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56.1 Possession: Miscellaneous Issues And Defenses

    56.1.1 Possession: Right To Instruction Upon Request
    56.1.2 Possession: Factors To Consider
    56.1.3 Joint Possession: Factors To Consider
    56.1.4 Possession: Intoxication As Defense To Knowledge Element
    56.1.5 Possession: Juror Unanimity
    56.1.6 Possession: Inability To Escape With The Contraband Does Not Negate Possession
    56.1.7 Possession: Duty To Define "Right To Control"
    56.1.8 Possession: Definition Of Control
    56.1.9 Constructive Possession: Use Of Phrase “Indirect Possession” To Avoid Juror Confusion
    56.1.10 Possession: Defendant Permitted To Comment On Lack Of Fingerprint Evidence
    56.1.11 Possession: Admission Of Evidence Possessed By Defendant -- Requirement Of Nexus Between The Item Possessed And Charged Offense
    56.1.12 Possession: Federal Circuit Model Instructions And Notes

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PRACTICE NOTE: See U.S. v. Pennington (5th Cir. 1994) 20 F3d 593, 600 [trial court erred in refusing to submit proposed instruction on constructive possession].

See generally, FORECITE National™ 305.1.7 [Actual/Constructive Possession].

See generally, FORECITE National™ 56.1.12 [Possession: Federal Circuit Model Instructions And Notes].

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RATIONALE: In some situations it may be helpful to instruct the jury on some of the factors to consider in deciding whether there was constructive possession.

POINTS AND AUTHORITIES: State v. Olson (MN 1992) 482 NW2d 212, 216, suggested a balanced instruction including a number of relevant factors instead of the permissive inference instruction which focused upon a single factor and was held to be reversible error. (See also Pugh v. State (MD 1995) 654 A2d 888, 905.) However, the Olson court opined that such an instruction need not be given, and that it might actually be wiser to give no instruction at all on the specific factors.  (State v. Olson (MN 1992) 482 NW2d 212, 216; see also Folk v. State (MD 1971) 275 A2d 184, 187-89 [jury should consider all circumstances but especially "proximity," "proprietary interests" and mutual use"].) 

    See also FORECITE National™ 56.1.3 [Joint Possession: Factors To Consider].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 3.5; 4.1].

See generally, FORECITE National™ 305.1.7 [Actual/Constructive Possession].

See generally, FORECITE National™ 56.1.12 [Possession: Federal Circuit Model Instructions And Notes].

    In determining whether or not the State has proved beyond a reasonable doubt that the defendant was in knowing possession of [name of object] you may consider such factors as whether the defendant was the owner or lessee of the premises in which the [object] was found; whether the defendant had exclusive control over the area within the premises where the [object] was found; the defendant’s proximity to the [object] at the time of the arrest; the number of other people, if any, present at the time the [object] was found; the defendant’s relationship or association with any other people present at the time the [object] was found; and the defendant’s conduct at the time the [object] was found.

[State v. Olson (MN 1992) 482 NW2d 212, 216.]

    Consider all the circumstances in deciding whether the prosecution has proven indirect possession of the [property] [substance]. The circumstances to consider include, but are not limited to, the distance between the defendant and the substance, whether the defendant had an ownership or possessory interest in the place [automobile], where the substance was found, and any indications that the defendant was participating with others in the mutual use and enjoyment of the [property] [substance].

[See State v. Olson (MN 1992) 482 NW2d 212, 216; see also Folk v. State (MD 1971) 275 A2d 184, 187-89; see also MARYLAND CRIMINAL PATTERN JURY INSTRUCTIONS, MPJI-Cr 4:24 [Narcotics And Controlled Dangerous Substances-Possession] ¶ 2, sent. 5&6 (Micpel, 1999).]

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RATIONALE: In deciding whether possession was established when more than one person had access it may be appropriate to suggest factors for the jury to consider.

POINTS AND AUTHORITIES: A corollary to the principle that access alone does not establish possession is that equal access by more than one person does not alone establish that either has possession. (See Folk v. State (MD 1971) 275 A2d 184, 187-89.)

