People v. Davenport
| Decision Date | 22 March 1972 |
| Docket Number | No. 1,Docket No. 10718,1 |
| Citation | 39 Mich.App. 252,197 N.W.2d 521 |
| Parties | , 56 A.L.R.3d 942 PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Rosby DAVENPORT, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
Carl Ziemba, Detroit, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Patricia J. Boyle, Asst. Pros. Atty., for plaintiff-appellee.
Before LEVIN, P.J., and HOLBROOK and BRONSON, JJ.
Rosby Davenport, the defendant-appellant, and Lillie Green where convicted of possession of narcotics. 1 Davenport was sentenced to serve a term of 4 to 10 years in prison. Green was placed on probation. Davenport appeals.
The jurors were instructed that they could convict Davenport of possessing a narcotic drug if they found that he was in possession of either .26 grams of heroin or 7.3 grams of marijuana which were discovered and seized by the police during a search of the house where Davenport and Green resided. We conclude that while there was sufficient evidence to support a verdict finding Davenport guilty of possessing the seized marijuana, the evidence was not sufficient to tie him to the heroin. Since the jury rendered a general verdict we must reverse Davenport's conviction and remand for a new trial. 2
At the trial, police officers testified that they knocked on the front door of the house. Davenport responded and peered at the officers through a window but did not answer the door. An officer announced that they had a search warrant and demanded entrance. The officers then observed Davenport rush past the door and up a stairway carrying a small box. They broke in the door and several officers rushed up the stairs.
A detective testified that he observed Davenport and Green tossing objects into a toilet in the bathroom at the head of the stairs. The detective retrieved from the flushing toilet three envelopes and a bit of loose plantlike material later identified as marijuana.
In the meantime other officers searched the house. In the basement, at the bottom of a barrel of soiled clothes, they discovered a bag. In the bag they found narcotics paraphernalia and a number of bottles, including three small plastic bottles and a larger bottle made of brown glass. Two of the small plastic bottles were labeled with prescriptions for 'Ardis Phillips', another resident of the house. One of the small plastic bottles was labeled with a prescription for ' .' The three plastic bottles contained pills of one kind or another but there is no evidence of the kinds of pills and, presumably, they were not narcotics. There were 43 capsules in the brown bottle. Five of the capsules contained a white powdery substance which was identified as part heroin. The other 38 capsules did not contain heroin. Four persons, Davenport, Green, Phillips and Walter Brown, lived in the house.
Davenport and Green were charged with possession of the .26 grams of heroin contained in the 5 capsules and of the 7.3 grams of marijuana retrieved from the flushing toilet. 3
At the trial, Davenport and Green denied being in the bathroom or throwing anything into the toilet, and also denied having any knowledge of the bag found in the basement or its contents.
The issue which divided us in People v. Valot, 33 Mich.App. 49, 189 N.W.2d 873 (1971), need not be reconsidered in order to decide this case. In this case, in contrast with Valot and People v. Harper, 365 Mich. 494, 113 N.W.2d 808 (1962), there is no evidence whatever tending to show that Davenport knew of the presence of the heroin found in the barrel in the basement. 4
The evidence in this case regarding possession of the heroin is entirely circumstantial. The established rule is that where the people's case is based on circumstantial evidence the prosecution has the burden of proving 'that there is no innocent theory possible which will, without violation of reason, accord with the facts.' People v. Millard, 53 Mich. 63, 70, 18 N.W. 562, 564 (1884); People v. Spann, 3 Mich.App. 444, 454, 142 N.W.2d 887 (1966); People v. Morrow, 21 Mich.App. 603, 606, 175 N.W.2d 523 (1970). 5 Davenport cannot be convicted on the theorem that Someone must have been in possession of the heroin.
Davenport's residence in the house and the presence in the bag of a plastic bottle carrying a label bearing his name were the only evidence connecting him to the heroin found in the brown bottle. 6 Four persons lived in the house. It is not reasonable to infer from the fact that Davenport was one of the occupants that he--rather than Phillips or Brown or Green 7--was the person who placed the capsules in the brown bottle. In addition to the plastic bottle labeled with Davenport's name, there were two plastic bottles bearing the name of one of the other residents, Ardis Phillips. There was no evidence that the brown bottle, the bag, or the barrel belonged to Davenport. Clearly there were innocent theories--unrebutted by any evidence--which accord with the facts. It is as likely that Ardis Phillips or anyone else living in the house, who would have had equal access to the basement, was in possession of the heroin.
More than mere association must be shown to establish joint possession. 'An additional independent factor linking the defendant with the narcotic must be shown.' State v. Faircloth, 181 Neb. 333, 337, 148 N.W.2d 187, 190 (1967). Similarly, see United States v. Bonds, 435 F.2d 164 (CA 9, 1970); United States v. Bethea, 143 U.S.App.D.C. 68, 71, 442 F.2d 790, 793 (1971); Kirtley v. State, 245 So.2d 282 (Fla.App.1971).
It has been said that in a criminal case 'not only must each of the facts from which the inference is drawn be proved beyond any reasonable doubt, but the inference itself must be such as admits of no other rational conclusion.' People v. Sessions, 58 Mich. 594, 606, 26 N.W. 291, 298 (1886) (per Sherwood, J.). Accord: Miller v. State, 250 Ind. 338, 236 N.E.2d 173 (1968): Similarly, see State v. Faircloth, Supra.
Allowing a trier of fact to draw an inference in a criminal case only if the inference follows with 'impelling certainty' enforces the requirement that, where the people's case is based on circumstantial evidence, the prosecution must negate every reasonable theory consistent with the defendant's innocence of the crime charged.
In a number of cases the evidence has been found insufficient to link a defendant in nonexclusive possession of premises or an automobile to narcotics found on the premises or in the automobile. See Delgado v. United States, 327 F.2d 641, 642 (CA 9, 1964), where marijuana was found in a nightstand near the defendants' bed--there was, said the Court, insufficient evidence 'to support a finding, as to each defendant, that he or she had possession of the marijuana', and Guevara v. United States, 242 F.2d 745, 747 (CA 5, 1957), where marijuana was found on the floorboard of the defendant's automobile between the driver's seat, which was occupied by the defendant, and the passenger seat--the Court said 'for all that the present evidence shows, it is just as reasonable to believe that the cigarettes belonged to the passenger as to the appellant.' Similarly, see People v. Foster, 115 Cal.App.2d 866, 253 P.2d 50 (1953); Kirtley v. State, Supra; Evans v. United States, 257 F.2d 121, 128 (CA 9, 1958). See, also, People v. Burrel, 253 Mich. 321, 235 N.W. 170 (1931).
Although there was sufficient evidence to support the verdict convicting Davenport of possession of marijuana, his conviction must be reversed and a new trial ordered. Davenport and Green were charged with possession of both heroin and marijuana in a one-count information. The jurors were instructed that they could find the defendants guilty if they found that they were in possession of either marijuana or heroin. They rendered a general verdict of guilty and, thus, there is no way of knowing whether they did in fact find Davenport guilty of possession of marijuana or whether their verdict was exclusively based on a finding that he was in possession of heroin. 8
Reversed and remanded for a new trial.
2 Our disposition of this case makes it unnecessary to consider the other assignments of error. We express no opinion concerning these other issues.
3 The police also discovered and seized three marijuana cigarette butts found in Green's...
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