SERIES 3300 NON-CALCRIM DEFENSES
F 3306 NOTES
TABLE OF CONTENTS
F 3306 Note 1 Possession—Research Notes
F 3306 Note 2 Possession: Juror Unanimity
F 3306 Note 3 Possession: Duty To Define “Right To Control”
F 3306 Note 4 Possession: Defendant Permitted To Comment On Lack Of Fingerprint Evidence
F 3306 Note 5 Improper To Presume Possession Solely From Fact That Defendant Drove The Vehicle Containing Secreted Drugs
Return to Series 3300 Table of Contents.
F 3306 Note 1 Possession—Research Notes
Annotation, Conviction Of Possession Of Illicit Drugs Found In Premises Of Which Defendant Was In Nonexclusive Possession, 56 ALR3d 948.
Annotation, Conviction Of Possession Of Illicit Drugs Found In Automobile Of Which Defendant Was Not Sole Occupant, 57 ALR3d 1319.
Annotation, Drug Abuse: What Constitutes Illegal Constructive Possession Under 21 USC 841(a)(1), Prohibiting Possession Of A Controlled Substance With Intent To Manufacture, Distribute, Or Dispense The Same, 87 ALR Fed 309.
Annotation, What Constitutes “Constructive” Possession Of Stolen Property To Establish Requisite Element Of Possession Supporting Offense Of Receiving Stolen Property, 30 ALR4th 488.
Annotation, Statutory Presumption Of Possession Of Weapon By Occupants Of Place Or Vehicle Where it Was Found, 87 ALR3d 949.
F 3306 Note 2Possession: Juror Unanimity
Where a possession crime is based upon two or more individual units of contraband reasonably distinguishable by a separation in time and/or space and there is evidence as to each unit from which a reasonable jury could find that it was solely possessed by a person or persons other than the defendant, the jury should be given a unanimity instruction. (See FORECITE F 17.01 n6].)
CALJIC NOTE: See FORECITE F 1.24 n2.
F 3306 Note 3Possession: Duty To Define “Right To Control”
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 PG II(B).) [See Brief Bank # B-623 for additional briefing on this issue.]
CALJIC NOTE: See FORECITE F 1.24 n5.
F 3306 Note 4Possession: Defendant Permitted To Comment On Lack Of Fingerprint Evidence
In U.S. v. Thompson (9th Cir. 1994) 37 F3d 450, 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 FORECITE PG III(A).)
CAVEAT: It has 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.)
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.)
CALJIC NOTE: See FORECITE F 1.24 n6.
F 3306 Note 5Improper To Presume Possession Solely From Fact That Defendant Drove The Vehicle Containing Secreted Drugs
PRACTICE NOTE: An instruction that the jury may infer that the driver of an automobile in which the drugs were secreted knew the drugs were present improperly shifts the burden to the defendant. This is so even though the court cautioned the jury that it was not required to make this inference. There must be some additional facts other than the defendant’s control of the vehicle to support such an inference. (See e.g., U.S. v. Rubio-Villareal (9th Cir. 1992) 967 F2d 294, 299; see also Scruggs v. Commonwealth (VA 1994) 448 SE2d 663, 665 [driver’s mere possession of a gun and large quantity of cash was insufficient to support inference that he possessed drugs found secreted in passenger’s seat].)
