Berry v. State

• Decision Date: 16 March 1995
• Docket Number: No. 91-KA-01074-SCT,91-KA-01074-SCT
• Citation: 652 So.2d 745
• Parties: Reginald BERRY v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 745

652 So.2d 745

Reginald BERRY v. STATE of Mississippi.

No. 91-KA-01074-SCT.

Supreme Court of Mississippi.

March 16, 1995.

Marshall A. Briscoe, Tupelo, for appellant.

Michael C. Moore, Atty. Gen., Deirdre McCrory, Sp. Asst. Atty. Gen., Jackson, for appellee.

En Banc.

BANKS, Justice, for the Court:

Reginald Berry was convicted of possession of cocaine. The proof showed only a momentary handling which we deem insufficient as a matter of law to establish dominion and control. We therefore, reverse and render.

I.

Reginald Berry was indicted on May 24, 1991 by the Grand Jury of Sunflower County on the charge of possession of cocaine with intent to deliver on December 14, 1990. Two men by the names of Wilbert Anderson and James Sharkey were co-defendants in this action, however, Berry was tried alone.

During trial, the State called Officer John Swift, employed with Sunflower County Sheriff's Department, as a witness. He testified that on December 14, 1990, he was headed north on Macon Lake Road and noticed a vehicle parked on the west side of the road with its head lights on. He testified that he pulled over and asked the driver, identified as Wilbert Anderson, if he was having car problems. Anderson stated that he was having starter problems. Swift stated that he got out of his vehicle and shined his flashlight into the car at which time he saw two other people and some "white stuff that seemed to be crack cocaine" on the floorboard or speaker amplifier. Thereafter, he asked everyone to get out of the vehicle and attempted to place them under arrest for possession of crack cocaine. Anderson fled from the scene during the arrest and was never caught. Swift identified the occupants of the vehicle as Berry, Sharkey and Anderson. He further testified that he looked inside the glove compartment and found a "big rock" of crack cocaine wrapped in a napkin. (T 48).

James Sharkey testified as follows: Anderson picked him up and they went to pick up Berry between 5:30 and 6:00 in the afternoon on December 14, 1990. They drove to Moorhead with him riding in the back seat, Berry in the passenger seat, and Anderson driving. Anderson turned down a road where a lot of people were standing and a guy approached the car "asking him [Anderson] was he looking for anything." Anderson parked the car, Anderson and Berry got out of the car and into a Cadillac owned by Steve Conrod. Sharkey said that he remained in Anderson's car. When they returned, he saw Anderson with cocaine, but did not see Berry with any until they were driving down the road and Anderson gave Berry the cocaine and asked him to place it in the glove compartment. Berry complied.

Sharkey testified that he knew cocaine was inside the car and felt that Anderson and Berry knew cocaine was present also. He further testified that to his knowledge, neither Berry nor Anderson had cocaine on them when they exited the vehicle going to the Cadillac.

Sharkey further testified that when they got down the road, it was dark and they parked on the side of the road. They pulled over so that Anderson could verify that the substance was actually cocaine. Anderson pulled out a pipe and started smoking when Officer Swift arrived on the scene. Anderson passed Berry the pipe which he guessed Berry must have dropped because the deputy picked it up.

Sharkey stated that Berry neither said anything about what he planned to do with the cocaine, nor did he know if Berry put any money into the purchase of the cocaine. Sharkey was thereafter impeached by the State when he conceded that he told deputies that he, Berry, and Anderson went to Moorhead so that Berry and Anderson could purchase cocaine to sell back in Humphreys County.

On cross-examination, Sharkey testified that his statement to the Sheriff's Department that Berry and Anderson planned to sell the cocaine in Humphreys was just an assumption based on the fact that both of them got into the Cadillac with Steve Conrod.

After hearing the testimony of Sharkey and Officer Swift, the defense moved for a directed verdict of acquittal on the premise that no evidence was presented that Berry had possession of the cocaine with intent to deliver or transfer. The court reduced the charge from possession of cocaine with intent to deliver to simple possession stating that there was evidence that Berry got out of the car and into the Cadillac at the time of the purchase, and that he had cocaine in his hand at one point and placed it in the glove compartment.

