the commissioner of correction, thereafter filed an answer denying the allegations of the petition. Additionally, the respondent asserted that the petitioner’s claim was procedurally defaulted because he had failed to raise his claim before the trial court during sentencing, subsequent to sentencing pursuant to Practice Book § 43-22; see footnote 2 of this opinion; or on direct appeal. The respondent also claimed that the petitioner could not establish cause for the procedural default, nor prejudice that would excuse the procedural default. Thus, the respondent contended, the petitioner’s claim should not be reviewed for the first time during a habeas corpus proceeding.

The petitioner filed a reply, claiming that the respondent could not assert a defense of procedural default because the petitioner had raised the issue of his illegal sentence, albeit off the record, to the trial court. The petitioner also claimed that § 43-22 did not act as a procedural bar to his claim because it contained no time limitations concerning when he must file a motion to correct an illegal sentence. Finally, the petitioner maintained that the respondent could not assert a defense of procedural default because he was not seeking to vacate his plea or to reverse his conviction.

After a hearing, the habeas court, finding that it properly could hear the petition, dismissed the petition, concluding that the trial court, by imposing a nonsuspendable minimum sentence of ten years, properly had sentenced the petitioner and correctly had followed the plea agreement between the petitioner and the state. This appeal followed.

The petitioner claims that the habeas court improperly dismissed his petition for a writ of habeas corpus to correct his allegedly illegal sentence. Specifically, the petitioner maintains that the habeas court improperly: (1) dismissed his petition in light of the legally and logically impossible sentence imposed by the trial court, which requires the petitioner to serve two concurrent sentences while simultaneously requiring him to serve consecutively the two mandatory minimum sentences; (2) concluded that the statutory language of the crimes to which he had pleaded nolo contendere required that he serve the mandatory minimum sentences consecutively; (3) concluded that the sentence imposed by the trial court constituted specific performance of the plea agreement between him and the state; and (4) concluded, without supporting evidence, that the trial court had made clear its intent that the mandatory minimum sentences were to be imposed consecutively and that such imposition would not affect the calculation of the petitioner’s eligibility for parole or time of release. We decline to reach the merits of any of the petitioner’s claims, however, due to a procedural default, in that the petitioner prematurely has challenged his sentence before the habeas court.

This court has held that the jurisdiction of the sentencing court terminates once a defendant’s sentence has begun, and, therefore, that court may no longer take any action affecting a defendant’s sentence unless it expressly has been authorized to act. State v. Walzer, 208 Conn. 420, 424-25, 545 A.2d 559 (1988); see also State v. Mollo, 63 Conn. App. 487, 490, 776 A.2d 1176, cert. denied, 257 Conn. 904, 777 A.2d 194 (2001); State v. Tuszynski, 23 Conn. App. 201, 206, 579 A.2d 1100 (1990). Practice Book § 43-22, which provides the trial court with such authority, provides that “[t]he judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner.” “An ‘illegal sentence’ is essentially one which either exceeds the relevant statutory maximum limits, violates a defendant’s right against double jeopardy, is ambiguous, or is internally contradictory.” State v. McNellis, 15 Conn. App. 416, 443-44, 546 A.2d 292, cert. denied, 209 Conn. 809, 548 A.2d 441 (1988). We previously have noted that a defendant may challenge his or her criminal sentence on the ground that it is illegal by raising the issue on direct appeal or by filing a motion pursuant to § 43-22 with the judicial authority, namely, the trial court. See Copeland v. Warden, 225 Conn. 46, 47 n.2, 621 A.2d 1311 (1993). We have not, however, had the occasion to express an opinion as to “whether habeas corpus is an appropriate vehicle by which to challenge the legality of a sentence.” Id. We now conclude that before seeking to correct an illegal sentence in the habeas court, a defendant either must raise the issue on direct appeal or file a motion pursuant to § 43-22 with the trial court.

As we noted in Copeland, “it is to a defendant’s advantage to move in the trial court, pursuant to [§ 43-22], to correct a purportedly illegal sentence after the sentence is imposed. This method would ordinarily yield a more prompt consideration of [a] defendant’s challenge to the sentence than would the filing of a petition for habeas corpus, which usually entails considerably more delay than does a motion pursuant to [§ 43-22].” Id., 47-48 n.2. By filing a motion with the trial court, a defendant not only can be heard more expediently, but he also has access to certain remedies with regard to sentencing that the habeas court, the Appellate Court, and this court do not have the authority to order. For example, to correct an illegal sentence, only the trial court can: reconstruct the sentence to conform to its original intent or the plea agreement; eliminate a sentence previously imposed for a vacated conviction; or resentence a defendant if it is determined that the original sentence was illegal. See Miller v. Commissioner of Correction, 29 Conn. App. 773, 780-81, 617 A.2d 933 (1992); State v. Raucci, 21 Conn. App. 557, 563, 575 A.2d 234, cert. denied, 215 Conn. 817, 576 A.2d 546 (1990). We therefore conclude that, in order to challenge an illegal sentence, a defendant either must appeal the sentence directly or file a motion to correct the sentence pursuant to § 43-22 with the trial court before raising a challenge for the first time in a petition for a writ of habeas corpus.

