*1 PLAINTIFF-APPELLANT, JERSEY, STATE OF NEW BROWN, LEE WILLIE DEFENDANT-RESPONDENT.
Argued July 1979. November 1978 Decided *2 General, Mr. ar- Solomon Bos&ngarten, Deputy Attorney John J. Degnan, Attorney for gued appellant ,(Mr. cause General of Jersey, attorney). Few Luhin,
Mr. Counsel, Michael I. Designated argued Ness, Van De- Stanley cause for G. Public respondent (Mr. fender, attorney).
The was opinion delivered by court Handler, J. A Hudson Grand County Jury indicted Leona, Willie Lee Brown and wife, on un- counts charging lawful possession of heroin unlawful and heroin ¡SI- with distribute, intent to of N. J. A. violation SO and S. A. (a) N. J. a 19(a) sev- (1). Eollowing 24:21 — erance, defendant Willie Lee Brown moved suppress to the evidence obtained the search of his during con- apartment, that tending the affidavit the underlying search warrant had failed to probable establish cause. motion denied and was the ease to trial. proceeded
The crux of appeal, the as certified by Court, this 77 N. J. (1978), the sufficiency of State’s evidence to sup- port defendant’s convictions. The State’s at proofs trial showed from generally May 1971 through May Edward Detective Myers, member of the Jersey City Police Department Farcotics Squad, sat in a black van out- side a red four-story brick dwelling, front containing and back apartments, located at 185 Avenue, Monticello Jersey City, and conducted a surveillance suspected narcotics op- Erom erations. vantage point Myers noticed about 20 to males, several including known users, narcotics enter the On May afterward, exit surreptitiously. and, soon building, City Municipal Jersey to tbe Myers applied 16 Detective of Apartment premises search the for a Court warrant thereafter, armed Shortly watched. he had building officers con- police five other warrant, Myers with admitted into They 10. a search of Apartment ducted Brown at the After frisking the defendant. by the apartment found bedroom where he a rear door, into proceeded Myers en- with 12 glassine Young named Wallace an individual in his pants pocket. right powder white velopes containing he found where different bedroom officer entered a Another inside powder white envelopes containing 50 glassine Further closet. search in the bedroom of a white dress pocket and elastic empty bags uncovered glassine of the apartment nar- packаging used for bands, customarily paraphernalia contents, which were and their cotics. The 50 envelopes $3 valued heroin, were evidence. It admitted into arrest, $250. After his defend- or $5 $150 between bag lived in the apartment. he ant admitted to the police moved case, At conclusion of State’s the defendant for a verdict of both He stressed acquittal directed counts. the absence of whether the testimony indicating quantity sale, of heroin for personal found was consumption individuals any failure to establish connection between the who had left surreptitiously and the apartment building heroin found in the failure establish Brown’s Apartment residency the lack of conduct apartment, culpable absence of any money the apart- *4 ment. motion was denied. The defendant then rested and, instructions, and following summations the case was submitted to the which jury returned a unanimous verdict on both counts. A guilty post trial motion to vacate the convictions new trial on the grant that the ver- grounds dict was against evidence and would weight pro- manifest denied injustice was, duce and defendant there- after, sentenced concurrent terms at the State Prison of three to on years five the two counts.
On the appeal to the Division Appellate primary contentions were that the lacked prob search warrant able cause and the erred in trial court the motion for denying trial, a new jury’s since verdict was against weight of the еvidence. The Division, in a curiam Appellate per de reported cision at 157 N. J. Super. reversed (1978), remanded for of a entry judgment acquittal.1 Applying 71 N. J. Sapp, on 476 (1976), rev’g dissenting opin ion below, 144 N. J. Super. Div. (App. 1975), concluded that the State’s case was as a matter of insufficient law. 157 N. J. Super. at 114. The court also ruled that the trial court’s charge possession constituted Id. error. 116-117. The suppression issue was not treated. We now re verse and remand.
