In 2007, Lieutenant Chad Dorn of the Picayune Police Department received instructions to be on the lookout for a stolen, green Ford Explorer. Dorn located what he believed to be the stolen vehicle at 615 North Buren Avenue in Picayune, Mississippi. Dorn knocked on the door and Kenneth Knight answered.
After requesting the driver of the vehicle, Lisa Shoemake came over and spoke to Dorn. She was Mirandized and then told Dorn that the vehicle belonged to her sister and that she had borrowed it without permission. Dorn knew Shoemake because he previously had arrested her, and she was known to have a drug problem.
When asked why she was at this house, Shoemake told him that she had purchased crack cocaine, which she had already ingested, from Knight. The house was then secured for a search warrant. Officers detained Knight, Shoemake, Angel Case (Knight’s friend) and Knight’s thirteen-year-old son until Dorn returned.
Dorn returned with the search warrant and under the cushions of a couch, he found a plastic baggy containing 2.6 grams of cocaine, $542 in cash, and a sawed-off shotgun. Dorn arrested Knight and Case. Shoemake was not arrested for the drugs or the stolen vehicle, but she was taken in for questioning.
Shoemake provided a written statement to police. According to Dorn, Knight declined to give a written statement, but he voluntarily gave an oral statement in which he claimed ownership of the seized cash and requested that it be returned to him.
At trial, Shoemake testified that she had gone to Knight’s house to buy crack cocaine, and she had purchased $30 worth of crack cocaine twice that day. Although she did not see an exchange of drugs between Case and Knight, Shoemake stated that Case had retrieved the drugs from Knight, and then had delivered the drugs to her. On cross examination, she noted that she had pled guilty to possession of a controlled substance and was serving a five year suspended sentence.
Case also testified for the State. She stated that Knight was a friend, and she had stayed with him at times because his home was a known place to acquire drugs. Case was not aware of Shoemake’s allegations against her – that she was distributing drugs from Knight’s home.
Case testified that when the police arrived at Knight’s home, Knight was asleep on the couch, where he slept often. Case acknowledged that she initially was charged as a codefendant in Knight’s case, but she had pleaded guilty to a lesser charge of possession.
Knight was convicted of possession of cocaine with intent to deliver or sell while in possession of a firearm and sentenced to 30 years. On appeal, he argued he was not in possession of the drugs or firearm. MSC affirmed.
In Dixon, we said that possession of a controlled substance may be actual or constructive. Constructive possession may be established where the evidence, considered under the totality of the circumstances, shows that the defendant knowingly exercised control over the contraband.
The defendant’s proximity to the drugs is a factor in establishing constructive possession, but it is not determinative. Other incriminating circumstances must be present to establish constructive possession.
This court has affirmed a conviction based on constructive possession when 1) the defendant owned the premises where the drugs were found and failed to rebut the presumption that he was in control of such premises and the substances within or 2) the defendant did not own the premises but was sufficiently tied to the drugs found there by a) exerting control over the premises when he knew or should have known of the presence of the substance or b) placing himself in the midst of items implicating his participation in the processing of the substance.
At trial, Shoemake testified that she had purchased crack cocaine from Knight twice at his home that day. Case testified that Knight was asleep on the couch before the police arrived and that Knight often slept on the couch. When executing the search warrant, Dorn found a plastic baggy containing several off-white, rock-like objects, $542 in cash, and a sawed-off shotgun under the cushions of the couch.
Although Knight denied ownership of the drugs, he claimed ownership of the money and requested that it be returned to him. Dorn testified that he believed that the money was profit from drug sales.
Shoemake’s testimony established that Knight sold drugs from his home. Case’s testimony put Knight at the spot where Dorn found the hidden contraband. Moreover, Knight’s admission to Dorn that the money belonged to him could lead a reasonable juror to believe that Knight knew that the contraband was stashed in the couch and that it also belonged to him.
There was also discussion of the sufficiency of the search warrant for the home. There was no ruling so I did not include that section above but you should be aware of the concern from the MSC. See below:
Knight makes bare assertions – specifically against Dorn – with no supporting evidence. But his claim that Dorn misled the magistrate regarding Shoemake’s involvement is of some concern. Nowhere in the affidavit did Dorn mention that Shoemake was in possession of a stolen vehicle and that she actually was purchasing drugs from Knight.
Perhaps there is evidence outside the record that would assist the court in reviewing Knight’s claim. Thus, out of an abundance of caution, we dismiss Knight’s ineffective assistance of counsel claim without prejudice so that he may raise his claim in a properly filed motion for post conviction relief, if he so chooses.