Lewis D. Goldsmith v. S.R. Witkowski, Warden State of South Carolina Attorney General of South Carolina
981 F.2d 697
4th Cir.
1993
Check Treatment

*3 NIEMEYER, Before MURNAGHAN SPROUSE, Senior Judges, and Circuit Judge. Circuit

OPINION Judge:

SPROUSE, Circuit Senior from the appeals D. Goldsmith Lewis his 28 U.S.C. dismissal court’s district corpus. In the for habeas petition § challenged convic- court, Goldsmith district court state for by Carolina a South tions to dis- with intent of narcotics possession narcot- distribute conspiracy to tribute was consti- that the hold ics. We con- tutionally insufficient evi- the State’s victions, part trial violated presented dence right to confront Amendment Sixth smith’s reverse. Accordingly, we witnesses. County, Car- South Police in Greenville and co-defen- olina, Goldsmith arrested on Adele Jordan Cooper and Timmy dants in- in 1988. drug charges separate- tried six counts on dicted co-defendants; court a state ly from charges. He all on guilty him jury found four sentences concurrent received twenty marijuana, possession for years possession $20,000 for fine and a years distribute, ten intent marijua- distribute conspiracy to for years cocaine, na, years four $50,000 posses- The first officer years and a fine for into the testi- twenty entered, distribute, fied that as he Goldsmith was with intent to sion of cocaine sitting dining at a room table. A small conspiracy to years for distribute and ten sitting child was on a sofa. The second appeal the South Carolina Su- cocaine. On officer into the testified that as the convictions for preme affirmed Court entered, standing he Goldsmith was next to intent to distribute and possession with “looking the table and was toward us to marijuana and co- conspiracy to distribute going through see what on as I went caine, simple posses- the two but vacated They subsequently the door.” arrested as lesser included offenses. sion convictions Goldsmith, Cooper, body and Jordan. A S.E.2d 787. pursuant search to Goldsmith’s arrest un- corpus relief in the dis- petition for habeas *4 covered in his sock. No $200 were challenged remaining the four trict court person. found on his that, He contended under the convictions. drug paraphernalia Both narcotics and 443 Virginia, standard of U.S. Jackson table, dining were seized. From the room 2781, 307, 319, 2789, 99 S.Ct. 61 L.Ed.2d gram the officers seized a tenth of a of (1979), presented 560 the evidence at trial (1.54 scale, straw, grains), a cocaine a convictions, insufficient to sustain the was rolling papers. bags marijuana Two of hearsay and that the elicitation of testimo- legs. were recovered near one of the table police ny from a officer violated his Sixth larger bags The of the two was concealed right Amendment to confront witnesses. shopping bag in a and contained 310.92 petition, The district court dismissed his grams marijuana; bag the of smaller con- appeals. and he grams. tained 113.4 More evidence was cabinet, found in a closed kitchen the freez- I er, and the master bedroom. Officers foil, wrapped seized cocaine in aluminum a challenge, To assess Goldsmith’s we cocaine, scale, revolver, bag containing a a produced the evidence at trial “in review plastic cup containing a covered coffee light prosecu most favorable to the seeds, marijuana bag marijuana, a small Jackson, tion.” 443 U.S. at 99 S.Ct. at plastic a containing lunch box sand- 2789. The trial evidence consisted of both bags wich with the cut corners out. physical uncontested testimo police ny from the five officers who marijuana Both the cocaine and the were apartment where searched Goldsmith in plain Goldsmith’s view. The officers arrested. It demonstrated that on gram testified that the one-tenth of a 22, 1988, July deputies dining five narcotics cocaine on the room table was in County plain sight, Goldsmith’s as the Department Greenville Sheriff’s search be- gan. larger bag One testified that the apartment Taylors, searched an South marijuana shopping was in bag on the Carolina. The officers made the search floor, but that Goldsmith could not have pursuant to a valid warrant. Two officers seeing bag avoided the smaller from where approached apartment building from he standing.1 the front and three from the rear. The former testified Goldsmith’s co-defen trial, At the officers testified that Timmy Cooper they dant was outside when apartment residence; was not Goldsmith’s police, Upon seeing Cooper arrived. they identify did not who or rented owned apartment through ran into the the front apartment. None of the officers could assigned door. The three officers to the say they that at the time at the arrived building rear of the entered the apartment building in the Goldsmith was through door overcoming testified, the back after apartment. presume One “I he Cooper’s attempt entry. inside, to bar their him outside.” we didn’t see bags requires Another officer testified that both of mar- Jackson review the evidence in us to ijuana shopping bag light prosecution, were in the on the floor most to the we favorable the accept view, plain although testimony bag and were therefore not in that the smaller they plain were within Goldsmith's reach. Because was in Goldsmith's view. Another, proximity resi- and his asked who was when arrived, answered, drug paraphernalia, “I narcotics and police which he dence when mean, plainly got I could see. Under South say, I when there.” Carolina can’t

