Lewis D. GOLDSMITH, Petitioner-Appellant, v. S.R. WITKOWSKI, Warden; State of South Carolina; Attorney General of South Carolina, Respondents-Appellees, 981 F.2d 697

OPINION SPROUSE, Senior Circuit Judge: Lewis D. Goldsmith appeals from the district court’s dismissal of his 28 U.S.C. § 2254 petition for habeas corpus. In the district court, Goldsmith challenged convictions by a South Carolina state court for possession of narcotics with intent to distribute and conspiracy to distribute narcotics. We hold that the evidence was constitutionally insufficient to support the convictions, and that part of the State’s evidence presented at trial violated Goldsmith’s Sixth Amendment right to confront witnesses. Accordingly, we reverse.

Police in Greenville County, South Carolina, arrested Goldsmith and co-defendants Timmy Cooper and Adele Jordan on drug charges in 1988. Goldsmith was indicted on six counts and was tried separately from his co-defendants; a state court jury found him guilty on all charges.

He received concurrent sentences of four years for possession of marijuana, twenty years and a $20,000 fine for possession of marijuana with intent to distribute, ten years for conspiracy to distribute marijuana, four years for possession of cocaine, twenty years and a $50,000 fine for possession of cocaine with intent to distribute, and ten years for conspiracy to distribute cocaine.

On appeal the South Carolina Supreme Court affirmed the convictions for possession with intent to distribute and conspiracy to distribute marijuana and cocaine, but vacated the two simple possession convictions as lesser included offenses. 301 S.C. 463, 392 S.E.2d 787. Goldsmith’s petition for habeas corpus relief in the district court challenged the remaining four convictions. He contended that, under the standard of Jackson v.

Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979), the evidence presented at trial was insufficient to sustain the convictions, and that the elicitation of hearsay testimony from a police officer violated his Sixth Amendment right to confront witnesses. The district court dismissed his petition, and he appeals. I To assess Goldsmith’s challenge, we review the evidence produced at trial “in the light most favorable to the prosecution.” Jackson, 443 U.S. at 319, 99 S.Ct. at 2789.

The trial evidence consisted of both physical evidence and uncontested testimony from the five police officers who searched the apartment where Goldsmith was arrested. It demonstrated that on July 22, 1988, five narcotics deputies of the Greenville County Sheriff’s Department searched an apartment in Taylors, South Carolina. The officers made the search pursuant to a valid warrant. Two officers approached the apartment building from the front and three from the rear. The former testified that Goldsmith’s co-defendant Timmy Cooper was outside when they arrived.

Upon seeing the police, Cooper ran into the apartment through the front door. The three officers assigned to the rear of the building entered the apartment through the back door after overcoming Cooper’s attempt to bar their entry. The first officer into the apartment testified that as he entered, Goldsmith was sitting at a dining room table. A small child was sitting on a sofa.

The second officer into the apartment testified that as he entered, Goldsmith was standing next to the table and was “looking toward us to see what was going on as I went through the door.” They subsequently arrested Goldsmith, Cooper, and Jordan. A body search pursuant to Goldsmith’s arrest uncovered $200 in his sock. No drugs were found on his person. Both narcotics and drug paraphernalia were seized. From the dining room table, the officers seized a tenth of a gram of cocaine (1.54 grains), a scale, a straw, and rolling papers. Two bags of marijuana were recovered near one of the table legs.

The larger of the two bags was concealed in a shopping bag and contained 310.92 grams of marijuana; the smaller bag contained 113.4 grams. More evidence was found in a closed kitchen cabinet, the freezer, and the master bedroom. Officers seized cocaine wrapped in aluminum foil, a bag containing cocaine, a scale, a revolver, a covered plastic coffee cup containing marijuana seeds, a small bag of marijuana, and a lunch box containing plastic sandwich bags with the corners cut out. Both the cocaine and the marijuana were in Goldsmith’s plain view.

