State v. Griffin
| Decision Date | 07 May 1998 |
| Docket Number | No. 97-0914-CR,97-0914-CR |
| Citation | 220 Wis.2d 371,584 N.W.2d 127 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, d v. John L. GRIFFIN, Defendant-Appellant. dd |
| Court | Wisconsin Court of Appeals |
On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, Attorney General, and Marguerite M. Moeller, Assistant Attorney General.
Before EICH, C.J., DYKMAN, P.J., and DEININGER, J.
John Griffin appeals from a judgment convicting him of possession of marijuana, possession of cocaine, and bail jumping. He also appeals from an order denying his motion for postconviction relief. He argues that the evidence was insufficient to prove beyond a reasonable doubt that he committed any of the three offenses. We conclude that no reasonable jury could have found Griffin guilty of possession of cocaine. Accordingly, we reverse the conviction on the cocaine possession charge. We also conclude that the evidence was sufficient to establish that Griffin was guilty of marijuana possession and bail jumping. Accordingly, we affirm the marijuana possession and bail jumping convictions.
Griffin raises several other arguments. He argues that: (1) the evidence obtained as a result of his arrest should have been suppressed because his arrest was not supported by probable cause; (2) the trial court erroneously exercised its discretion when it did not sever the bail jumping charges from the possession charges; (3) he was deprived of his right to a fair trial and his right to effective assistance of counsel when the trial court gave insufficient and prejudicial jury instructions; (4) the trial court erroneously exercised its discretion in admitting evidence that was irrelevant and unduly prejudicial; and (5) a new trial should be ordered in the interests of justice. We reject each of these arguments. Accordingly, we affirm in part, reverse in part, and remand for the trial court to vacate the cocaine possession conviction.
Griffin was charged with possession of marijuana, possession of cocaine, and five separate counts of bail jumping. 1 The possession offenses were alleged to have occurred in Rock County on or shortly before April 9, 1996. Four of the bail jumping counts alleged that Griffin did not remain inside his residence between 9:00 p.m. and 6:00 a.m. as required by his bail bonds for four other charges. The other bail jumping count alleged that Griffin failed to comply with the terms of a bail bond when he committed a crime.
Prior to trial, Griffin moved the court to sever the bail jumping counts from the drug possession counts. The trial court denied the motion. On the date of trial, Griffin renewed his severance motion, but this time he requested only that the court sever the bail jumping charges alleging that he did not remain inside his residence between 9:00 p.m. and 6:00 a.m. The trial court again denied the motion.
At trial, Officer Orville Kreitzmann of the State Line Area Narcotics Team (SLANT) testified that on April 9, 1996, at approximately 1:00 p.m., several SLANT officers executed a search warrant for controlled substances During the search, officers found three "blunts" hidden in the kitchen. Kreitzmann described a "blunt" as a hollowed-out cigar used to smoke or conceal controlled substances. Chemical testing of the blunts revealed that they contained THC, the biologically active substance in marijuana. Officer Kreitzmann testified that the odor of marijuana was prevalent throughout the apartment.
at an upstairs, two-bedroom apartment located at 1864 1/2 Park Avenue in Beloit. About a half-hour earlier, Kreitzmann had observed John Griffin leave the apartment. Upon entering the apartment, Kreitzmann encountered Cynthia Davis, who lived at the apartment. Two other adults were also in the apartment.
Officers also found a piece of coat hanger about five inches long in the hallway of the apartment. Kreitzmann testified that drug users commonly place cotton balls or some type of cloth on the end of a section of coat hanger, dip the cloth in flammable liquid, and ignite the liquid. The "torch" is then used to smoke a controlled substance such as crack cocaine or marijuana or to cook cocaine, transforming powdered cocaine into crack cocaine. Kreitzmann considered the piece of hanger to be drug paraphernalia.
In addition, officers found a number of sandwich baggies in the garbage with the corners removed. Kreitzmann testified that controlled substances are most commonly packed in plastic sandwich bags. In his opinion, the corners of the baggies found in the garbage were probably used to package a controlled substance, most likely crack cocaine. No cocaine was found in the apartment, however.