Berry testified in his own behalf. He testified that when they reached Moorhead, all three occupants of the car got out and Anderson stated that he needed to see somebody. He testified that while Anderson went to see whoever it was he wanted to see, he waited by a cafe and did not get into a car with Anderson. He further stated that he did not know why Sharkey testified that Berry and Anderson got into a Cadillac together. When Anderson was ready, Berry testified that they left and Anderson pulled off the road to smoke some cocaine. He stated that he did not know cocaine was in the car or that Anderson possessed cocaine until Anderson started smoking it. He further testified that he neither handled nor possessed the cocaine himself. Berry also stated that Anderson put the drugs into the glove compartment and he did not know what it was because it was wrapped up.

After testimony was taken, the defense moved for a directed verdict arguing that the evidence presented was not sufficient to proceed to the jury as no evidence was presented that he had actual possession of the cocaine; the motion was overruled.

The jury found Berry guilty of possession of cocaine and on October 10, 1991, Berry was sentenced to three years in the Mississippi Department of Corrections. Berry's conviction also violated a prior probation for possession of marijuana and he was ordered to serve that three year sentence also, sentences to run consecutively.

Following the denial of post-trial motions, Berry filed a notice of appeal.

II.

Berry argues that the trial court erred in overruling his motions for a directed verdict and, in the alternative, judgment notwithstanding the verdict because there was insufficient evidence to support his conviction.

Berry argues that although Sharkey testified that he saw Anderson pass cocaine to Berry to put in the glove compartment, the cocaine was wrapped in a napkin, as testified to by Swift, and Sharkey never testified that Berry knew what he put in the glove compartment was cocaine. Berry argues that without proof that he knew what he put in the glove compartment was cocaine, it was not proven that he knowingly and intentionally possessed cocaine as required by Curry v. State, 249 So.2d 414 (Miss.1971).

Berry also contends that because the State did not prove that he had actual possession of the cocaine, the State had the burden of proving that he constructively possessed the cocaine. Cunningham v. State, 583 So.2d 960 (Miss.1991). Berry argues that he did not have constructive possession of the cocaine because he denied that he placed cocaine in the glove compartment at all and, furthermore, no evidence was presented that he knew he placed cocaine in the glove compartment of the car as it was wrapped in a napkin.

In Curry, the defendant allowed his vehicle to be driven by another while he rode in the passenger seat. Curry, 249 So.2d at 414. The automobile was stopped by the police and marijuana was found under the dashboard in close proximity to the defendant who was observed placing something under the seat. This Court held that there was sufficient evidence to support the jury's finding that the defendant was in possession of the marijuana as the evidence indicated that the defendant was in the passenger seat of his automobile, in close proximity to where the marijuana was found, and was observed placing something under the seat. This Court reasoned that to prove possession,

there must be sufficient facts to warrant a finding that the defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it. It need not be actual possession. Constructive possession may be shown by establishing that the drug involved was subject to his dominion and control. Proximity is usually an essential element, but by itself is not adequate in the absence of other incriminating circumstances.

Curry, 249 So.2d at 416.

In Cunningham, a passenger in a truck, who did not own the vehicle, was convicted of possession of crack cocaine after cocaine was found in close proximity to him on the floor. Cunningham, 583 So.2d at 960. This Court reversed the conviction holding that

when contraband is found on premises, there must be evidence, in addition to physical proximity, showing the defendant consciously exercised control over the contraband, and absent this evidence, a finding of constructive possession cannot be sustained.

Id. at 962, citing Fultz v. State, 573 So.2d 689, 690 (Miss.1990). This Court further held that "the state must show additional incriminating circumstances to justify a finding of constructive possession." Cunningham at 962.

The State argues that possession of a controlled substance may be actual or constructive, individual or joint. Wolf v. State 260 So.2d 425, 432 (Miss.1972). The State further argues that Berry was aware of the presence and character of the cocaine and was consciously and intentionally in possession of it as required by Cunningham, 583 So.2d at 960, and Curry, 249 So.2d at 416. The State argues that Berry's knowledge and intention is evidenced by Sharkey's testimony that Berry and Anderson got out of the car and into the Cadillac after being asked if they were looking for anything. In addition, Sharkey saw Anderson with the cocaine when Berry and Anderson returned to the car, and based on his observations, testified that both Berry and Anderson knew that cocaine was...