The officers testified that the one-tenth of a gram of cocaine on the dining room table was in Goldsmith’s plain sight, as the search began. One testified that the larger bag of marijuana was in a shopping bag on the floor, but that Goldsmith could not have avoided seeing the smaller bag from where he was standing. At trial, the officers testified that the apartment was not Goldsmith’s residence; they did not identify who owned or rented the apartment. None of the officers could say that at the time they arrived at the apartment building Goldsmith was in the apartment.

One testified, “I presume he was inside, we didn’t see him outside.” Another, when asked who was in the residence when the police arrived, answered, “I can’t say, I mean, when I got there.” A Looking first at the evidence to determine if it is sufficient to uphold Goldsmith’s two convictions for possession with intent to distribute cocaine and marijuana, we view it “in the light most favorable to the prosecution,” and consider whether “any rational trier of fact could have found the essential elements of that crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319, 99 S.Ct. at 2789.

Under South Carolina law, a conviction for the crime of possession with the intent to distribute, of course, requires proof of possession of drugs, and either actual or constructive possession is sufficient. S.C.Code Ann. § 44-53-370(a)(l); State v. Ellis, 263 S.C. 12, 207 S.E.2d 408, 413 (1974). Because Goldsmith did not have actual possession of the drugs in the apartment, proof of his constructive possession was required. A person has constructive possession of drugs if he has knowledge of the presence of the drugs and dominion and control, or the right to exercise dominion and control, over the drugs.

Ellis, 207 S.E.2d at 413; see also State v. Kimbrell, 294 S.C. 51, 362 S.E.2d 630, 631 (1987) (holding that the possession element of the crime of trafficking in cocaine requires proof of power and intent to control). Constructive possession may be established by circumstantial evidence. Ellis, 207 S.E.2d at 413. The South Carolina Supreme Court, in concluding that the convictions for possession with intent to distribute narcotics were sufficiently supported by the evidence, considered Goldsmith’s presence in the apartment and his proximity to the narcotics and drug paraphernalia, which he could plainly see.

Under South Carolina law, a jury may properly infer knowledge from such circumstances. See State v. Foster, 269 S.C. 373, 237 S.E.2d 589, 593 (1977). The state courts in this case, however, did not point to any evidence from which a jury could infer dominion or control. Nor do we find such requisite record evidence of that element of the state offense as would meet the Jackson standard. Essentially, the government only proved Goldsmith’s presence in the apartment and his awareness of the drugs.

Under South Carolina law, the mere presence of a person in an area containing drugs, absent evidence of his dominion and control over them, is insufficient to prove his possession of the drugs. State v. Tabory, 260 S.C. 355, 196 S.E.2d 111, 113 (1973). Again, even presence coupled with knowledge of the drugs is insufficient to sustain a possession conviction; the State must also prove dominion and control. See Kimbrell, 362 S.E.2d at 631.

Even if this were not state law, the due process protections of Jackson, in our view, would require the invalidation of convictions based solely on evidence of mere presence, as was established in this case. Proof of dominion and control, of course, may include evidence that the accused controlled the premises where the drugs were found or that he had a special relationship with the owner or lessor of the premises. See State v.

Brown, 267 S.C. 311, 227 S.E.2d 674, 676 (1976) (reversing possession conviction for insufficient evidence where defendant was a passenger in a car containing eight pounds of marijuana, but where State did not show that defendant had special relation with car’s owner or its driver or that defendant exercised control over the car); cf. State v. Hudson, 277 S.C. 200, 284 S.E.2d 773, 775 (1981) (holding that evidence of heroin, seized from apartment shared by the defendants, was sufficient to show control and possession).

The South Carolina courts have also accepted other proof of dominion and control as sufficient to support a finding of possession. See State v. Ellis, 263 S.C. 12, 207 S.E.2d 408, 413 (1974) (reversing possession conviction where appellant resided in apartment in which heroin sales occurred and was present during sales, but where State did not show that appellant participated in the sales or in any other way exercised control); cf. Kimbrell, 362 S.E.2d at 631 (holding that evidence, which showed accomplice told defendant to watch cocaine while former went outside, was sufficient to support possession conviction).