The petitioner first challenged his sentence through this habeas petition. He did not file an appeal challenging his sentence nor has he filed, pursuant to § 43-22, a motion to correct the sentence with the trial court. The petitioner could have filed such a motion “at any time,” including the present time. Practice Book § 43-22. Furthermore, our review of the record reveals that the petitioner never challenged his sentence nor moved to withdraw his plea of nolo contendere during his first sentencing hearing or during the October 7, 1996 hearing held by the trial court. Because the petitioner has failed to follow the proper procedures by which to correct his sentence or to preserve his challenge to the sentence before having filed this petition for a writ of habeas corpus, his petition is procedurally defaulted and, therefore, we will review the petitioner’s claims before us only if he can satisfy the “cause and prejudice” standard of Wainwright v. Sykes, 433 U.S. 72, 87, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977). See Jackson v. Commissioner of Correction, 227 Conn. 124, 132, 629 A.2d 413 (1993); Johnson v. Commissioner of Correction, 218 Conn. 403, 409, 589 A.2d 1214 (1991).

The appropriate standard for reviewability of habeas claims that were not properly raised at trial; Johnson v. Commissioner of Correction, supra, 218 Conn. 409; or on direct appeal; Jackson v. Commissioner of Correction, supra, 227 Conn. 132; because of a procedural default is the cause and prejudice standard. Under this standard, the petitioner must demonstrate good cause for his failure to raise a claim at trial or on direct appeal and actual prejudice resulting from the impropriety claimed in the habeas petition. See id.; Johnson v. Commissioner of Correction, supra, 409; see also Simms v. Warden, 230 Conn. 608, 617, 646 A.2d 126 (1994); Summerville v. Warden, 229 Conn. 397, 428, 641 A.2d 1356 (1994). “[T]he cause and prejudice test is designed to prevent full review of issues in habeas corpus proceedings that counsel did not raise at trial or on appeal for reasons of tactics, inadvertence or ignorance . . . .” Valeriano v. Bronson, 209 Conn. 75, 83, 546 A.2d 1380 (1988). Therefore, “attorney error short of ineffective assistance of counsel does not adequately excuse compliance with our rules of [trial and] appellate procedure.” Jackson v. Commissioner of Correction, supra, 135-36.

The petitioner has failed to satisfy the cause and prejudice standard for the procedural default. He did not allege in his amended petition or maintain before the habeas court that his failure to challenge his sentence before the trial court or on direct appeal had been caused by some objective factor external to his own defense and that the default was prejudicial. Id. Because we conclude that the petitioner has failed to satisfy the cause or prejudice required to overcome the procedural default, we cannot review the petitioner’s claims. Accordingly, we affirm the habeas court’s judgment dismissing the petitioner’s petition for a writ of habeas corpus.

The judgment of the habeas court is affirmed.

In this opinion the other justices concurred.

       The petitioner appealed from (he judgment of the habeas court to the Appellate Court pursuant to General Statutes § 52-470 (b), and we transferred the appeal to this court pursuant to Practice Book § 65-1 and General Statutes § 51-199 (c).

       Practice Book § 43-22 provides: “The judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner.”

       Under the plea agreement, the state nolled a number of other charges against the petitioner that are not relevant to this appeal.

       General Statutes § 53a-134 provides in relevant part: “(a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime ... (2) is armed with a deadly weapon ....
      “(b) Robbery in the first degree is a class B felony provided any person found guilty under subdivision (2) of subsection (a) shall be sentenced to a term of imprisonment of which five years of the sentence imposed may not be suspended or reduced by the court.”

       General Statutes § 53a-101 provides in relevant part: “(a) A person is guilty of burglary in the first degree when he enters or remains unlawfully in a building with intent to commit a crime therein and: (1) He is armed with ... a deadly weapon or dangerous instrument ....
      “(c) Burglary in the first degree is a class B felony provided any person found guilty under subdivision (1) of subsection (a) shall be sentenced to a term of imprisonment of which five years of the sentence imposed may not be suspended or reduced by the court.”

       The petitioner and the state initially had reached agreement on a sentence of ten years incarceration. The trial court, however, declined to accept the agreement, expressing its opinion that this case warranted the maximum sentence for the offenses charged.

       Practice Book § 39-19 provides: “The judicial authority shall not accept the plea without first addressing the defendant personally and determining that he or she fully understands:
      “(1) The nature of the charge to which the plea is offered;
      “(2) The mandatory minimum sentence, if any;

        “(3) The fact that the statute for the particular offense does not permit the sentence to be suspended;
      “(4) The maximum possible sentence on the charge, including, if there aro several charges, the maximum sentence possible from consecutive sentences and including, when applicable, the fact that a different or additional punishment may be authorized by reason of a previous conviction; and
      “(5) The fact that he or she has the right to plead not guilty or to persist in that, plea if it has already been made, and the fact that he or she has the right, to be tried by a jury or a judge and that at that trial the defendant has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him or her, and the right not, to be compelled to incriminate himself or herself.”

