Goldsmith v. Witkowski

• Decision Date: 05 January 1993
• Docket Number: No. 91-7578,91-7578
• Citation: 981 F.2d 697
• Parties: Lewis D. GOLDSMITH, Petitioner-Appellant, v. S.R. WITKOWSKI, Warden; State of South Carolina; Attorney General of South Carolina, Respondents-Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 697

981 F.2d 697

Lewis D. GOLDSMITH, Petitioner-Appellant, v. S.R. WITKOWSKI, Warden; State of South Carolina; Attorney General of South Carolina, Respondents-Appellees.

No. 91-7578.

United States Court of Appeals Fourth Circuit.

Argued May 7, 1992.

Decided Nov. 24, 1992.

As Amended Jan. 5, 1993.

Steven H. Goldblatt, Director, Appellate Litigation Clinical Program, Georgetown University Law Center, Washington, D.C., argued (Eric J. Glassman, Student Counsel, Philip W. Owens, Student Counsel, on brief), for petitioner-appellant.

Donald John Zelenka, Chief Deputy Atty. Gen., Columbia, S.C., argued (T. Travis Medlock, Atty. Gen., on brief), for respondents-appellees.

Before MURNAGHAN and NIEMEYER, Circuit Judges, and SPROUSE, Senior Circuit Judge.

OPINION

SPROUSE, Senior Circuit Judge:

Lewis D. Goldsmith appeals from the district court's dismissal of his 28 U.S.C. § 2254 petition for habeas corpus. In the district court, Goldsmith challenged convictions by a South Carolina state court for possession of narcotics with intent to distribute and conspiracy to distribute narcotics. We hold that the evidence was constitutionally insufficient to support the convictions, and that part of the State's evidence presented at trial violated Goldsmith's Sixth Amendment right to confront witnesses. Accordingly, we reverse.

Police in Greenville County, South Carolina, arrested Goldsmith and co-defendants Timmy Cooper and Adele Jordan on drug charges in 1988. Goldsmith was indicted on six counts and was tried separately from his co-defendants; a state court jury found him guilty on all charges. He received concurrent sentences of four years for possession of marijuana, twenty years and a $20,000 fine for possession of marijuana with intent to distribute, ten years for conspiracy to distribute marijuana, four years for possession of cocaine twenty years and a $50,000 fine for possession of cocaine with intent to distribute, and ten years for conspiracy to distribute cocaine. On appeal the South Carolina Supreme Court affirmed the convictions for possession with intent to distribute and conspiracy to distribute marijuana and cocaine, but vacated the two simple possession convictions as lesser included offenses. 301 S.C. 463, 392 S.E.2d 787. Goldsmith's petition for habeas corpus relief in the district court challenged the remaining four convictions. He contended that, under the standard of Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979), the evidence presented at trial was insufficient to sustain the convictions, and that the elicitation of hearsay testimony from a police officer violated his Sixth Amendment right to confront witnesses. The district court dismissed his petition, and he appeals.

I

To assess Goldsmith's challenge, we review the evidence produced at trial "in the light most favorable to the prosecution." Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. The trial evidence consisted of both physical evidence and uncontested testimony from the five police officers who searched the apartment where Goldsmith was arrested. It demonstrated that on July 22, 1988, five narcotics deputies of the Greenville County Sheriff's Department searched an apartment in Taylors, South Carolina. The officers made the search pursuant to a valid warrant. Two officers approached the apartment building from the front and three from the rear. The former testified that Goldsmith's co-defendant Timmy Cooper was outside when they arrived. Upon seeing the police, Cooper ran into the apartment through the front door. The three officers assigned to the rear of the building entered the apartment through the back door after overcoming Cooper's attempt to bar their entry.

The first officer into the apartment testified that as he entered, Goldsmith was sitting at a dining room table. A small child was sitting on a sofa. The second officer into the apartment testified that as he entered, Goldsmith was standing next to the table and was "looking toward us to see what was going on as I went through the door." They subsequently arrested Goldsmith, Cooper, and Jordan. A body search pursuant to Goldsmith's arrest uncovered $200 in his sock. No drugs were found on his person.

Both narcotics and drug paraphernalia were seized. From the dining room table, the officers seized a tenth of a gram of cocaine (1.54 grains), a scale, a straw, and rolling papers. Two bags of marijuana were recovered near one of the table legs. The larger of the two bags was concealed in a shopping bag and contained 310.92 grams of marijuana; the smaller bag contained 113.4 grams. More evidence was found in a closed kitchen cabinet, the freezer, and the master bedroom. Officers seized cocaine wrapped in aluminum foil, a bag containing cocaine, a scale, a revolver, a covered plastic coffee cup containing marijuana seeds, a small bag of marijuana, and a lunch box containing plastic sandwich bags with the corners cut out.