law, jury may properly knowledge infer from such circumstances. See State v. A Foster, S.C. S.E.2d Looking first at the evidence case, courts state in this how- uphold if it is sufficient to Gold determine ever, point any did not evidence from possession with two convictions for smith’s which a could infer dominion or con- marijuana, intent distribute cocaine Nor do requisite trol. we find such record light “in the most favorable we view it that element of the state of- prosecution,” and consider whether as meet fense would the Jackson stan- could found “any trier fact have rational dard.2 beyond crime essential elements of that Jackson, at doubt.” 443 U.S. reasonable Essentially, government only 99 S.Ct. proved presence apart drugs. ment and awareness of the Un law, South a con Under Carolina law, presence mere der Carolina South *5 possession for the crime of with the viction person containing drugs, in area of a an course, distribute, requires intent to of evidence of his and control absent dominion drugs, of and either proof possession of them, is prove pos over insufficient to possession or constructive is suffi actual drugs. Tabory, of session State v. 260 44-53-370(a)(l); cient. S.C.Code Ann. § 355, 111, (1973). 196 S.E.2d 113 S.C. 12, 408, Ellis, v. 263 207 S.E.2d S.C. State Again, presence coupled even with knowl (1974). not 413 Because Goldsmith did edge drugs of is insufficient sustain possession drugs of the in the have actual conviction; possession a the State must pos proof of his constructive apartment, prove also dominion control. See Kim required. person A has con session was brell, 631. if this 362 S.E.2d at Even were drugs if he has possession structive of law, process protections not state the due drugs knowledge presence of the of view, Jackson, require the of in our would control, right dominion and or solely on invalidation of convictions based control, dominion and over exercise presence, of mere as was estab 413; Ellis, drugs. 207 S.E.2d at also see in case. lished 51, Kimbrell, 294 v. S.C. 362 S.E.2d 630, (1987) possession (holding 631 that control, Proof dominion and in trafficking the crime of co element of course, may evidence that the ac include proof of and intent to requires power caine premises where the controlled the cused control). possession may Constructive be special he had a drugs were found or that by circumstantial evidence. El established relationship the owner or lessor of with lis, 207 S.E.2d Brown, 267 v. S.C. premises. See State 674, Court, 311, (1976) (reversing Supreme 227 676 S.E.2d

The South Carolina for insufficient evi concluding pos possession conviction in the convictions in passenger where defendant was a with intent to distribute narcotics dence session marijuana, by containing eight pounds of sufficiently supported the evi a car were dence, presence in did not that defen- where State show considered Goldsmith’s but drug para- twenty- putative possession possession of the of more than smith’s It is true that grains dis- grams marijuana phernalia to he an intent to eight ten of co- infer that had or Adams, 291 S.C. prima case 44-53-370(d)(3). cocaine. See State v. a facie of intent tribute caine establishes 132, 483, Missing from 485 S.C.Code Ann. 352 S.E.2d § distribute. proof, apart- necessary structure quantity present and cumulative however, requirement for the require- initial this threshold was the ment more than satisfied possession, possession. in Although proof of Proof of of cocaine recov- ment. amount turn, proof statutory of Goldsmith’s dependent was on than minimum for ered was less drugs drug over the or establishing prima case of intent to dis- dominion and control facie tribute, paraphernalia. jury could well have relied on