We have no doubt that such holdings comport with the Jackson standard. In this case, however, the prosecution presented only an evidentiary picture of an accused sitting at a table laden with narcotics and narcotic paraphernalia in an apartment where other drugs and paraphernalia were later discovered. The State did not identify the lessor or the lessee of the apartment. It did not identify the small child who was in the apartment, or the relationship between the child and any of the defendants.

Further, the State failed to establish any connection among Goldsmith and his two co-defendants, or between the co-defendants. At best, the State’s evidence showed Goldsmith’s presence in an unknown person’s apartment and his knowledge of drugs and drug paraphernalia in the apartment. It is true that Goldsmith was alone in the apartment, except for the presence of the small child, at the time of the officers’ entry. No witness was able to say, however, who was in the apartment before the police entered or why Goldsmith was there.

One officer testified that he only “presumed” that Goldsmith was inside before they entered, and another, when asked who was inside before the search began, responded, “I can’t say.” There was no evidence that all the entrances of the apartment building were under observation. Both Cooper and Jordan were close to the building, and Goldsmith may have been waiting for either co-defendant, or both, to return from outside. The record evidence does not indicate whether Goldsmith had been at the apartment on previous occasions or how he came to be there when he was arrested.

Moreover, Goldsmith did not attempt to hide or dispose of the drugs or to evade the police. The trial evidence simply did not demonstrate that Goldsmith was “alone” in a sense that would have allowed the jury to infer that he had the right to exercise dominion and control over the apartment or the contents of the apartment. Because the trial evidence was constitutionally insufficient to support a finding that Goldsmith had dominion and control over the marijuana or the cocaine, we find that there was insufficient evidence to find that he had possession of either drug.

Therefore, we reverse the two convictions for possession with intent to distribute. B Likewise, after viewing the evidence “in the light most favorable to the prosecution,” we find the evidence insufficient to support the conspiracy convictions. Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. Conspiracy is defined under South Carolina law as “a combination between two or more persons for the purpose of accomplishing a criminal or unlawful object or an object neither criminal nor unlawful by criminal or unlawful means.” S.C.Code Ann. § 16-17-410.

In order to convict a person of conspiracy, the State must first show the existence of a conspiracy. State v. Hiott, 276 S.C. 72, 276 S.E.2d 163, 166 (1981). The Supreme Court of South Carolina has held “that a formal express agreement is not necessary to establish the conspiracy, and that it may be shown by circumstantial evidence and the conduct of the parties.” State v. Oliver, 275 S.C. 79, 267 S.E.2d 529, 530 (1980).

After the prosecution establishes the existence of a conspiracy, it need prove only a slight connection between the conspiracy and the defendant to convict him of knowing participation in the conspiracy. State v. Sullivan, 277 S.C. 35, 282 S.E.2d 838, 843 (1981) (quoting United States v. Dunn, 564 F.2d 348, 357 (9th Cir.1977)). The State here, however, presented no evidence, even circumstantial, to show the existence of a conspiracy. Even had there been one, there was no evidence to show Goldsmith’s participation.

It is true, as previously noted, that the jury could have inferred Goldsmith’s knowledge of the drugs. A reasonable juror could have believed Goldsmith was a user waiting to make a purchase, a friend of the owner or lessee of the apartment, or perhaps even an interloper. A conclusion, however, that Goldsmith was part of a conspiracy to distribute marijuana or cocaine, requires bridging an evidentiary gap with rank speculation.

II Goldsmith also asserted in his petition that his Sixth Amendment right to confront witnesses was violated when the State introduced hearsay evidence, and that the trial court erred in denying defendant’s motion for a mistrial. Goldsmith complains that the entire trial was tainted when the state prosecutor asked a deputy, “[W]hy did y’all serve the search warrant that day?” and the officer responded, “We had information that Mr. Goldsmith and Mr.