The primary argument
in this
presented
appeal
whether there was sufficient evidence to find defendant guilty
of the constructive possession of heroin as well as its posses
sion with intent
distribute. The
basic test to be applied
challenging
sufficiency of the
evidencе
whether, viewing the
entirety,
State’s evidence in its
be that evidence
circumstantial,
giving
direct
the State the benefit of all
its
testimony
favorable
as
as
well
all of the favorable inferences which
reasonably
therefrom,
could be drawn
a reasonable
could find
guilt
charge beyond
a reasonable doubt.
Reyes,
[State
N.
J.
(1967)].
This standard is consistent with that articulated by the
United
Supreme
States
Court which stated recently in Jack-
son v. Virginia,-U.
S.-,-,
n. 2. For of this we of the case.
592
Winship,
1068,
358,
25 L.
2d
S.
Ed.
[In re
397 U.
90
After
S.
Ct.
sufficiency
inquiry
(1970)]
of the
on review
the critical
368
simply
support
de
a
must be not
to
criminal conviction
evidence to
instructed,
jury
properly
but
to determine
termine
the
whether
support
reasonably
finding
a
of
could
whether the record evidence
inquiry
require
beyond
guilt
does
a
But
reasonable doubt.
the evidence at
the
itself
it believes
court
to “ash
whether
a
Woodby
INS,
beyond
guilt
v.
a
doubt.”
reasonable
trial established
483, 486,
276, 282,
L. Ed. 2d
Instead
Ct.
17
U. S.
87
385
S.
362.
viewing
question
whether,
the evidence in the
after
is
relevant
the
any
prosecution,
of fact
light
rational
trier
to
most
the
favorable
beyond
the
a rea
of
crime
the
elements
have found
essential
could
362,
356,
Louisiana,
S.
406 U.
92
S.
Johnson
sonable doubt. See
gives
play
1620,
full
standard
2d
This familiar
Ed.
33
152.
Ct.
L.
fairly
responsibility
to
conflicts
of fact
resolve
of
trier
the
to the
weigh
evidеnce,
testimony,
infer
and to draw reasonable
the
to
a
Once
defendant has been
facts.
from
facts to ultimate
ences
basic
weigher
charged,
guilty
fact-finder’s role as
crime
found
legal
upon
through
preserved
conclusion that
a
is
of the evidence
judicial
light
in the
be considered
evidence is to
all
review
impinges upon
prosecution.
criterion thus
most
to
favorable
necessary
guarantee
only
“jury”
the funda
discretion
extent
(footnotes
(em
omitted)
process
protection
of law.
of due
mental
phasis
original).
This Court has
a jury
decided
generally
draw an inference from a fact whenever it more probable
true;
not that
than
the inference
each in
veracity
not be
ference need
established
reasonable doubt in
beyond
DiRienzo,
order for
State v.
draw
inference.
States,
N. J.
376
360,
also,
53
See
United
(1969).
Leary
S. 6, 36,
1532,
395 U.
89
Ct.
1548,
S.
23 L. Ed. 2d
82
57,
Nevertheless,
the State’s
benefit of
(1969).
right
rea
sonable inferences should not be
or lighten
used to shift
burden
become a
to reduce
proof,
bootstrap
the State’s
burden
the essential elements of the
establishing
offense
doubt. Ulster
charged beyond
County
reasonable
Court v.
Allen,-U.
S.-,-99
2213,
S. Ct.
L. Ed.
777
2d
Montana,-U.
Sandstrom v.
see
(1979);
S.-,-,
L.
DiRienzo,
Ct.
Ed.
2450,
2d
(1979);
53 N. J. at
supra,
Also,
373-382.
re
397 U. S.
Winship,
364,
90 S. Ct.
L.
1072-1073, 25
Ed.
2d
*6
Turner v. United
(1970);
States,
U.