702 entered, another, they with car’s owner when asked who special dant had relation defendant exercised began, its driver or that or was inside before the search re- Hudson, car); State v. control over sponded, say.” “I can’t There was no evi- cf. (1981) 284 S.E.2d apart- dence that all the entrances of the heroin, (holding that seized building ment were under observation. defendants, by the apartment from shared Cooper Both and Jordan were close to the posses- control show was sufficient to building, may and Goldsmith have been sion). courts have also The South Carolina co-defendant, both, waiting for either or of dominion and con- accepted proof other return from outside. The record evidence support finding trol as sufficient to of does not indicate whether Goldsmith had Ellis, possession. S.C. See State apartment previous been at the on occa- (1974) (reversing pos- S.E.2d sions or how he came to be there when he appellant session conviction where resided Moreover, arrested.3 did heroin in which sales occurred attempt dispose to hide or during sales, present where and was but police. or to evade the The trial evidence appellant partici- not show that State did simply did not demonstrate that Goldsmith pated any way in the sales or other “alone” in a sense that would have control); Kimbrell, exercised 362 S.E.2d cf. allowed infer that he had the evidence, (holding at 631 which right to exercise dominion and control over accomplice showed told defendant to watch apart- or the contents of the outside, cocaine while former went ment. conviction). support sufficient to Because the trial evidence was constitu- holdings We have no doubt that such com- tionally finding insufficient to port standard. Jackson *6 that had dominion and Goldsmith control case, however, prosecution In this cocaine, marijuana over the or the we find presented only evidentiary picture an of an that there was insufficient evidence to find sitting accused at a table laden with narcot- possession drug. that he had of either paraphernalia apart- narcotic in an ics and Therefore, we reverse the two convictions drugs paraphernalia ment where other with intent to distribute. The were later discovered. State did not identify the or the lessee of the lessor B

apartment. identify It did not the small apartment, in the or the child who was Likewise, viewing after the evi relationship any the child and between light “in dence most favorable to the Further, the defendants. the State failed prosecution,” we find the evidence insuffi among any to establish connection conspiracy cient to convictions. co-defendants, or smith and his two be- Jackson, 319, 443 U.S. at 99 S.Ct. best, tween the co-defendants. At pres- State’s evidence showed Goldsmith’s Conspiracy defined under is person’s apartment ence in an unknown South Carolina law as “a combination be knowledge drug para- and his persons purpose tween two or more for the phernalia apartment. in the accomplishing a criminal or unlawful object object or an neither criminal nor It is true that Goldsmith was alone by criminal or unlawful unlawful means.” apartment, except presence for the of the Ann. 16-17-410. In order to S.C.Code child, § small at the time of the officers’ person conspiracy, convict a the State entry. say, No witness was able to howev- conspira must first show the existence of a er, in the who was before Hiott, 72, cy. 276 S.E.2d police why State v. 276 S.C. entered or Goldsmith was there. (1981). 163, only “pre- Supreme 166 The Court of One officer testified that he “that a formal sumed” that Goldsmith was inside before South Carolina has held disregard police jury properly the state- One officer testified that the "had infor- was told Cooper that part mation Mr. Goldsmith and Mr. II. ment. See discussion infra search, present would be at the time” of the but

703 presence necessary police to es- because the had additional agreement is express may tying apartment, it Goldsmith to conspiracy, and that be tablish the Cooper, ongoing drug conspir- and the and to an by circumstantial shown Oliver, acy.” v. parties.” State conduct 529, 79, 530 267 S.E.2d agree We with the South Carolina the exis- prosecution establishes