During the search, officers found two photographs taken of Griffin while he was inside the residence. They also found several items of men's clothing, including a pair of blue jeans in which they found $3500 in money orders payable to Griffin. To Kreitzmann's knowledge, Griffin had never held a job.
While the search was in progress, outside surveillance observed Griffin approaching the residence. Kreitzmann went outside to meet him. When Griffin was fifteen to twenty feet from Kreitzmann, he turned away and placed his hands behind his back "in the classic handcuff position." Kreitzmann immediately went to Griffin and placed handcuffs on him, advising him that he was under arrest. When Kreitzmann was in close proximity to Griffin, he could smell marijuana on his clothing and on his breath.
Kreitzmann seized $764.90 from Griffin. A drug-detecting dog twice located a hidden envelope containing the currency seized from Griffin. The dog is unable to distinguish between marijuana, cocaine and heroin, however.
Police obtained a search warrant to obtain blood and urine samples from Griffin. A state crime lab analyst testified that the urine sample tested positive for cocaine, cocaine metabolite and THC metabolite, while the blood sample tested positive for THC metabolite.
Griffin's sister, Kathryn, testified that Griffin lived with her at 1913 Church Street and that he was always home at night. She testified that on several occasions, Cynthia Davis took articles of Griffin's clothing from 1913 Church Street to take home with her to wash.
The jury found Griffin guilty of possession of cocaine, possession of marijuana, and bail jumping for committing a crime in violation of his bail bond. The jury found Griffin not guilty on three of the bail jumping counts alleging that he failed to remain inside his residence between 9:00 p.m. and 6:00 a.m. The trial court dismissed the other bail jumping count as multiplicitous.
Griffin filed a motion for postconviction relief, which the trial court denied. Griffin appeals.
Griffin argues that the evidence was insufficient to prove beyond a reasonable doubt that he was guilty of possession of cocaine, possession of marijuana, or bail jumping. In State v. Poellinger, 153 Wis.2d 493, 507, 451 N.W.2d 752, 757-758 (1990), the court set forth the test for reviewing the sufficiency of the evidence [I]n reviewing the sufficiency of the evidence to support a conviction, an appellate court may not substitute its judgment for that of the trier of fact unless the evidence, viewed most favorably to the state and the conviction, is so lacking in probative value and force that no trier of fact, acting reasonably, could have found guilt beyond a reasonable doubt. If any possibility exists that the trier of fact could have drawn the appropriate inferences from the evidence adduced at trial to find the requisite guilt, an appellate court may not overturn a verdict even if it believes that the trier of fact should not have found guilt based on the evidence before it.
(Citations omitted.)
The first issue we confront is whether the presence of cocaine, cocaine metabolite and THC metabolite in Griffin's urine and the presence of THC metabolite in Griffin's blood is sufficient, in and of itself, to uphold the marijuana and cocaine possession convictions. No Wisconsin court has addressed the issue of whether the presence of drugs in one's urine or blood stream is sufficient to support a possession conviction. However, the great majority of courts in other jurisdictions considering the question have held that the presence of a controlled substance in one's urine or blood, without more, is insufficient evidence on which to base a conviction for possession. 2
Like other jurisdictions, to be found guilty of possession of a controlled substance in Wisconsin, the defendant must have had the substance under his or her control and must have knowingly possessed the substance. See WIS J I--CRIMINAL 920; Poellinger, 153 Wis.2d at 508, 451 N.W.2d at 758. Because our law of possession is similar to other jurisdictions, we follow those jurisdictions which have held that the mere presence of drugs in a person's system is insufficient to prove that the drugs are knowingly possessed by the person or that the drugs are within the person's control. Accordingly, we conclude that the presence of drugs in Griffin's urine and blood stream, without more, is insufficient evidence on which to base a possession conviction.
Although the presence of drugs in someone's system, standing alone, is insufficient to support a conviction for possession, the presence of drugs is circumstantial evidence of prior possession. See Kansas v. Flinchpaugh, 232 Kan. 831, 659 P.2d 208, 212 (1983). "Although insufficient by itself to support a conviction, when combined with other corroborating evidence of sufficient probative value, evidence of assimilation can be sufficient to prove possession beyond a reasonable doubt." Washington...
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