417-424,
The court below ruled the evidence on insufficient of State v. strength Sapp, supra. The Division Appellate the evidence, believed in viewed a most light favorable State, disclosed only that the defendant was present living when apartment narcotics were found in a bedroom closet in the a pocket of dress belonging to some person unknown and additional were narcotics found in the possession of another person, who was also present. 157 N. J. 114. In Super, at its view there were no other relevant circumstances to suggest even defendant knew drugs were there or could control them. Id. at 116. The court concluded that “mere nothing beyond defendant’s or presence residence” a supported of constructive finding possession. Id. at 115.
In State v. Sapp, we supra, endorsed general proposi- tion, stated in the opinion dissenting Appellate Division, that: * * * persons premises Where defendant is one several found on drugs discovered, where illicit are not be inferred he presence drugs
knew had or control of the unless there are tending per- other circumstances statements of the defendant mit an such inference to be drawn. Super, 461], [ 144 N. J. at In this case Division Appellate to follow attempted differ, however, We with Sapp. its conclusion that the here, total circumstances depicted by proofs conjunction with defendant’s on the presence premises, insufficient to allow the to draw relevant inferences and to determine beyond a reasonable doubt defendant’s and control knowledge of the narcotics for its verdicts. In as basis so it has ruling, become clear to us that further refinеment the application with the doctrine dealt in State Sapp required. in this judicial review
If
mandate for appropriate
Virginia, supra
Jackson v.
g.,
kind of case (e.
objective
a meticulous and
satisfied,
Reyes,
is to be
supra)
Our canvass
imperative.
of the evidence is
analysis
was not
that defendant
discloses,
record
without question,
narcotics
the time when
merely
premises
present
evidential circumstances lend
were found. There were other
character of defendant’s
distinctive color to the
ing
lived
It
stress that defendant
at the
important
scene.
officers
he who allowed the
into
in the
It was
apartment.
he
and,
admission,
own
resided there.
apartment,
Division,
noted that
course,
The Appellate
where
were found
from
“resided in
narcotics
premises
*7
157 N. J. Super.
narcotics were
distributed.”
being
which
it
However,
Sapp,
apparently
at 114.
probably
by
influenced
But,
weight.
little evidential
residency
or
occupancy
gave
unrelated
house with several
three-story
Sapp
large
shared
knowledge
inference of
which could weaken the
factors
people,
otherwise drawable from
over household contents
control
n thefact of occupancy.
indication,
In
was
contrast, there
no
conditions. The
under
here,
that defendant
lived
similar
if
was not established at trial.2
any,
number of occupants,
in such
an
others
suggest
occupancy by
There is nothing
sufficient to dilute
numbers
circumstances
evidence,
his
In
context of
own residence.
control over
draw the inference
readily
as
one can
presented,
have
and control
knowledge
of such
would
occupant
premises
its
contents.
addition,
was
it
noted
Appellate Division that
Id.
were concealed.
the narcotics
be
Ordinarily
might
infer
knowledge
presence
difficult to
a hidden item
aby
particular occupant where more
personalty
than one
lives on
premises.
Appellate Division, however,
person
pretrial
indication
was some
made
2There
in
course of the
sever,
during trial,
but not
motion to
otherwise revealed
that defend
apartment
in the
ant
lived
with
wife.
595
made
much of the circumstance
the hiding place
too
was a
of a
in a bedroom
pocket
places
dress
closet. The
where
concealed are as limitless
human
contraband
be
evidential
must be ac
cunning. Considerable
significance
corded the fact that
item in
was heroin. The
question
nature of the
fact
drug servesi to overcome the
its
secreted,
rather
than
view. It
plain
likely
that a
which would
risks
drug,
grave
create
incriminatory
anyone found
its
would be hidden.
presence,
Since
or use of
heroin
a substantial
engenders
penal
threat,
it is
that heroin could
extremely unlikely
up
turn
residence
See e.
