U.S. v. Shurn, 87-2317

• Decision Date: 18 July 1988
• Docket Number: No. 87-2317,87-2317
• Parties: 26 Fed. R. Evid. Serv. 123 UNITED STATES of America, Appellee, v. Charles SHURN, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1090

849 F.2d 1090

26 Fed. R. Evid. Serv. 123

UNITED STATES of America, Appellee, v. Charles SHURN, Appellant.

No. 87-2317.

United States Court of Appeals Eighth Circuit.

Submitted May 12, 1988.

Decided June 16, 1988.

Rehearing Denied July 18, 1988.

C. Clifford Schwartz, St. Louis, Mo., for appellant.

Debra Herzog, Asst. Atty. Gen., St. Louis, Mo., for appellee.

Before FAGG, Circuit Judge, BRIGHT, Senior Circuit Judge, and NICHOL, ^* Senior District Judge.

NICHOL, Senior District Judge.

Charles Shurn appeals his conviction of one count of possession with intent to distribute heroin, a violation of 21 U.S.C. Sec. 841(a)(1) (1982). On appeal he argues that the District Court ¹ erred in denying his motion for judgment of acquittal based upon insufficient evidence. He also contends that the Court erred in allowing rebuttal testimony of Detective Wheeler, in allowing the Government to reopen its case in chief, in refusing his jury instruction, in denying him a Franks hearing, in allowing a jury selection process that prejudiced him and in receiving prejudicial and irrelevant evidence. For the reasons set forth below we affirm.

I. BACKGROUND

On March 17, 1987, detectives with the St. Louis Police Department's Narcotics Unit executed a search warrant at 6027 Suburban, St. Louis, Missouri. Officers had set up a surveillance of this residence prior to the execution of the warrant. With the warrant in hand, approximately 12 members of the surveillance team approached the residence from the rear. As they did, a car with three occupants drove up to the house and one of the occupants yelled out, "The police are coming." The officers then rushed to the house, forced open the door and entered.

Detective Clifford was the first inside and he saw Jeanne Navies run from the hallway and start down the steps. She was stopped and taken down to the first floor. Clifford then began to search the residence, and in the bathroom, on top of a shower stall, he found a rolled up sock containing a black gummy substance which was analyzed and found to be 74.15 grams of 40% pure heroin.

Other officers proceeded to an upstairs bedroom. Behind a closed door the officers found Charles Shurn kneeling on the floor near a gun. Also, found in the bedroom was: a plastic bag containing a gummy substance later analyzed to be 14.25 grams of 47% pure heroin; two dinner plates, one with a white powder residue, later analyzed to be cocaine; a glass; a single playing card with heroin residue; some capsules containing heroin residue; and some personal items belonging to Charles Shurn. The only furniture in the room was an inflatable mattress.

The residence contained another air mattress in the living room, a pool table in the dining room and a semi-furnished kitchen. There was no other furniture. The only other items of interest found in the house were two digital pagers (beepers), a scale, some personal items of the defendant's, and 5 boxes of dormin capsules each containing 72 tablets. ²

II. ISSUES

A. Sufficiency Of The Evidence

Our standard of review regarding the sufficiency of the evidence is well established. We must examine the evidence in the light most favorable to the government, giving it the benefit of all reasonable inferences. We can only reverse if we conclude that a reasonable fact-finder could not have found the defendant guilty beyond a reasonable doubt. See, e.g., United States v. Parrino, 816 F.2d 414, 417 (8th Cir.1987); United States v. Davis, 785 F.2d 610, 619 (8th Cir.1986). This Court may overturn the verdict only if the evidence properly viewed is such that "a reasonable-minded jury must have entertained a reasonable doubt as to the government's proof of one of the essential elements of the offense." United States v. Holm, 836 F.2d 1119, 1122 (8th Cir.1988) (citing United States v. Netz, 758 F.2d 1308, 1310 (8th Cir.1985) (per curiam).

The government had the burden of proving that appellant knowingly possessed heroin with the intent to distribute it. 21 U.S.C. Sec. 841(a)(1); see, United States v. Cardenas, 748 F.2d 1015, 1019 (5th Cir.1984). The appellant contends that the evidence was insufficient for the government to meet its burden of proof. Proof of constructive possession is adequate to satisfy the element of "knowingly" possessing under Sec. 841(a)(1). See United States v. Matra, 841 F.2d 837, 840 (8th Cir.1988) (citing United States v. Wajda, 810 F.2d 754, 761 (8th Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 1981, 95 L.Ed.2d 821 (1987). Constructive possession is defined as knowledge of presence plus control. Id. A person has constructive possession of contraband if he has "ownership, dominion or control over the contraband itself, or dominion over the premises in which the contraband is concealed." Id.; Cardenas, 848 F.2d at 1019 (citation omitted).