    See also FORECITE National™ 56.2.4 [Possession: Access Alone Is Insufficient].

    See also FORECITE National™ 56.1.2 [Possession: Factors To Consider].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 3.5; 4.1].

See also generally, FORECITE National™ 305.1.7 [Actual/Constructive Possession].

See generally, FORECITE National™ 56.1.12 [Possession: Federal Circuit Model Instructions And Notes].

    When a charge is based on joint possession, consider all the circumstances, including but not limited to, the following in determining whether the prosecution has proved possession:

(1)    the proximity of the defendant to the object;

(2)    whether the object was within the view of the defendant or otherwise within his knowledge;

(3)    whether the defendant had an ownership or possessory right in the place where the object was found; and

(4)    whether the defendant was participating with others in the mutual use and enjoyment of the object.

[Cf. Aaronson, MARYLAND CRIMINAL JURY INSTRUCTIONS AND COMMENTARY 4.76 [Narcotics-Possession (Actual And Constructive)] ¶ 7 (Lexis, 2nd ed. 1988).]

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PRACTICE NOTE: Possession offenses require knowledge of the presence of the object and of its nature as contraband. (See e.g., FORECITE National™ 88.4.3.3 [Drug Possession: Intoxication Or Mental Impairment As Defense To Knowledge Element]; FORECITE National™ 106.4.3 [Possession Of Weapons: Lack Of Knowledge As Defense].)

    Unless expressly prohibited by statute, intoxication and/or mental defect may be relied upon by the defense to negate the knowledge element of a possession offense. (See FORECITE National™ 256.6.1.15 [Intoxication Or Mental Impairment: Negation Of Knowledge Element].)

See generally, FORECITE National™ 305.1.7 [Actual/Constructive Possession].

See generally, FORECITE National™ 56.1.12 [Possession: Federal Circuit Model Instructions And Notes].

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    See FORECITE National™ 273.10.11.4 [Jury Unanimity: Firearm/Weapon Possession Offenses].

See generally, FORECITE National™ 305.1.7 [Actual/Constructive Possession].

See generally, FORECITE National™ 56.1.12 [Possession: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: The fact that the police officers who were observing a drug sale had no intention of allowing the defendants to get away with the contraband does not bear on the issue of the defendant's possession. (People v. Austin (CA 1994) 23 CA4th 1596, 1609, fn 2 [28 CR2d 885]; see also People v. Wesley (CA 1990) 224 CA3d 1130, 1145-46 [274 CR 326].)

See generally, FORECITE National™ 305.1.7 [Actual/Constructive Possession].

See generally, FORECITE National™ 56.1.12 [Possession: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: Whether or not the defendant has a "right to control" within the meaning of constructive possession may depend on technical legal rules. (E.g., when landlord/tenant rules may apply.) In such cases, the jury must be instructed on the technical legal meaning of right to control. (See generally, FORECITE National™ 3.2.6 [Duty To Define Terms with Specialized/Technical Meaning].)

RESEARCH NOTES:

See generally, FORECITE National™ 305.1.7 [Actual/Constructive Possession].

See generally, FORECITE National™ 56.1.12 [Possession: Federal Circuit Model Instructions And Notes].

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RATIONALE: When the possession instructions use the term "control" further definition may be appropriate.

POINTS AND AUTHORITIES: The above definition of control in the sample instruction below was set forth in State v. Montoya (NM 1979) 594 P2d 1190, 1192. This comports with the definition utilized in other contexts e.g., the "power or authority to check or restrain." (See State v. Hogue (HI 1971) 486 P2d 403, 408 (Levinson, J. dissent.) [definition of "ownership or control" for purposes of prohibition was "the power of distribution to others"]; see also Gaines v. State (IN 1974) 316 NE2d 842, 844; but see FORECITE National™ 56.2.3 [Possession: Requirement Of Act Or Omission Resulting In The Defendant's Assertion Of Dominion And Control Over The Object].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 3.5; 4.1].

See generally, FORECITE National™ 305.1.7 [Actual/Constructive Possession].