Com
person’s
without his awareness.
g.,
490,
monwealth
370
N.
Aguiar,
v.
Mass.
350
E. 2d 436
Gilman,
207,
Jud.
(Sup.
Ct.
v.
110
I.
291
1976);
R.
Reisman,
A. 2d 425
v.
29 N.
(Sup.
1972); People
Ct.
Y.
278,
2d
327 N. Y.
N.
396
342,
S. 2d
277
2d
(Ct. App.
E.
cert.
1971),
1041,
den. 405
S.
92
L.
1315,
U.
S. Ct.
31
Ed.
Nettles,
582
(1972);
306,
2d
23 Ill. 2d
178
E.
Peoplе
N.
361
2d
Ct.
cert.
369
1961),
853,
den.
U. S.
82 S. Ct.
(Sup.
939,
Robertson,
The inference of knowledge control of the concealed heroin is further strengthened by the presence of other *8 hereoin-related the apartment. This was true in materials.in as Sapp well, where, addition, in there were present known users, narcotics as well as some on-going narcotics activity. In case, glassine envelopes and rubber bands, items used in the packaging and of distribution heroin, were found in Brown’s It apartment. entirely reasonable to infer that occupant could apartment ignorant be of these their items and use special in heroin traffic. Moreover, unlike where there were Sapp many unrelated persons living in a house large multi-story and numerous people present at time, same here there was little to dissociate or insulate
596
found in
living quarters.
from the contraband
his
foist upon
It
and human
indeed
logic
experience,
would defy
one, likely
naivete, to believe that
the courts an unwarranted
his own
in
heroin paraphernalia
aware of
immediate whereabouts
would be oblivious to
apartment,
nature.
of its true
heroin itself and ignorant
inheres
circumstance
in
inculpatory
Another important
bedroom,
in
an area usually
found
a
fact that the
were
drugs
were found
Sapp,
drugs
to a resident.
accessible
only
room,
in that
a
room.
bed
Sapp kept
in
dining
Although
of the
in view
likely
room was
access to the
general
dining
These
unrelated
in the premises.
number of
persons living
by
weaken
of control
factors would tend to
the inference
however, there was no evidence
case,
defendant.
In this
detract from the natural
inference that
the narcotics were
An inference of
in areas
defendant.
generally by
controlled
commonly
in
and control
found
rooms
knowledge
personalty
in our
lived
or used
an
occupant
well-grounded
as factfinder
every day
and is available to
experience
White,
80,
v.
2d
See,
criminal
e.
71 Cal.
g., People
case.
v.
Mills
1969);
75 Cal.
450 P.
Ct.
Rptr. 208,
(Sup.
2d
State,
1975);
N. E.
App.
Ind.
2d
(Ct.
App.
State,
1974);
W.
Cri. App.
2d 314
Villegas
(Tex.
Flowers,
E. 2d 820
(Ct.
183 S.
App.