After reviewing the record, we conclude that the evidence is sufficient to establish that appellant had constructive possession of the heroin. At the time the search warrant was executed, appellant was found in a bedroom containing only an air mattress. He was dressed only in a bathrobe. He was leaning over a clutter of items which included two plates, a glass, a playing card, a small bag of cocaine, a bag of heroin, and capsules containing heroin. His clothing was in the closet and jewelry with his initials was found on the floor next to the bed. Two digital beepers leased by appellant were found in the living room. In the kitchen, officers found a scale and five boxes of dormin capsules. Also, a large quantity of tar heroin was found on a shower stall wrapped in a sock.

The evidence gives rise to a compelling inference that appellant was not a casual visitor to 6027 Suburban Street. Instead, it appears that appellant controlled the house and the heroin it contained. Based on the record as a whole, we are satisfied there is ample evidence of constructive possession to support appellant's conviction.

The record also contains sufficient evidence to support the second element of Sec. 841(a)(1). The intent to distribute may be proven by either direct or circumstantial evidence and may be inferred from such things as the possession of a large quantity of a controlled substance, its high purity level, the presence of paraphernalia used to aid in the distribution of drugs, large sums of unexplained cash, and the presence of firearms. See, e.g., United States v. LaGuardia, 774 F.2d 317, 320 (8th Cir.1985). In the present case, appellant was found in possession of a large quantity of 40-47% pure heroin, scales and 5 bottles of dormin capsules (known to be cutting agent for heroin), cash found under the mattress in the bedroom, and a gun which was within reach of appellant when the police entered the room. This evidence demonstrates appellant's intent to distribute the heroin.

There was sufficient evidence of appellant's constructive possession of heroin and of his intent to distribute it. Thus, we hold that the District Court did not err in denying appellant's motion for acquittal.

B. Rebuttal Testimony

Appellant asserts that the testimony of Detective Larry Wheeler was improper rebuttal testimony because: (1) he was in court when Jeanne Navies testified, and (2) his testimony could have been received in the case in chief. When the search warrant for 6027 Suburban Street was executed Jeanne Navies was found in the home running down the steps. She was later arrested as a material witness prior to appellant's trial and placed in the U.S. Marshal's Witness Security Program after she agreed to testify for the government. Thus, while Ms. Navies testified, law enforcement officers, including Detective Wheeler, remained in the courtroom despite the court's sequestration order. Some of Ms. Navies' testimony, to the surprise of the government, was different than her prior statements. Thus, Detective Wheeler was called as a rebuttal witness to impeach Ms. Navies. Prior to Ms. Navies' change of heart, the government did not intend to call Detective Wheeler as a witness.

The trial court is given broad discretion in the interpretation of Rule 615, Federal Rules of Evidence. United States v. Williams, 604 F.2d 1102 (8th Cir.1979). The Williams court stated, it is a matter within the discretion of the trial court whether to permit the government's representative to testify, even though the witness sat at the counsel table throughout the trial. Id.; e.g., United States v. Pellegrino, 470 F.2d 1205, 1208 (2d Cir.1972), cert. denied, 411 U.S. 918, 93 S.Ct. 1556, 36 L.Ed.2d 310 (1973); United States v. Wells, 437 F.2d 1144, 1146 (6th Cir.1971). In the present case, Detective Wheeler was only in the courtroom for Ms. Navies' testimony, and then was only called to impeach her testimony.

Furthermore, the purpose of a sequestration order is not applicable to the present facts. The practice of excluding witnesses serves to prevent them from tailoring their testimony to that which has already been presented, and helps to detect testimony that is less than candid. United States v. Perry, 815 F.2d 1100, 1105 (7th Cir.1987) (citing Geders v. United States, 425 U.S. 80, 87, 96 S.Ct. 1330, 1334-35, 47 L.Ed.2d 592 (1976). The testimony, in the present case, was not cumulative, but simply impeaching. ³

Fed. Rule of Evidence 607 provides: "The credibility of a witness may be attacked by any party, including the party calling the witness." Thus, impeachment of Jeanne Navies was not improper and the fact that Detective Wheeler was not called in the government's case in chief was not prejudicial to appellant. ⁴ In the absence of any specific showing of prejudice to the appellant from the action of the trial court, we find no abuse of discretion.

C. Government Reopening Case In Chief

Appellant asserts that the trial court erred in allowing the government to reopen its case in chief to ask a narcotics agent about the use of digital pagers (beepers). ⁵ Detective Leyshock had previously...