       The trial court explained to the petitioner in relevant part: “[A plea of nolo contendere] says, T know what the penalties are, [I know] that I face, up to forty years, up to $20,000, and five years on each of the crimes is not suspendable,’ which could well expose you to a. ‘minimum nonsuspendable amount often years.” (Emphasis added.)

       The petitioner’s attorney stated on the record that he thought the trial court sentenced the petitioner to serve concurrently the two mandatory minimum terms. He also stated that he had been unaware of the language of the mittimus until Pace contacted him shortly before the hearing.

       On July 30, 1996, the petitioner originally had filed a pro so petition for a writ of habeas corpus with the habeas court on the ground that the mandatory minimum portion of his sentence was illegal in that it unconstitutionally negated the effect of “good time” computation and, thus, extended the time he was to serve. The petitioner had requested that the habeas court correct his sentence. The respondent, the commissioner of correction, had denied the petitioner’s allegations, stating that the petition was incomplete and/or inaccurate. Thereafter, the petitioner obtained counsel and filed the amended petition for a writ of habeas corpus that is the basis of this appeal and is discussed further in the text of this opinion.

       As we discuss more fully later in the text of this opinion, this court will review a habeas claim that was not properly raised at trial or on direct appeal because of a procedural default if the petitioner demonstrates good cause for his failure to raise the claim and actual prejudice resulting from the impropriety claimed in the habeas petition. See Jackson v. Commissioner of Correction, 227 Conn. 124, 132, 629 A.2d 413 (1993); Johnson v. Commissioner of Correction, 218 Conn. 403, 409, 589 A.2d 1214 (1991).

       The habeas court also noted that the minimum sentence imposed by the trial court did not limit the department from computing an earlier time of release or parole eligibility.

       We recognize that this court previously has suggested that the language “judicial authority,” found in § 43-22, included the appellate courts as well as the trial court that had ordered the sentence. See State v. Daniels, 207 Conn. 374, 387, 542 A.2d 306 (1988) (“[b]oth the trial court and this court, on appeal, have the power, at any time, to correct a sentence that is illegal”); see also State v. Mitchell, 37 Conn. App. 228, 232, 655 A.2d 282 (1995); State v. Guckian, 27 Conn. App. 225, 245, 605 A.2d 874 (1992). Today we clarify the meaning of “judicial authority” in § 43-22, however, to mean solely the trial court.

       Arguably, although the petitioner fails to make this argument, the fact that this court previously has not reached the dispositive issue in this case, the uncertainty of “whether habeas corpus is an appropriate vehicle by which to challenge the legality of a sentence”; Copeland v. Warden, supra, 225 Conn. 47 n.2; could, conceivably, constitute an objective factor external to the petitioner’s defense that caused him to think that he could raise this challenge for the first time before the habeas court without procedurally defaulting his claim. The petitioner, however, must establish cause and prejudice conjunctively. See Johnson v. Commissioner of Correction, supra, 218 Conn. 419. Because he can file a motion with the trial court to correct his sentence “at any time”; Practice Book § 43-22; the petitioner is not prejudiced by our conclusion that his claim is procedurally defaulted.

       In an alternative argument, the petitioner, citing Jackson v. Commissioner of Correction, 219 Conn. 215, 217, 592 A.2d 910 (1991), on appeal after remand, 227 Conn. 124, 629 A.2d 413 (1993), contends that, if we fmd a procedural default, we must remand this case to the habeas court for further proceedings to determine whether there was good cause for the petitioner’s failure to comply with the appropriate procedures by which to correct his sentence. In Jackson, this court heard the petitioner on his motion for reargument or reconsideration. Id., 215. Prior to Jackson, this court had affirmed the habeas court’s dismissal of thirty-one habeas corpus petitions, one of which was the petitioner’s, in Johnson v. Commissioner of Correction, supra, 218 Conn. 403. In his motion, the petitioner in Jackson brought to this court’s attention that, in addition to his other claims, he had presented to the habeas court testimony that would satisfy the requirement of good cause for failure to raise his claim before the trial court. Jackson v. Commissioner of Correction, supra, 219 Conn. 215-16. Because the habeas court had made no findings with respect to the testimony the petitioner had presented, we were unable to determine whether there was good cause for the procedural default. Id., 216. Accordingly, we opened the judgment affirming the dismissal of his petition and remanded the case to the habeas court for further proceedings to determine whether there was good cause for the petitioner’s failure to raise the claim that was the basis for his habeas petition before the trial court. Id., 217. The petitioner in the present case is not in an analogous position to the petitioner in Jackson. Here, the petitioner has neither briefed nor argued before this court that he had alleged in his petition or had maintained before the habeas court that he had good cause for failing to malee his claim before the trial court. Moreover, our review of the record of the proceedings before the habeas court reveals that the petitioner did not present any evidence that would satisfy the good cause requirement. We therefore conclude that the petitioner’s reliance on Jackson is misplaced.