State v. Chandler

• Decision Date: 23 March 1995
• Docket Number: No. 15342,15342
• Citation: 119 N.M. 727,1995 NMCA 33,895 P.2d 249
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Lisa CHANDLER, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 249

895 P.2d 249

119 N.M. 727

STATE of New Mexico, Plaintiff-Appellee, v. Lisa CHANDLER, Defendant-Appellant.

No. 15342.

Court of Appeals of New Mexico.

March 23, 1995.

Certiorari Denied May 10, 1995.

[119 N.M. 729] Tom Udall, Atty. Gen., Ann M. Harvey, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

Sammy J. Quintana, Chief Public Defender, Christopher Bulman, Asst. Appellate Defender, Santa Fe, for defendant-appellant.

OPINION

BLACK, Judge.

Information from a confidential informant led to the execution of a search warrant at a Silver City residence leased by Defendant. Police found substantial quantities of cocaine and marijuana, as well as numerous pieces of drug paraphernalia, in several locations throughout the residence. Defendant was convicted of trafficking a controlled substance by possession with intent to distribute and possession with intent to distribute marijuana, contrary to NMSA 1978, Sections 30-31-20(A)(3) and 30-31-22(A)(1) (Cum.Supp.1994). On appeal, Defendant argues that: (1) her convictions are not supported by substantial evidence; (2) the district court abused its discretion in failing to hold an in camera hearing regarding the identity of the confidential informant; (3) the search warrant was based on stale information; (4) defense counsel's failure to challenge police procedures during the raid amounted to ineffective assistance of counsel; and (5) prosecutorial misconduct deprived her of a fair trial. We affirm.

FACTS

On January 8, 1993, police executed a search warrant on the Silver City residence shared by Defendant and her boyfriend, Rick Gomez. The residence is a small house consisting of a living room, kitchen, bathroom, and closet. Gomez had moved into the residence approximately four to six weeks prior to the search.

At the time police entered the residence, four people were present: Defendant, Gomez, Luis Alcorta, and Yvette Chavez. Gomez was on his knees in front of the kitchen counter using a nickel to check the balance on a triple-beam scale. Defendant was sitting on the living room couch.

On the kitchen counter, police also found Gomez's wallet, which contained $320. In a cabinet located above the counter where Gomez was checking the scale, police found a measuring cup containing two plastic baggies of cocaine with a combined weight of 3.72 grams. They also found fifty-five dollars in cash beside the measuring cup. On top of the kitchen cabinets, police discovered another scale and four cookie tins containing more than two pounds of marijuana.

In the living room, police found a red cedar box. The box contained, among other things, a bindle containing .17 grams of cocaine, a baggie and a cellophane cigarette wrapper containing .40 grams of marijuana, five marijuana roaches, two marijuana pipes, a cocaine sniffer, and a gram scale. In the living room closet, police discovered a fishing vest containing approximately forty-eight grams of cocaine. The vest also contained $1,480 in cash. Officer Heidke, who was in charge of the raid, testified that the vest belonged to Gomez. In the closet, police also found a magazine that had been cut up to make bindles for packaging small amounts of cocaine.

During the search, Gomez informed the police that the drugs in the house belonged to him. Alcorta claimed ownership of the triple-beam balance on the kitchen counter, although an engraving on the scale indicated that it was the property of Western New Mexico University.

I. DEFENDANT'S CONVICTIONS ARE SUPPORTED BY SUBSTANTIAL EVIDENCE.

Following the State's case, Defendant moved for a directed verdict on each count. Defense counsel conceded that Defendant may have known about the drugs, but argued that the State had failed to show that Defendant exercised control over the larger quantities of marijuana and cocaine. The district court denied the motion. The jury convicted Defendant on both counts.

At the time of the raid, Defendant was sitting in the midst of a large cache of drugs and drug paraphernalia spread throughout the house. Defendant rented the premises and paid the utilities for what was, in effect, the "business office" of a drug distribution enterprise. In addition to providing this distribution center, Defendant's belongings were found in direct association with the drugs and drug paraphernalia. A complete inventory of the cedar box found in the living room showed that it contained: a bindle containing 0.17 grams of cocaine; a plastic bag and a cigarette wrapper, which together contained 0.41 grams of marijuana; five marijuana roaches; two marijuana pipes; a cocaine sniffer with a trace amount of cocaine; an empty plastic baggie; a video receipt signed by Gomez; a social security card in the name of Defendant's ex-husband; the torn corner of a plastic baggie containing a trace amount of cocaine; a gram scale; nail clippers; a lighter; a plastic container; three pairs of earrings, one with a matching pendant; and some spare change.