After Supreme attempt that by Court the blatant prove only a conspiracy, it need of a tence prosecutor strengthen obviously an conspiracy slight connection between egregious weak case was an constitutional him of know- to convict and the defendant however, disagree, error. We with its con conspiracy. ing participation in the clusion that the error was harmless.4 838, 35, Sullivan, S.E.2d 277 282 v. S.C. Dunn, (1981) v. (quoting by United presumption 843 States The cure a Cir.1977)). 348, (9th F.2d 357 564 court’s instruction is overcome when there “ ‘overwhelming probability’ an is however, here, presented no The State jury will unable be to follow court’s circumstantial, evidence, to show the even instructions, strong and a likelihood that conspiracy. Even had there existence of a the effect of the evidence would be ‘devas one, no evidence show been there was tating’ Miller, to the defendant.” Greer v. true, is as participation. It 756, 8, 3102, n. 483 U.S. 766 107 S.Ct. 3109 noted, have jury that the could previously 8, (1987) (quoting n. 97 618 Rich L.Ed.2d knowledge of the inferred Goldsmith’s 208, Marsh, 200, ardson 481 U.S. juror drugs. A reasonable could have be- (1987); S.Ct. 95 L.Ed.2d waiting a lieved user Goldsmith States, 123, 136, Bruton v. United U.S. or purchase, a friend of the owner make (1968)). 88 S.Ct. 20 L.Ed.2d apartment, perhaps or even an lessee of the devastating Here the officer’s answer was conclusion, however, that interloper. A By telling the to the defense. part conspiracy to dis- police would be at knew Goldsmith cocaine, requires tribute or time, specific supplied at a it gap spec- evidentiary with rank bridging an missing jurors link State’s case. ulation. per could then that Goldsmith believe *7 sonally police to known the and known II apartment and with the the to be connected peti also asserted Goldsmith drug operation The statement inside. right to tion that his Sixth Amendment Cooper, to and intimated linked Goldsmith the was violated when confront witnesses operated out of the that the two somehow evidence, hearsay and that introduced longer no together. There was apartment denying trial defendant’s court erred an inno possibility that Goldsmith complains mistrial. Goldsmith motion for a waiting to make a cent visitor or a user trial was tainted when that the entire target of a purchase; he was the identified “[W]hy prosecutor deputy, state asked a confederate of investigation and police y’all search warrant that did serve the was not harmless Cooper. The statement responded, had day?” the officer “We and conspiracy convic regard with to the error Mr. that Mr. Goldsmith and information jury could have inferred from tions. The Al Cooper present at the time.” would be conspiracy testimony that a existed though the trial court sustained defense it. participated in Goldsmith jury objection and instructed the counsel’s answer, harmless was the statement con Nor disregard Goldsmith regard to the convictions “left an error with that the officer’s statement tends narcot with intent to distribute impression jurors’ fixed in the indelible allowed response The officer’s a case of mere ics. minds that this could be 18, 24, 87 California, U.S. S.Ct. Chapman 824, 828, 386 error v. In to show that constitutional order (1967). prove it prejudicial, the State must was not 17 L.Ed.2d 705 beyond doubt. See a reasonable is harmless Considering argument, first special had a Goldsmith’s infer that Goldsmith jury to begin by recognizing that two state we apartment and with relationship with have reviewed Goldsmith’s convic courts therefore, had that Goldsmith Cooper, and sufficiency of the evidence and tions for and control exercise dominion right only is to assure that South that our role contents. Evi- apartment and its over the compliedwith federal constitution Carolina would have and control dence of dominion convicting requirements al when Gold missing link in the the other established Virginia, 443 U.S. smith. See Jackson case, providing the crucial element State's 2790-91, 307, 322-23, 99 S.Ct. possession with intent offense of imposition L.Ed.2d 560 While best, presenta- At narcotics. distribute of substantial of a sentence absence testimony represented deputy’s tion of deny of criminal conduct would worst, At it could be prosecution. loose process, I that that due submit present through the attempt an seen as carefully here. We must was not the case failed, for the State had door what back limit our review to the issue of constitution reason, through appro- present whatever resisting any sufficiency, scrupulously al prosecutorial evidence. priate temptation interpretation our to substitute of the evidence for that of South Car Ill —West, jury. Wright v. U.S. olina See —, —, 2482, 2492, S.Ct. judgment of the district court is (1992) (“In Jackson, we em L.Ed.2d 225 entry and the case remanded for reversed repeatedly the deference owed to phasized granting an order the writ habeas and, correspondingly, trier fact corpus. sharply limited nature of constitutional suf REMANDED. REVERSED AND review.”) (Thomas, J., ficiency plurality opinion). NIEMEYER, Judge, dissenting: Circuit supporting con- The evidence by a D. Goldsmith was convicted Lewis. 