The opinion of the court was delivered by: MARSH
Defendant John Trowery was convicted in a jury trial on charges of possession of cocaine with intent to distribute it in violation of 21 U.S.C. § 841(a)(1) (Counts 3 and 4) and of conspiracy in violation of 21 U.S.C. § 846 (Count 1). The defendant now moves for a new trial or, in the alternative, for judgment of acquittal. n*
John Trowery was one of six persons named in the indictment filed September 23, 1977. Co-defendant Nathaniel Goodson pleaded guilty to the conspiracy charge pursuant to a plea agreement in which the government agreed to move for dismissal of the substantive charges against him. Co-defendants John Duncan and Louis Pearson likewise pleaded guilty to the conspiracy. The two remaining defendants, Doree Holyfield and Fred Trowery, Jr., went to trial with John Trowery. Holyfield, who was charged with conspiracy and with possession of cocaine with intent to distribute (Count 2) was convicted on both charges. Fred Trowery, Jr., who also was charged with conspiracy and with possession of cocaine with intent to distribute (Count 4) was acquitted by the jury.
Goodson also testified that on April 26, 1977, while he was in Trowery's kitchen, John Trowery gave him six packets of cocaine, the subject of Count 3. Goodson said the cocaine was taken from a glass jar and the packets were enclosed in a plastic bag.
On the same day a search warrant was executed by police at the Trowery house. During the search a jar containing cocaine was found in the backyard by one of the officers. This was the subject of Count 4.
Taking the view of the evidence most favorable to the prosecution, as required, we think the guilty verdicts against John Trowery were supported by evidence beyond a reasonable doubt. Likewise, there was sufficient evidence for the jury to believe that there was an unlawful agreement among John Trowery, Nathaniel Goodson and Doree Holyfield to possess cocaine with intent to distribute it. The alternative motion of John Trowery for judgment of acquittal should be denied. Glasser v. United States, 315 U.S. 60, 80, 62 S. Ct. 457, 86 L. Ed. 680 (1942).
We are not convinced that the errors alleged require that a new trial be granted to John Trowery, and therefore his motion for new trial also should be denied. Specifically, John Trowery complains that the court erred: (1) in denying his pretrial motion to suppress evidence; (2) in admitting government exhibits which were derived from evidence seized by city police, and in denying, during trial, defendant's motion to reconsider his motion to suppress evidence seized from Nathaniel Goodson on April 26, 1977, since there was no outstanding arrest warrant for Goodson on that date; (3) in failing to grant defendant's motion for relief from prejudicial joinder with respect to Count 2 of the indictment; (4) in permitting cross-examination of Robert Rose in which Rose was asked if he had been involved in selling cocaine; (5) that there was insufficient evidence to support Count 4 of the indictment, particularly in light of co-defendant Fred Trowery's admission that the evidence which was the subject of Count 4 belonged to Fred Trowery; and (6) that there was insufficient proof that the residence in which John Trowery was arrested was, in fact, his own so as to justify the court's charge that the defendant Trowery could be in constructive possession of items found in the home or its curtilage. Each of these assertions of error will be addressed below.
A pretrial hearing was held on the defendant's motion to suppress evidence, and the motion was denied. The government exhibits derived from evidence seized by city detectives were properly admitted. See opinion dated January 3, 1978.
From the evidence presented at trial, it appeared that there was not an outstanding arrest warrant for Goodson on April 26, 1977, and defendant Trowery again moved to suppress the evidence seized from Goodson that day by Detective Bowie. In an oral order, the court denied the motion and stated the reasons for its ruling.
On April 26, 1977, police had assembled on Lincoln Avenue to execute a search warrant at the residence of John Trowery. The police saw Goodson's car in front of the residence and saw Goodson coming down the steps of the home, looking all around. Officers in an unmarked car pulled out of a nearby alley. Goodson saw them and began to run. Detective Bowie identified himself as a police officer and chased Goodson a short distance. A scuffle ensued as Goodson tried to place a plastic bag with silver foil packets in his mouth. Bowie, believing the bag contained narcotics, retrieved it. Then he arrested Goodson.
The information in the search warrant alleged that John Trowery was distributing cocaine. The affidavit stated that the informant had observed John Trowery give Goodson some cocaine in exchange for a large sum of money. These circumstances, combined with Goodson's flight, gave rise to a suspicion of criminal conduct and justified Bowie's attempt to stop Goodson. Also, Bowie was justified in believing that the bag of foil packets Goodson tried to place in ...