12 N. C.
Sherwood,
160,
597 heroin with the connection and had some person Jester, N. J. 68 v. State in the apartment. paraphernalia Cf. drawn inference can be Hеnce, fair 87, 90-91 (1975). apartment. took defendant’s place that narcotics traffic circumstances, sup This, surrounding as well as all of the inwas possession ports only the conclusion not intent dis with the but that his heroin possession tribute it. by influenced Division was also Appellate dress where the of the ownership
absence of as to proof dress, and of the of heroin found. Ownership packets however, not be a heroin, would presumably ownership possession factor dispositive tending disprove Crim established. heroin, sufficiently otherwise where dominion, inal intentional control “[possession signifies for the item during to affect care ability physically Davis, N. ac time”, 69, v. J. 82 span of State 68 (1975), Reed, 34 State v. character, of its companied by knowledge 506, N. 554, N. v. J. Reyes, Super. J. 557 State 98 (1961); State 512 cert. N. J. see den. 51 582 Div.), (1968); (App. Lobato, State v. 137, 7 N. J. 148 also Humphreys, (1951); 406, 54 N. J. 413-414 can be con possession Such (1969). or manual control structive rather than actual. Physical as is an in item is not there proscribed required long over circumstances tention exercise control it manifested so where it infer that to do capacity is reasonable to N. 536 Div. 530, exists. State v. J. Rajnai, Super. 132 (App. 49, State v. N. J. 57 1975); Bozeyowski, Super. 77 (App. S. L. 851, 1916, Div. cert. 374 U. S. 83 Ct. 10 1962), den. Brown, N. Ed. 2d 1071 J. Super. 67 (1963); N. 455 State v. J. Campisi, Super. Div. 42 (App. 1961); N. J. Div. on other 513 rev’d (App. 1956), grounds Moreover, shared sev can be jointly (1957). can eral More than one individual be persons. possessed an same equal responsibility. item the time with criminal Allen, at-, Ulster Court v. U. S. supra,- County 2213; McMenamin, J. Ct. N. Super. *10 Puckett, Div. State v. (App. Rajnai, State v. 1975); supra; N. 67 J. 365, 376 N. Super. Div. aff’d 34 J. (App. I960), 574 (1961). Ownership conjunction with possession crime; a required element of the can possessory one control without knowingly it he something owning guilty of unlawful Hence, the heroin possession. ownership another by would not incon totally become relevant unless sistent and with incompatible it, in sense that the in another ownership would exclude or displace defendant’s to control See capacity drugs. McMenamin, v. State N. v. Riley, 69 J. 217 State (1976); Thomas, supra; State v. N. J. 331 Div. Super. (App. case, o. b. 57 N. 1969), aff’d J. 143 In this there (1970). no evidential control knowing that defendant’s suggestion over the heroin because it was blocked or ineffective have to belоnged someone else. in focusing upon court perseveration appellate led to absence of relevant evidence potentially seemingly
an incorrect
in terms of their
assessment of the State’s proofs
to
ex
sufficiency
the convictions.
we
support
Previously,
Donohue,
pressly
rejected the formulation
in State
set forth
N.
381,
J.
all
in a criminal case
(1949)
circumstances not
concur
a defendant’s
only must
to indicate
guilt but must also
other rational
be inconsistent with any
conclusion and must exclude
other
“every
hypothesis except
that of
N.
guilt.”
413,
J.
Mayberry,
436-437
cert.
393 U.
L.
(1968),
1043,
673,
den.
S.
89 S. Ct.
Ed. 2d
—-
Accord,
593 (1969).
Jackson v.
U. S.
Virginia,
at
supra,
-,
States,
2781;
S. Ct.
Holland v. United
348 U.
121, 139-140,
This of factual points case has many *11 defendant, of are residence or occupancy of the Some these in close proximity of the the the narcotics premises, of narcotics, incriminatory potential of defendant to oc- heroin, the contemporaneous namely, drugs, been may activities. We have of other drug-related currence result in because reach a different impelled 8app clear, in that It also the shared ease. quality occupancy however, we appropriate weight that did give from of the be drawn all availability inferences to draw those jury’s circumstances right surrоunding in totality concluding consider them in their inferences and to To reasonable doubt. that beyond defendant was guilty extent, be followed for should not disapproved and Sapp future. guidance
II The Appellate concluded, Division without issue, raised the having instructions jury constituted error. 157 N. J. plain Super, at 116-117. court seized two upon specific portions At one charge. point the had judge instructed: premises you dominion, If it’s on over which control and exercise
you possession my have constructive what’s on Books book it. shelf, my go I don’t have them hands but I can and take the book, possession it, I it’s mine. have would be an illustration. premises you dominion, On or over which exercise control and one may possession. be said to have constructive Later the stated: judge may possession person. One actual have on one’s One have con- possession premises you structive if it’s on the over which exercise you you go want, dominion and control and can if to it take it
your possession. hand. That would be constructive The Appellate Division have jury “may decided ap- plied this instruction literally, defend- concluding that since ant lived in this apartment he all constructively possessed that was in it.” Id. at 117.
