concluding evidence sufficient for constructive possession where evidence showed that "narcotics-laden" bag rested in plain view on front seat of car equidistant from appellants and appellants were involved in ongoing criminal activity
How later courts described this case
- concluding evidence sufficient for constructive possession where evidence showed that "narcotics-laden" bag rested in plain view on front seat of car equidistant from appellants and appellants were involved in ongoing criminal activity
- stating that we will not “second guess” the tactical decision of trial counsel not to call a witness where counsel believes that witness’s testimony would be more inculpatory than exculpatory
- rejecting a legal sufficiency challenge, the court observed that the case was "a diminished version of many constructive possession cases, in that the contraband was within the actual immediate reach of both defendants"
- police had probable cause to search ear where citizen flagged down police, gave her name and address to officer, and informed police that “a man in a brown Plymouth with District of Columbia license plates was about to make a drug drop at a specified location a few blocks away”
Written by the judges who cited it.
The opinion
NEWMAN, Senior Judge,
concurring in part, dissenting in part:
Since the government was unable to present evidence showing to whom the drugs belonged — the drugs being concealed in the closed brown paper bag equidistant between the passenger and the driver — the majority holds it is proper for the jury to convict both of them. Since this offends constitutional due process, see Thompson v. City of Louisville, 362 U.S. 199 , 80 S.Ct. 624 , 4 L.Ed.2d 654 (1960) (a conviction devoid of evidentiary support violates due process), I dissent.
To convict of a possessory drug offense based on the doctrine of constructive possession, the government must prove three things beyond a reasonable doubt: (1) that the defendant was aware of the location of the drugs; (2) that he had the ability to exercise dominion and control over them; and (3) he had the intent to control the destiny of the drugs. In re T.M., 577 A.2d 1149 (D.C.1990) (citing among other cases, Bernard v. United States, 575 A.2d 1191 (D.C.1990)). We have quite recently reaffirmed the centrality of the intent requirement. Speight v. United States, 599 A.2d 794 (D.C.1991). In both T.M. and Speight we held that the presence of defendants in close proximity to contraband in open and plain view (a pistol and ammunition in T.M., and narcotics and paraphernalia in Speight) was insufficient to satisfy the intent to guide the destiny prong of constructive possession. Here, however, where the drugs were in a closed container, with no evidence of which, if either, of the persons within the car knew even the contents of the bag, the majority finds sufficient evidence of both knowledge and intent. I respectfully suggest that what the government’s factual witnesses were unable to show cannot be provided either by an “expert witness” whose testimony was merely that the defendants’ conduct was consistent with a drug distribution operation (a truism) or by appellate “factual” fiat. See majority opinion supra at 52. (The appellants were “engaged in a drug distribution business.”)
Since there was insufficient evidence to sustain the convictions, the Double Jeopardy Clause prevents retrial. See Burks v. *54 United States, 437 U.S. 1, 18 , 98 S.Ct. 2141, 2150 , 57 L.Ed.2d 1 (1978). 1
. I join the other portions of the majority opinion.