See generally, FORECITE National™ 56.1.12 [Possession: Federal Circuit Model Instructions And Notes].

    For the purposes of this instruction the term "control" means the power to produce or dispose of the object in question.

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PRACTICE NOTE: It has been suggested that the term "indirect possession" rather than "constructive possession" would be more understandable to lay persons: "The Committee used the term indirect possession instead of constructive possession because it believes that indirect possession has the same meaning as constructive possession and the term constructive possession may be confusing to a jury. [Citation.]" (MARYLAND CRIMINAL PATTERN JURY INSTRUCTIONS, MPJI-Cr 4:24, comment [Narcotics And Controlled Dangerous Substances-Possession] (Micpel, 1999).)

See generally, FORECITE National™ 305.1.7 [Actual/Constructive Possession].

See generally, FORECITE National™ 56.1.12 [Possession: Federal Circuit Model Instructions And Notes].

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    56.1.10    Possession: Defendant Permitted To Comment On Lack Of Fingerprint Evidence

PRACTICE NOTE: In U.S. v. Thompson (9th Cir. 1994) 37 F3d 450, 454, the court held that a defendant is entitled to argue that the government's failure to present certain types of evidence (e.g., fingerprints) weakens its case. For example, when the defense is lack of knowledge or possession, the lack of fingerprint evidence is a relevant fact which may be elicited by defense counsel during direct or cross examination of witnesses, and incorporated into counsel's closing argument. (Ibid.)

    While the right to an instruction on this point was not at issue in Thompson, counsel may wish to consider offering a pinpoint instruction when the lack of fingerprint evidence relates to a theory of the defense. (See generally FORECITE National™ 3.3.2 [Duty To Give Requested Defense Theory Or Pinpoint Defense Instructions].)

    See also FORECITE National™ 88.4.3.10 [Drug Possession: Defendant Permitted To Comment On Lack Of Fingerprint Evidence As Defense Theory].

CAVEAT:  Some cases may require strategic evaluation of whether or not to argue lack of fingerprint evidence. For example, in U.S. v. Murillo (9th Cir. 2001) 255 F3d 1169 the defendant "designated a fingerprint expert before trial and argued in his defense at trial that no fingerprints were found on the drug packages." (Murillo, 255 F3d at 1177.) In response, the court permitted expert testimony about the operation and structure of drug trafficking organizations, even though it was a non-complex, non-conspiracy case. (See also U.S. v. McGowan (9th Cir. 2001) 274 F3d 1251, 1254-55.)  It has also been held that expert testimony in support of the prosecution regarding the absence of fingerprint evidence may be admitted in rebuttal to evidence that the only identifiable fingerprints did not match the defendant's. (See U.S. v. Burdeau (9th Cir. 1999) 168 F3d 352, 356-57.)

See generally, FORECITE National™ 305.1.7 [Actual/Constructive Possession].

RELATED FEDERAL MODEL INSTRUCTIONS:

See generally, FORECITE National™ 56.1.12 [Possession: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: Even in situations where the defendant’s possession of an item is established, there may still be an admissibility issue if the item is not sufficiently linked to the charged offense. (See e.g., O’Connor v. State (FL 2003) 835 So2d 1226; Dias v. State (FL 2001) 812 So2d 487, 493 [knife found in the defendant’s van three weeks after a stabbing was admissible because it was similar to the victim’s description of the knife used in the incident]; Council v. State (FL 1997) 691 So2d 1192, 1194-96 [admission into evidence of a gun found under the defendant’s mattress during a search three weeks after a robbery; "many similarities" between the witnesses’s description of the gun used by the robber and the gun found under the mattress]; Thornton v. State (FL 2000) 767 So2d 1286, 1288 [gun located in co-defendant’s office was properly admitted to help identify the defendant as a participant in a robbery; witnesses’s description of the gun used in the robbery "matched the appearance" of the gun admitted in evidence].)

