Walker v. United States, 73-1563.
Decision Date | 16 January 1974 |
Docket Number | No. 73-1563.,73-1563. |
Citation | 489 F.2d 714 |
Parties | Leroy WALKER, Jr., Appellant, v. UNITED STATES of America, Appellee. |
Court | U.S. Court of Appeals — Eighth Circuit |
Kenneth K. Simon, Kansas City, Mo., for appellant.
J. Whitfield Moody, Asst. U. S. Atty., Kansas City, Mo., for appellee.
Before BRIGHT and STEPHENSON, Circuit Judges, and STUART,* District Judge.
Leroy Walker, Jr. appeals from a conviction of possession with intent to distribute narcotics in violation of 21 U.S.C. § 841(a) (1). We have carefully reviewed the record and affirm the conviction.
On June 13, 1972, special agents assigned to DALE (Drug Abuse Law Enforcement Task Force) broke into an apartment dwelling located in Kansas City, Missouri, and, in the execution of a search warrant, seized quantities of heroin including approximately 32 grams contained in a plastic bag located upon a dresser top in a bedroom. Law enforcement officers found smaller quantities of heroin in the kitchen. The conviction against appellant rested upon the seizure of narcotics in the bedroom. Appellant and the lessee of the apartment, Ms. Gloria Tucker, were within the premises at the time of the search and seizure.
Appellant raises two issues on this appeal. He first claims that the evidence is insufficient to show him in possession of the heroin, arguing that his mere presence within the apartment will not sustain the guilty verdict. Second, appellant claims error in the trial court's refusal to instruct the jury regarding the failure of a party to produce an absent witness. Neither point carries any merit.
Regarding the sufficiency of the evidence, appellant argues that United States v. Bonham, 477 F.2d 1137 (3d Cir. 1973) (en banc), requires reversal since it is on all fours with the circumstances of this case. In Bonham, police executed a search warrant by entering the home of appellant's mother which was occupied by her two accused sons, her daughter, her daughter's husband, and the infant daughter of one son. In searching the shared bedroom of the two sons, police found narcotics concealed in a hidden recess above the bedroom doorway. The court held that this fact, without more, was not sufficient to sustain the conviction, for:
We have no quarrel with this decision, for the Bonham court itself distinguishes a case in which the narcotics are hidden, as in Bonham, from one, like the instant case, where the narcotics are in plain view. 477 F.2d at 1138-1139; cf. United States v. Davis, 461 F.2d 1026 (3d Cir. 1972). Here, the evidence inexorably points to appellant as constructively possessing the narcotics in question. We briefly detail some of the circumstances.
Although Ms. Tucker had rented the apartment approximately one month before the raid, the evidence indicated that appellant was more than a temporary occupant. He possessed a duplicate set of keys to the apartment. Although Walker was discovered in the nude when law enforcement officers entered the apartment, the searchers found the clothes he had been wearing hung in the bedroom closet near where the heroin was found. Other male clothing hung in the closet, his wallet was on the dresser, and sets of underclothing were in the...
To continue reading
Request your trial-
U.S. v. Davis
...were found in a place over which the defendant had special control, such as a closet containing his clothing. Walker v. United States, 489 F.2d 714, 715 (8th Cir. 1974). Or that a particular defendant had in his special control paraphernalia for preparing the drugs for sale or use. United S......
-
U.S. v. Kirk
...these witnesses be produced, it is clear that the trial court did not err in refusing to give the requested instruction. Walker v. United States, 489 F.2d 714 (8th Cir.), cert. denied, 416 U.S. 990, 94 S.Ct. 2399, 40 L.Ed.2d 769 The Pre-Trial Publicity. A review of the record establishes th......
-
U.S. v. Staten
...En banc 1973) (evidence insufficient); United States v. Davis, supra note 45, 461 F.2d at 1036 (evidence sufficient); Walker v. United States, 489 F.2d 714, 715 (8th Cir.), Cert. denied, 416 U.S. 990, 94 S.Ct. 2399, 40 L.Ed.2d 769 (1974) (evidence sufficient). Cf. United States v. Watkins, ......
-
Allen v. State
...witness. United States v. Anders, (8th Cir. 1979) 602 F.2d 823; United States v. Kirk, (8th Cir. 1976) 534 F.2d 1262; Walker v. United States, (8th Cir. 1974) 489 F.2d 714, cert. denied, 416 U.S. 990, 94 S.Ct. 2399, 40 L.Ed.2d Allen has made no attempt to show that only the State could have......