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Constructive possession

You're sitting on the couch when the cops break in, and there's a couple hundred grams of coke lying on the coffee table.  That puts you in Major-Drug-Offender land, which is not a happy place.  But, you tell everybody, the coke really belonged to LeRoy, the guy sitting next to you, who everybody knows is a big-time dealer; he was just about to sell you a quarter ounce from his stash.

They tell you it doesn't matter:  you had "constructive" possession, that is, you were in a position to exercise "dominion and control" over the drugs on the coffee table.

You tell them LeRoy is very protective of his drugs.  If you had indeed attempted to exercise "dominion and control" over those drugs, LeRoy would have probably doubled the number of holes in your skull.

They tell you it doesn't matter.  And it doesn't. 

Or it does, depending upon which recent 8th District you want to rely on.  Let's take a look.

These cases are pretty fact-dependent, so let's talk about the facts.  In State v. Gardner, the defendant got into a fight with his girlfriend; the two separated momentarily, at which time he called her up and told her that he was going to shoot her and the kids.  The wife had summoned the police, and they were there at the time.  During a further discussion with them, one in which Gardner, no doubt, became increasingly agitated, Gardner deemed it advisable to tell the police that if they're around, he'll shoot them, too.

Gardner sure talked the talk, but he didn't walk the walk.  When the police came over to where he told them he was -- his mother's house -- he meekly surrendered.  The cops found a gun under the flap of the firepit about ten to fifteen feet away.

In State v. Carson, the cops set up a drug deal with Carson.  The deal goes down, and Carson gets into the driver's seat of an SUV with two soon-to-be co-defendants.  The cops start to follow, and Carson takes off.  When Carson finally pulls over, the cops see a passenger in the second row of seats reach into the third row and put something down.  That something turns out to be a gun.

In each case, proximity isn't an issue.  For some reason, proximity doesn't come into play with possession, except in clear-cut cases.  (I had one case where the defendant was charged with a firearm specification; he was in jail when the guns he purportedly "possessed" turned up.)  But I've seen cases where the drugs were found in the attic and the gun was found in the car in the garage, and that was sufficient to tag the defendant with a firearm spec.

The real issue is knowledge.  As Carson explains:

Constructive possession exists when an individual knowingly exercises dominion and control over an object, even though that object may not be within the individual's immediate physical possession.

In a nutshell, did the State prove that Gardner knew the gun was in the firepit, or that Carson knew there was a gun in the third row of the SUV?

There's an additional piece of evidence against Gardner.  His girlfriend told the police that Gardner carried a gun, but her testimony proves less than helpful.   The best indication of her credentials as a firearms expert was her inability to describe the gun she'd seen Gardner with, other than that "it had the spinney thing where the bullets go in."  The gun subsequently identified as the one Gardner carried around was a .38; the gun found in the firepit was a 22. 

The panel decides that that's not enough, and vacates Gardner's conviction for weapons under disability.  There's some really nice case law, and some very defendant-friendly language in Gardner.  If you've got a constructive possession case, Gardner is a must-have.

Carson, not too much, although it's a necessary read, too.  There's no additional evidence in Carson.  The panel finds two factors in the State's favor.  First, Carson's fleeing the scene, which "leads to the natural inference that he was aware of the gun's presence," and that,

coupled with the furtive actions of the passenger directly behind Carson and the discovery of the partially concealed weapon directly behind that passenger, is sufficient to establish that Carson knowingly exercised dominion and control over the firearm.

I've got some problems with that analysis.  Carson might have just as easily been fleeing the scene because he knew he'd just consummated a drug transaction.   And what do the passenger's "furtive movements" have to do with Carson, in the absence of any evidence that Carson was aware of them, a route foreclosed by simple physics and biology:  no, Carson did not have eyes in the back of his head.

I don't think that Carson was necessarily wrongly decided.  I can make an argument for that, but the problem is that you're going up on a sufficiency analysis, and that not only requires the panel to look at the State's evidence in the most favorable light, but also any inferences that can be reasonably drawn from that evidence.  That's a tough hurdle.

So here's my point.  This is an argument you're going to win in the trial court, or very likely not at all.  That's why you need to understand Gardner and be able to argue it.  It'll give you your case strategy, and how to implement it.  There's some very good jury instructions you can come up with.

Trying a criminal case, or any case, is art, to a large measure:  you can go to all the seminars you want on voir dire or cross-examination or closing argument, but that's not going to make you a trial superstar. 

But even if you become one, that takes you only so far.  If you can't competently argue the law on things like constructive possession, or allied offenses or 404(B) evidence or lesser included offenses or a host of other things, you're going to lose cases that you should win.

Read Gardner.  Learn Gardner.  Live Gardner.  Love Gardner.  


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