22, 1988, July from the viction stems state of six counts— South Carolina Cooper’s apartment. Timmy search of possession marijuana two counts each of dispute There that state law enforce- is no cocaine, possession intent to dis- proper- that search ment officers conducted tribute, conspiracy to distribute. On pursuant to a valid ly. The search was Supreme appeal, the South Carolina Court warrant, probable cause to believe ille- “simple possession” convictions vacated occurring gal activities were within and affirmed as lesser included offenses by a “controlled was established remaining on the counts. the convictions buy” illegal substances in the petition On this for a writ of habeas cor- day. earlier that pus, us Goldsmith would now have review *8 only people Cooper’s apartment The in because, again, principally his convictions were immediately the search before contends, he the evidence was insufficient At the time of the smith and a small child. in support to the convictions. As he stated sitting found at the search Goldsmith was petition: In front of him on the table kitchen table. prove that the Petitioner The state fail to drug paraphernalia, powder, cocaine were any knowledge Drugs had of the that (ex- rolling a “tube straw” papers, and Home, and was found at another Persons a straw that plained by the officers to be looking light in at the in most Evidence inhaling in cut down for use had been State, to the there was not favorable floor, cocaine). “right beside” On to evidence that would allow State table, marijuana. large bags two of were beyond guilty find the Petitioner a rea- in drugs found front of In addition to sonable doubt. defendant, co- seized additional officers pack- foil complained marijuana, has also about the and aluminum Goldsmith caine them, scales, plastic a possible ages in jury’s consideration stricken with cocaine seeds, handgun and cup marijuana a testimony prejudicial. that he contends was with clearly and visi- Goldsmith, spiracy. Next to the table officers arresting Upon cash. bags marijuana, in were the two in cash hidden ble $200 he had discovered grams of which contained 113.4 smaller his sock. ounces). (several one ounce Possession of quantities to the substantial In addition prima a facie case establishes paraphernalia drug-related drugs and law of intent to dis- under South Carolina surrounding found, events 53—370(d)(3) S.C.Code tribute. See § 44— in- that he was provided arrest 1990). (1988) (amended the amount While law Cooper. When enforce- volved on the table at which Goldsmith of cocaine in the search arrived before ment officers seated, (1.54 gram grains), was not .1 was Cooper’s apartment parking area prima to a by itself sufficient establish which identified jackets” in “raid dressed distribute, of intent to see facie case Cooper, who deputies, as sheriff's them 44-53-370(d)(3) (possession of S.C.Code § outside, door of to the back ran then was prima grains of cocaine establishes ten back the door and “slammed distribute), to when facie of intent case was arm as officer] on [the officer’s] [the particu- present, are no drug paraphernalia Cooper then ran into go in.” trying to sup- necessary cocaine is lar amount of A he was restrained. living room where finding of intent to See port a distribute. small woman, mother of the possibly the Adams, 291 S.C. 352 S.E.2d apartment when child, was outside case, in (1987). In this addition remained outside and arrived the officers in on the table drug paraphernalia arrests. search and during the scales, Goldsmith, packaging, front of presented at trial only evidence The apart- seized from more cocaine were of his inBut that of the State. also admitted that ment. Evidence was corpus Gold- of habeas petition for a writ a con- officers had made showed that the contended: smith apartment earlier. buy from the trolled Morn- is that on the Position Petitioners need not find conspiracy, jury find a To 22, 1988, stop by the He did July ing of may infer an agreement, explicit an but Timmy Cooper, the CO- Home of One agreement from circumstantial Case, However to the Defendant State v. Oli- parties’ and the conduct. See was no Knowledge there His best of ver, 267 S.E.2d Opening that he in the out found properly concluded Question, could have jury see, at the time that Could drug oper- Cooper was involved on Parole and that That the Petitioner support a con- ation, finding necessary to the CO-Defen- called over to that He had Cooper recog- When Home, arrangements spiracy conviction. made dants officials had nized law enforcement Money that the amount barrow scene, apart- he to the ran arrived at Ends Meet.... His needed make them and in an effort exclude ment he added). His contention that (Emphasis activity inside. drug thereby protect not there- any drugs and was not see did evidence, a ra- the circumstantial From all directly drugs is any involved with fore did, could, conclude tional sever- testimony of the by the contradicted conspiracy. in a was involved on the officers, saw cocaine all of whom al marijuana on bags of large two table by Goldsmith finding A *9 floor. the To element. remains the crucial therefore Carolina possession under South establish case is in this whether critical issue The power to the law, both must show the State from which evidence is sufficient there to control drugs and the intent pos- control the was in infer jury could case both In this or use. disposition their if drugs. Even the the session of presence from inferred may be only possession in found he was on a table in front of Goldsmith drugs the table where he drugs at and about actu- “Because sitting. only he was pos- which seated, find both permissibly it could drug is of a presence knowledge of the al con- distribute and to session with intent Goldsmith, 463, 392 S.E.2d dis- v. 301 S.C. control its of intent strong evidence (1990). equated knowledge may be use, position or intent element. for the or substituted the district I affirm Because would cir- from the inferred may be Possession writ, respectfully I denial of the court’s Kimbrell, v. cumstances.” dissent. (citation (1987) omit- 630, 631 51, 362 S.E.2d light favorable to most ted). in Viewed admitted in properly State, the evidence infer that jury to permits case