Both the cocaine and the marijuana were in Goldsmith's plain view. The officers testified that the one-tenth of a gram of cocaine on the dining room table was in Goldsmith's plain sight as the search began. One testified that the larger bag of marijuana was in a shopping bag on the floor, but that Goldsmith could not have avoided seeing the smaller bag from where he was standing. ¹

At trial, the officers testified that the apartment was not Goldsmith's residence; they did not identify who owned or rented the apartment. None of the officers could say that at the time they arrived at the apartment building Goldsmith was in the apartment. One testified, "I presume he was inside, we didn't see him outside." Another, when asked who was in the residence when the police arrived, answered, "I can't say, I mean, when I got there."

A

Looking first at the evidence to determine if it is sufficient to uphold Goldsmith's two convictions for possession with intent to distribute cocaine and marijuana, we view it "in the light most favorable to the prosecution," and consider whether "any rational trier of fact could have found the essential elements of that crime beyond a reasonable doubt." Jackson, 443 U.S. at 319, 99 S.Ct. at 2789.

Under South Carolina law, a conviction for the crime of possession with the intent to distribute, of course, requires proof of possession of drugs, and either actual or constructive possession is sufficient. S.C.Code Ann. § 44-53-370(a)(1); State v. Ellis, 263 S.C. 12, 207 S.E.2d 408, 413 (1974). Because Goldsmith did not have actual possession of the drugs in the apartment, proof of his constructive possession was required. A person has constructive possession of drugs if he has knowledge of the presence of the drugs and dominion and control, or the right to exercise dominion and control, over the drugs. Ellis, 207 S.E.2d at 413; see also State v. Kimbrell, 294 S.C. 51, 362 S.E.2d 630, 631 (1987) (holding that the possession element of the crime of trafficking in cocaine requires proof of power and intent to control). Constructive possession may be established by circumstantial evidence. Ellis, 207 S.E.2d at 413.

The South Carolina Supreme Court, in concluding that the convictions for possession with intent to distribute narcotics were sufficiently supported by the evidence, considered Goldsmith's presence in the apartment and his proximity to the narcotics and drug paraphernalia, which he could plainly see. Under South Carolina law, a jury may properly infer knowledge from such circumstances. See State v. Foster, 269 S.C. 373, 237 S.E.2d 589, 593 (1977). The state courts in this case, however, did not point to any evidence from which a jury could infer dominion or control. Nor do we find such requisite record evidence of that element of the state offense as would meet the Jackson standard. ²

Essentially, the government only proved Goldsmith's presence in the apartment and his awareness of the drugs. Under South Carolina law, the mere presence of a person in an area containing drugs, absent evidence of his dominion and control over them, is insufficient to prove his possession of the drugs. State v. Tabory, 260 S.C. 355, 196 S.E.2d 111, 113 (1973). Again, even presence coupled with knowledge of the drugs is insufficient to sustain a possession conviction; the State must also prove dominion and control. See Kimbrell, 362 S.E.2d at 631. Even if this were not state law, the due process protections of Jackson, in our view, would require the invalidation of convictions based solely on evidence of mere presence, as was established in this case.

Proof of dominion and control, of course, may include evidence that the accused controlled the premises where the drugs were found or that he had a special relationship with the owner or lessor of the premises. See State v. Brown, 267 S.C. 311, 227 S.E.2d 674, 676 (1976) (reversing possession conviction for insufficient evidence where defendant was a passenger in a car containing eight pounds of marijuana, but where State did not show that defendant had special relation with car's owner or its driver or that defendant exercised control over the car); cf. State v. Hudson, 277 S.C. 200, 284 S.E.2d 773, 775 (1981) (holding that evidence of heroin, seized from apartment shared by the defendants, was sufficient to show control and possession). The South Carolina courts have also accepted other proof of dominion and control as sufficient to support a finding of possession. See State v. Ellis, 263 S.C. 12, 207 S.E.2d 408, 413 (1974) (reversing possession conviction where appellant resided in apartment in which heroin sales occurred and was present during sales, but where State did not show that appellant participated in the sales or in any other way exercised control); cf. Kimbrell, 362 S.E.2d at 631 (holding that evidence, which showed accomplice told defendant to watch cocaine while former went outside, was sufficient to support possession conviction). We have no...