It is clear from a of the trial instructions reading court’s in their that all entirety of the essential elements of the crime of State v. explained to the jury. Buller, Wilbely, 63 N. J. see, (1973); N. J. 560, 595 A reasonable (1958). would have jury understood that State required рrove knowledge and control as essential elements of constructive possession. “Reversible error will not be found where the charge, considered as a whole the law adequately conveys and would * * not confuse or mislead the Latta v. Caulfield, DiRienzo, J. 128, 79 N. (1979); supra, see. N. J. at 379. *12 correctly the trial defined constructive
Initially judge as possession possession property, though physically in which the not on one’s
person property is so located that he’s aware of the of the it, go get is able to exercise intentional control over to it it obtain it. noted, Then the trial “If two or more share judge persons actual then possession, constructive is to possession said 'is, knowingly be that if share control over joint, they the. Also, [Emphasis artiсle”. added]. prove heroin; The State must indeed the substance seized was two possessed control; the defendant knew that he or had it under his
three, possessed it; four, the defendant knew that he * * * possess [emphasis intended to added]. remarked; Later the judge * * * intent, possession requires knowledge, In addition to is
knowledge by pos- the defendant of the character of that he which possible possess something knowing it, sessed. It to without but possession possession meaning such is not of within the this law. The instructions explicit and control concerning knowledge of requirements constructive in the context of the entire charge sufficient overcome appear any possible confusion.
Ill One other raised on by issue but nоt appeal considered Appellate Division relates to constitutional validity the search warrant issued in issue, this case. That having been treated for Appellate Division, was not a basis our this certification of case. It is appropriate, therefore, be appeal remanded to the Division for Appellate issue. disposition We do not retain jurisdiction. Division Accordingly, judgment Appellate reversed and the case remanded. ashman,
P J., I dissenting. respectfully dissent. Although I that resolution here concede issue is most presented task, difficult view the evidence of constructive my posses- sion adduced below insufficient to send the question guilt jury. majority’s holding an unwarranted from the contrary reprеsents departure standards which we recently espoused Sapp, J. below, N. 476 (1976), rev’g dissenting opinion N. J. Super. Div. I therefore 1975). would (App. reverse defendant’s convictions and for of- entry remand judgments acquittal.
I (cid:127) to case was-found he guilty- Defendant of possession of heroin with intent and possession at person distribute. found his Since no narcotics arrest, upon time of must whether based we determine have the evidence reasonable could juror adduced below a inwas beyond a reasonable doubt that defendant concluded must is, we heroin. “constructive possession” That establish decide whether there was sufficient evidence over defendant had dominion both knowledge Davis, See, N. J. illicit State g., substance. e. Reed, N. J. 557 (1961). (1975); every each and is, course, It to enumerate impossible finding a case, upon in a bear may, which given consideration defendant Whether possession. constructive particular upon located knew or control over narcotics exercised depend upon necessarily are determinations which person in the present circumstances of the facts and totality — likely will which those Certain case. factors specific —(cid:127) however, be can, in a of situations number appear large forth. set in which relationship premises
Defendant’s will his knowledge narcotics are found bear obviously upon A permanent their and his dominion over them. existence exer- assumed to may easily resident of more be dwelling a casual may over than cise control such substances illegal more and dominion visitor. Similarly, knowledge of many to a sole than one readily occupant be attributed relationship dwellings, residents. multi-resident relevant. between the also occupants also view will of the illicit material plain Presence n the proscribed bear Where culpability. upon unconcealed, one can infer that generally narcotics are Dominion, however, may knew of their existence. view means. Plain be other still have to demonstrated by arrest, for time of combined with sole *14 example, would create a case for strong constructive pos Conversely, session. mere presence in the household with numerous would, other persons without more, be insufficient. See State v. Sapp, supra. cases the many critical factor will be defendant’s the to