Cooper would be present at the time.” Although the trial court sustained defense counsel’s objection and instructed the jury to disregard the answer, Goldsmith contends that the officer’s statement “left an indelible impression fixed in the jurors’ minds that this could not be a case of mere presence because the police had additional evidence tying Goldsmith to the apartment, to Cooper, and to an ongoing drug conspiracy.” We agree with the South Carolina Supreme Court that the blatant attempt by the prosecutor to strengthen an obviously weak case was an egregious constitutional error.

We disagree, however, with its conclusion that the error was harmless. The presumption of cure by a court’s instruction is overcome when there is an “ ‘overwhelming probability’ that the jury will be unable to follow the court’s instructions, and a strong likelihood that the effect of the evidence would be ‘devastating’ to the defendant.” Greer v. Miller, 483 U.S. 756, 766 n. 8, 107 S.Ct. 3102, 3109 n. 8, 97 L.Ed.2d 618 (1987) (quoting Richardson v. Marsh, 481 U.S. 200, 208, 107 S.Ct. 1702, 1707, 95 L.Ed.2d 176 (1987); Bruton v. United States, 391 U.S. 123, 136, 88 S.Ct. 1620, 1628, 20 L.Ed.2d 476 (1968)).

Here the officer’s answer was devastating to the defense. By telling the jury that the police knew Goldsmith would be at the apartment at a specific time, it supplied a missing link in the State’s case. The jurors could then believe that Goldsmith was personally known to the police and was known to be connected with the apartment and the drug operation inside. The statement linked Goldsmith to Cooper, and intimated that the two somehow operated out of the apartment together.

There was no longer the possibility that Goldsmith was an innocent visitor or a user waiting to make a purchase; he was the identified target of a police investigation and a confederate of Cooper. The statement was not harmless error with regard to the conspiracy convictions. The jury could have inferred from this testimony that a conspiracy existed and that Goldsmith participated in it. Nor was the statement harmless error with regard to the convictions for possession with intent to distribute narcotics.

The officer’s response allowed the jury to infer that Goldsmith had a special relationship with the apartment and with Cooper, and therefore, that Goldsmith had the right to exercise dominion and control over the apartment and its contents. Evidence of dominion and control would have established the other missing link in the State's case, providing the crucial element of the offense of possession with intent to distribute narcotics. At best, the presentation of the deputy’s testimony represented loose prosecution.

At worst, it could be seen as an attempt to present through the back door what the State had failed, for whatever reason, to present through appropriate prosecutorial evidence. Ill The judgment of the district court is reversed and the case remanded for entry of an order granting the writ of habeas corpus. REVERSED AND REMANDED. . Another officer testified that both bags of marijuana were in the shopping bag on the floor and were therefore not in plain view, although they were within Goldsmith's reach.

Because Jackson requires us to review the evidence in the light most favorable to the prosecution, we accept the testimony that the smaller bag of marijuana was in Goldsmith's plain view. . It is true that possession of more than twenty-eight grams of marijuana or ten grains of cocaine establishes a prima facie case of intent to distribute. S.C.Code Ann. § 44-53-370(d)(3). The quantity of marijuana present in the apartment more than satisfied this threshold requirement.

Although the amount of cocaine recovered was less than the statutory minimum for establishing a prima facie case of intent to distribute, the jury could well have relied on Goldsmith’s putative possession of the drug paraphernalia to infer that he had an intent to distribute cocaine. See State v. Adams, 291 S.C. 132, 352 S.E.2d 483, 485 (1987). Missing from the necessary and cumulative structure of proof, however, was the initial requirement for the proof of possession. Proof of possession, in turn, was dependent on proof of Goldsmith’s dominion and control over the drugs or drug paraphernalia. .

One officer testified that the police "had information that Mr. Goldsmith and Mr. Cooper would be present at the time” of the search, but the jury was properly told to disregard the statement. See discussion infra

part II. . In order to show that a constitutional error was not prejudicial, the State must prove that it is harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967).