To establish that Defendant engaged in the trafficking prohibited by Section 30-31-20(A), the State was required to prove that Defendant had the cocaine in her possession, was aware that it was cocaine, and intended to transfer it to another. See State v. Becerra, 112 N.M. 604, 606, 817 P.2d 1246, 1248 (Ct.App.), cert. denied, 112 N.M. 440, 816 P.2d 509 (1991). Similarly, to obtain a conviction under Section 30-31-22(A), the State needed to establish that Defendant had the marijuana in her possession, knew or believed it to be marijuana, and intended to transfer it to another. SCRA 1986, 14-3104.

Proof of possession of illegal drugs may be established by circumstantial as well as direct evidence. Becerra, 112 N.M. at 607, 817 P.2d at 1249; State v. Donaldson, 100 N.M. 111, 119, 666 P.2d 1258, 1266 (Ct.App.), cert. denied, 100 N.M. 53, 665 P.2d 809 (1983). Possession may be actual or constructive. State v. Brietag, 108 N.M. 368, 370, 772 P.2d 898, 900 (Ct.App.1989). Constructive possession exists when a defendant has knowledge of and control over the drugs. Id. (citing State v. Montoya, 85 N.M. 126, 509 P.2d 893 (Ct.App.1973)). Such constructive possession need not be exclusive. State v. Muniz, 110 N.M. 799, 801-02, 800 P.2d 734, 736-37 (Ct.App.), cert. denied, 110 N.M. 749, 799 P.2d 1121 (1990); United States v. Nelson, 6 F.3d 1049, 1053 (4th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 2142, 128 L.Ed.2d 870 (1994). Constructive possession of sufficient quantities will sustain a conviction of possession with intent to distribute. See State v. Bankert, 117 N.M. 614, 618-19, 875 P.2d 370, 374-75 (1994).

On appeal, Defendant argues that "[t]he evidence in this case may arguably show a rational connection between Ms. Chandler and the items seized (drugs were found in Chandler's house), and yet not prove Chandler's knowledge and intent to exercise dominion and control of those items beyond a reasonable doubt." She further argues that "[e]ven if the evidence showed [that] Chandler knew of Gomez' trafficking and was a drug user herself, the State has not proven the offense charged, that Chandler was herself a trafficker. The evidence simply raises the possibility." (Citation omitted.) We believe that the evidence was sufficient to allow the jury to find guilt beyond a reasonable doubt with respect to every essential element of each crime. See id. at 617-18, 875 P.2d at 373-74.

Convictions for trafficking by possession have been affirmed on analogous facts in other jurisdictions. See, e.g., United States v. Morrison, 991 F.2d 112 (4th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 225, 126 L.Ed.2d 180 (1993); State v. King, 99 N.C.App. 283, 393 S.E.2d 152 (1990); cf. Brown v. State, 428 So.2d 250 (Fla.) (affirming conviction of simple possession on analogous facts), cert. denied, 463 U.S. 1209, 103 S.Ct. 3541, 77 L.Ed.2d 1391 (1983). In United States v. Davis, 562 F.2d 681 (D.C.Cir.1977) (per curiam), the court considered the proper role of an appellate court in evaluating whether similar circumstantial evidence could support a conviction of possession with intent to distribute. Davis lived in an apartment with two friends, one of whom was also his cousin. Id. at 686. The three split the rent, and each had a key. Id. Forty-eight baggies of marijuana and various quantities of LSD, hashish, cocaine, phendimetrazine, and phenmetrazine, along with scales and a marijuana gin, were found in the apartment. Id. at 684-85. At the time of the raid, Davis and one of his roommates were present, but it was the roommate who disclosed the location of large quantities of drugs to the police. Id.

In a per curiam opinion, joined by retired United States Supreme Court Justice Clark, the Davis majority outlined the proper type of evidence required to raise a jury question as to whether a defendant intended to distribute the drugs:

There is no requirement that the government prove that any particular accused possessor intended personally to distribute or dispense. The offense is "possess[ion] with intent to ... distribute, or dispense". 21 U.S.C. Sec. 841(a) (emphasis added). Possession with the requisite intent may be shown by facts other than an intent personally to distribute....

Who the actual distributors or dispensers might turn out to be is not important--what is plain from the evidence is that those who possessed the drugs--and Davis was one of those--clearly intended that the drugs would be dispensed or distributed. Also, from all of this evidence the jury could, and obviously did, find that Davis, from his physical presence in the apartment and his relation to it and its contents, intended to exercise dominion and control over the drugs. On appeal that finding must be credited by the court.

Davis, 562 F.2d at 686 n. 5 (alterations in original).

The Davis majority then dealt with the jury's role in evaluating the defense that the drugs belonged to Davis' roommate:

To assert that one can divest himself of constructive...