relationship particular within place where dwelling the narcotics are located. If they are found in an area peculiarly within defendant’s control, such as his among effects, a personal strong inference of arises. possession it is not Although the area necessary be under defend- ant’s exclusive domain, the strength will presumption obviously with vary the location’s to others. accessability Conversely, will be more culpability difficult to establish where the narcotics are in an by found area controlled someone other than the defendant.1
Other considerations upon the issue of constructive bearing possession include: narcotic, the nature of the its traffic (1) use; (2) the in areas presence narcotics paraphernalia indicating defendant’s thereof or dominion there- knowledge over; (3) consistent of known narcotics users on the premises; found; (4) the of the quantity drug (5) defendant’s proximity at the time of search or drugs arrest; and At (6) statements or actions. incriminating bottom, the must judge by evaluate evidence looking the totality of circumstances in the light practical experience. majority “ownership 1The [drug] by states that of the another totally would become incompati relevant unless inconsistent **
ble with the defendant’s of it See ante at 598. Its regard simply Although conclusion in this is ownership erroneous. drug clearly necessary controlling is not a or factor in a con possession case, just ownership structive it is as obvious that an person many negate other will in cases inferences of control. Thus ownership may ais relevant which factor assess even where ownership totally possibility not such as excludes the of de fendant’s control.
II ease, clear to the of this facts Turning suffered from substantial weaknesses. many State’s case The not demonstrate that defendant did prosecution show sole resident of the apartment attempt there who have other relationship any occupаnts resided. no testimony linking State provided were found. bedroom where narcotics particular they which It even dress suggest ownership failed to *15 Eurther, the to demon- were hidden. prosecution neglected found in areas that the narcotics were paraphernalia strate he was sure over defendant had dominion where which the failed address Wallace Finally, to know of them. he was although to the relationship apartment, Young’s arrest, and in the time of the the at present dwelling nature the white powder never of established inexplicably particularly found These deficiencies are upon person. avoided, have at least troublesome because could been they in and thorough preparation more part, investigation part police prosecution. weaknesses,
In of these I cannot accept light glaring for a that was sufficient evidence conclusion there a reasonable doubt beyond defendant conclude with intent to distribute. possession guilty upon The series contrary based majority’s finding heavy which burden clearly satisfy inferences cannot matters. in criminal required prosecution from Sapp this case majority’s distinguish The attempt fact, In the two cases comparison unconvincing. the prosecution a close neither case did similarity. reveals In was tenanted solely by demonstrate that the dwelling be cases, individuals known to involved defendant. both noted about the рremises.2 in trade were the narcotics users in 2It should noted the three known involved also be complex only apartment de to enter case seen apartment specifically. fendant’s were, Narcotics as the paraphernalia majority acknowledges, Moreover, found in each in instances' premises. both other individuals within the located dwelling time of arrest were found to have narcotic substances their upon Sapp as heroin in was involved well persons.3 Einally, here. Sapp
The
between
differences
this ease and
are also
There,
instructive.
in
the narcotics were found
the very
room in which
were,
the defendant
slept. Moreover,
they
at least in part, open to
viеw at a
plain
when
time
was in
Here,
the room.
the heroin was hidden in a dress of
in
unknown
a bedroom to which
ownership
defendant’s con-
nection was never
established.4
narcotics paraphernalia
Sapp
person
attempting
glassine
3In
one
was found
to swallow 21
envelopes of heroin while the search of
individual
revealed
another
Further,
a methadone
biscuit
his coat.
it should be
noted
powder
pants
Young’s
pocket
the white
found in
this case Wallace
proven
Thus,
majority again
was never
relies
to be a narcotic.
upon
entirely
assumption.
an
unsubstantiated
jurisdictions
acquittal
4Cases
other
have held that
must be
place
ordered where defendant's connection to the
nar
where the
See,
g.,
State,
cotics
located cannot
are
be established.
e.