    On the other hand, "[e]vidence of possession of a weapon not used in the crime charged against a defendant leads logically only to an inference that defendant is the kind of person who surrounds himself with deadly weapons -- a fact of no relevant consequence to determination of the guilt or innocence of the defendant." (People v. Henderson (CA 1976) 58 CA3d 349, 360; see also People v. Riser (CA 1956) 47 C2d 566, 577 [305 P2d 1]; People v. Vaiza (CA 1966) 244 CA2d 121, 125 [52 CR 733]; cf. People v. DeVaney (CA 1973) 33 CA3d 630, 635 [109 CR 276] [admissibility of nonrelevant tools of a crime found in defendant's possession waived by defendant’s failure to object].)

    Where the evidence at trial does not link a weapon seized to the crime charged, the weapon should be inadmissible. ( O’Connor v. State (FL 2003) 835 So2d 1226, 1231; Rigdon v. State (FL 1993) 621 So2d 475, 478 [trial court erred in admitting into evidence a weapon found under the defendant’s bed; "exhibit did not tend to prove or disprove a material fact as it had no connection whatsoever to the charged offense"]; Huhn v. State (FL 1987) 511 So2d 583, 589 [challenged admissibility of gun removed from glove compartment of a car accused was driving five months after crimes; nothing in the evidence "connected the particular gun to the crimes for which [the defendant] was on trial"].) In Huhn, the court concluded that the weapon found was not relevant to the case and therefore inadmissible: "it served the purpose only of conveying to the jury that [the defendant’s] having guns tended to support the testimony that he had a gun when engaged in the charged crimes." (Id.; see also Fugate v. State (FL 1997) 691 So2d 53, 54 [finding trial court committed error in admitting into evidence a handgun owned by the defendant which was found some distance from the crime scene of an aggravated assault, where there was no link to the charged offense]; Sosa v. State (FL 1994) 639 So2d 173, 174 [trial court erred in admitting bullets found in defendant’s vehicle where defendant was charged with firing handgun at victim’s car, since there was no link whatsoever established between the bullets and the defendant’s case].)

    In O’Connor v. State, supra, a detective testified that people committing "drug armed robber[ies]" often wear bulletproof vests. On cross-examination, the detective conceded that during his 11-year career he had encountered only two occasions in which a drug robber wore a bulletproof vest and there was no evidence linking the bulletproof vest found in the defendant’s home to the charged homicide. The O’Connor court concluded that the bullet proof vest and other items of evidence were not relevant to the crime charged and were improperly admitted into evidence; nothing in the evidence indicated that appellant wore the bullet proof vest in the homicide. "The state tried to manufacture relevance with the testimony that people who commit drug armed robberies often wear bullet proof vests. This anecdotal testimony ‘concerning characteristic patterns in a type of criminal activity was inadmissible.’ [Citations.]" (O’Connor, 835 So2d 1226, 1231-32; see also Lawrence v. State (FL 2000) 766 So2d 250, 251; Dean v. State (FL 1997) 690 So2d 720, 723-24; Shelton v. State (FL 1995) 654 So2d 1295, 1296.) "Any marginal relevance in this type of testimony was substantially outweighed by the danger of unfair prejudice. [Citation.] The state may not create relevance by resorting to testimony which is itself inadmissible as proof of guilt." O’Connor, 835 So2d 1226, 1231.)

See generally, FORECITE National™ 305.1.7 [Actual/Constructive Possession].

See generally, FORECITE National™ 56.1.12 [Possession: Federal Circuit Model Instructions And Notes].

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    56.1.12    Possession: Federal Circuit Model Instructions And Notes

See 5th Circuit Pattern Jury Instructions - Criminal 1.31.

See also 6th Circuit Pattern Jury Instructions - Criminal 2.10.

See also 6th Circuit Pattern Jury Instructions - Criminal 2.11.

See also 8th Circuit Model Jury Instructions - Criminal 8.02.

See also 9th Circuit Model Jury Instructions - Criminal 3.18.

See also 11th Circuit Pattern Jury Instructions - Criminal SI 6.

See also Federal Judicial Center, Pattern Criminal Jury Instruction 47B.