this apartment, Goldsmith, only adult in drugs at least the of at inwas found table, all if not apartment. throughout America, STATES UNITED inferences, the permissible Rejecting Plaintiff-Appellee, has, my judgment, opinion majority v. light most in a evidence failed take PICHE, Defendant-Appellant. Ray Lloyd concluded and has the State favorable con- trial that, “because America, STATES UNITED support a find- stitutionally insufficient Plaintiff-Appellant, and con- dominion had ing that Goldsmith v. or the cocaine” the trol over the respectful- I PICHE, Defendant-Appellee. must be reversed. Ray Lloyd convictions disagree. ly 91-5692, Nos. 91-5705. is that the argument second Appeals, Court of United States a mistrial in to order judge failure of Fourth Circuit. testimony hearsay striking the addition to rights. Amendment his Sixth violated 8,May Argued objection defendant’s sustained trial court 25, Nov. Decided curatively questionable to the considering the ef- In jury. instructed introduced, we improperly fect of evidence case, In this it in context. look at must added little to would have

stricken evidence the evidence was Because case. the State’s conviction, adequate otherwise improp- that the evidence I would conclude question and an- single erly introduced —a objection by an followed promptly swer deny instruction —did a curative Miller, process. See Greer smith due 107 S.Ct. 483 U.S. L.Ed.2d against Gold- presented case While the one, it overwhelming not an smith was and did by sufficient evidence supported I rights. fear his constitutional not violate been led not has case the Court under the Four- review ato constitutional Amendment, garden variety to a but teenth issues raised appellate of the same review *10 by, before, properly disposed See Supreme South Carolina Court.