Smith v.
*16
1973)
(Fla. Sup.
(husband acquitted
the that case quality conclusion this in from that extant differed of the occupancy premises” This is somewhat Sapp. part on the finding majority’s bearing below no evidence was adduced that puzzling, given the Brown the in upon of shared occupancy” “quality the. no As supra, prosecution presented residence. detailed the in who lived number of individuals proof relating the even attempt Nor the in did apartment question. any defendant’s other relationship persons demonstrate Thus, majority upheld has who have there resided.5 of shared convictions because the “quality” defendant’s of cannot be “quality” fact that occupancy despite effect, majority below. In from the ascertained record to show that his bears the burden has ruled that defendant Sapp. that similar to involved was living arrangement that established long principle it has ignored so doing, a reasonable guilt beyond must prove the State (Super. Hannan, Super. 540, 229 Pa. A. 2d 503 monwealth acquitted 1974) (husband narcotics were found master where Ct. purse dresser). in wife’s bedroom any Ownership neces- dress is thus relevant not because ownership showing drug, supra, sity see n. but rather for likely aware, proposition and in that is more for one the obvious possessions control, than in cloth- located in one’s substances ing of others. present person, at time another be noted that should 5It separately arrest, for the same crimes that indicted was person’s apparently apartment other name. to- the lease along This, least one non-masculine item of with — — likely is, clothing indicates defendant was dress *17 sole tenant. riot to Ms freedom from is required prove Defendant doubt. In re 397 U. S. S. Ct. Winship, 358, 1068, See guilt. Ed. L. 368 (1970). 2d in of
Perhaps absurdity recognition to attempting this case from Sapp, distinguish majority proceeds to overrule that in In the decision words of the part. majority, the extent Sapp is to “disapproved” give appropriate weight availability did not of the inferences surrounding drawn from all of the be circumstances and the jury’s right those to draw inferences to consider them in their totality concluding guilty beyond in defendant was a reasonable doubt. [Ante 599] majority’s holding regard The is unsound in at Eirst, least two it is unclear what respects. Sapp portion fact majority Is the overruling. result of that Or, rather, ease “disapproved”? its flaw the manner in which that result was reached? If the latter, which part, of its is no to be reasoning longer followed? The lack of in the clarity majority’s will holding merely serve to confuse in their judges trial effort the law apply in this area. Second, more importantly, errs majority at all from the approach which departing we endorsed in view, In my Sapp. defendant’s presence with other persons in which dwelling in a narcotics are found cannot without sufficient more constitute evidence to support conviction for of those narcotics. Sapp, supra. contrary conclusion majority’s elevatеs the fear of judicial “naivete” above the presumption innocence as well proof burden the State in required criminal prosecutions. what appears It thus reverse I had thought was deeply — constitutional engrained principle “that it is far worse to an convict innocent man than to let a man guilty go free.” In re 397 U. S. Winship, 358, 372, 90 Ct. 1068, 1077, 25 Ed. L. 2d (1970) (Harlan, J., concurring). See Randall, Speiser U. S. S. Ct. 525-526, *18 .608
1341-1342, generally L. See (1958). Ed. 2d of Justice: Burdens Underwood, Thumb on the Scales “The Yale L. Cases,” 86 J. 1299 (1977). of Persuasion in Criminal that well- is a difficult case which In my view, this govern. axiom should established reasons, judgment Por the I would affirm the foregoing for of judgments Division remand entry Appellate of acquittal. dissenting joins opinion. Clifford
Justice Hughes and remandment —Chief Justice For reversal and Mountain, Sullivan, Soheeibee Handler —5. Justices P ashman For Clifford —2. affirmance—Justices