State v. Mercado

State v. Mercado  (95-392); 166 Vt. 632; 699 A.2d 50

[Filed 13-Jun-1997]


                          ENTRY ORDER

                 SUPREME COURT DOCKET NO. 95-392

                         JUNE TERM, 1997


State of Vermont                }      APPEALED FROM:
                                }
                                }
     v.                         }      District Court of Vermont
                                }      Unit 2, Chittenden Circuit
Ramon A. Mercado                }
                                }      DOCKET NO. 3308-7-94 CnCr


       In the above-entitled cause, the Clerk will enter:

       Defendant appeals his conviction for delivery of heroin, 18 V.S.A. §
  4233(b)(1), arguing that the trial court erred in refusing to instruct the
  jury on the lesser offense of possession, id. § 4233(a)(1).  We affirm.

       At trial, the State elicited testimony from a police informant, who
  testified that on March 23, 1994 he went to defendant's apartment and told
  defendant that he wanted to buy two bags of heroin.  Defendant gave him two
  bags, and the informant gave defendant seventy dollars. Two police
  detectives also testified.  The first described the investigation and the
  circumstances surrounding the informant's controlled purchase of heroin
  from defendant.  The second detective described a conversation that he had
  with defendant about the incident.  Defendant told the detective that he
  recalled getting off the bus from New York City on March 23, 1994, and that
  at that time defendant had about fifteen to thirty bags of heroin on his
  person.  When questioned about the actual sale of heroin, defendant
  indicated that he might allow a bag or two of heroin to leave his
  apartment, but stated that he did not sell heroin and did not make a profit
  from any heroin that left his apartment.

       Defense counsel requested that the jury be instructed on the
  lesser-included offense of simple possession of heroin.  See 18 V.S.A. §
  4233(a)(1).  The court refused this request, reasoning that the charge was
  not warranted because the same evidence that showed defendant possessed
  heroin also showed that he delivered it.

       We agree.  Although a criminal defendant is generally entitled to have
  the jury instructed on all lesser-included offenses, a charge on a
  lesser-included offense will be given "only if the facts in evidence
  reasonably support such an instruction."  State v. Delisle, 162 Vt. 293,
  301, 648 A.2d 632, 637 (1994).  Assuming that possession is a
  lesser-included offense of delivery, in this case the jury could not
  reasonably have found that defendant possessed heroin but did not deliver
  it.  The only relevant evidence is the informant's testimony that defendant
  gave the informant two bags of heroin.  As the trial court stated, "If
  [defendant] didn't hand [the bags of heroin] over to the confidential
  informant, there's absolutely no evidence that he possessed them.  And if
  he did hand them over to the informant, then he delivered them."  Although,
  as defendant argues, the jury is free to believe part but not all of the
  witness's testimony, here no part of the informant's testimony suggests
  that defendant possessed heroin, except the informant's statement that the
  defendant gave him the two bags.  Moreover, following a controlled
  purchase, the informant possessed the two bags of heroin and delivered them
  to the police.  Cf. People v. Steele, 412 N.W.2d 206, 212 (Mich. 1987)
  (where transfer of controlled

 

  substance was not disputed, jury could not consistently find defendant
  innocent of delivery and guilty of possession).

       Defendant also argues that the jury could have found him guilty of
  possession based on defendant's statements to the police detective.  Again,
  we agree with the trial court that this evidence did not support
  instructing the jury on possession.  First, the charge against defendant
  was based on the exchange between defendant and the informant, not on
  defendant's statement that earlier the same day he got off a bus carrying
  fifteen to thirty bags of heroin on his person. This fact, if true, was a
  separate occurrence, and could not be the basis for instructing the jury on
  possession as a lesser-included offense.  See id. at 210-11 (instruction on
  lesser offense of use of LSD should not have been given, because evidence
  of use of LSD was unrelated to charged offenses of delivery of LSD;
  deciding propriety of lesser misdemeanor instructions should not involve
  excursion into abstractions and admissions unrelated to charged offenses).
  Second, defendant's statement that he was carrying fifteen to thirty bags
  of heroin implies that defendant was carrying several hundred milligrams of
  heroin (the two bags delivered to the informant contained approximately
  seventy milligrams).  Such evidence thus supported a charge of felony
  possession of heroin, see 18 V.S.A. § 4233(a)(2), which carries a stiffer
  penalty than the charge for which defendant was convicted.

       Affirmed.



                              BY THE COURT:



                              _______________________________________
                              Jeffrey L. Amestoy, Chief Justice

                              _______________________________________
                              Ernest W. Gibson III, Associate Justice

                              _______________________________________
                              John A. Dooley, Associate Justice

                              _______________________________________
                              James L. Morse, Associate Justice

                              _______________________________________
                              Denise R. Johnson, Associate Justice