COURT UPHOLDS DRUG CONVICTION

Woman Was Sitting Near Crack Cocaine

A closely divided Louisiana Supreme Court on Tuesday upheld the
cocaine-possession conviction of a New Orleans woman arrested inside
someone else's home, where police found a small amount of the drug on a
coffee table near where she sat.

In 4-3 ruling, the court reinstated the conviction of Mary Toups, arrested
in 1999 when police found her chatting with a suspected drug dealer at his
New Orleans home in front of a coffee table where two pieces of crack
cocaine, three crack pipes and a razor blade were in plain view.

The justices split over whether a defendant's being where illegal drugs are
located or associating with someone who possesses such drugs proves what
the law calls "constructive" possession -- that is, dominion or control --
of the contraband.

The 4th Circuit Court of Appeal in May had thrown out Toups' conviction,
saying the evidence against her was insufficient. The Supreme Court
majority, led by Associate Justice Jeffrey Victory, said there was plenty
to convince "a rational trier of fact" beyond a reasonable doubt that Toups
exercised possession of the crack cocaine on the coffee table.

Victory, joined by Associate Justices Catherine Kimball, Chet Traylor and
John Weimer, said it was reasonable to conclude that Stanley Williams, from
whom undercover officers had made a drug buy earlier in the day, would not
sit at his coffee table with crack cocaine in plain view ready to be smoked
with someone he didn't know or "did not know would be amenable to using the
drugs."

Another factor pointing to Toups' guilt was the fact that she gave police a
phony name, Mary Billiot, when they arrested her, the majority said.

But Chief Justice Pascal Calogero and Associate Justices Bernette Johnson
and Jeanette Knoll dissented.

"Neither the defendant's mere presence in an area where drugs are located
nor the defendant's mere association with one possessing drugs necessarily
constitutes constructive possession," Calogero said.

"The state . . . presented no evidence to show that the crack pipes were
warm, that defendant's fingerprints were found on any of the drug
paraphernalia, that defendant had ingested any cocaine, that defendant
intended to ingest cocaine or that defendant was anything more than a guest
in the residence," he said.

In its May decision, the appeals court said there was no evidence that
Toups had bought one or both of the cocaine rocks on the coffee table, then
lingered to socialize with Williams.

"Considering the evidence adduced at trial, one can only speculate as to
what defendant was doing in the residence," the 4th Circuit said. "She
could have been a nondrug-using member of a neighborhood church
proselytizing defendants or an unrepentant crack addict preparing to
prostitute herself in exchange for a rock of crack cocaine."

The 4th Circuit added it was clear that Williams, next to whom police found
a plastic container with 17 pieces of cocaine inside, was the target of the
police investigation. The evidence showed Williams had "dominion and
control" over the drug in the container, as well as the two pieces of crack
on the coffee table, the appeals court said.

Williams pleaded guilty in 2000 to possession of cocaine and was sentenced
to three years in prison. He was released on parole in June, according to
the state corrections department.

Toups received a four-year term because she had a prior felony conviction
and was sentenced as repeat offender. She is slated to be released next
year, according to her attorney, Kevin Boshea.

Boshea said he disagrees with the majority decision and added that many
more drug cases like the one against Toups will be coming to the court.
"This is not an uncommon situation, by any means," he said. It is obvious
the court was "rather strongly divided as to the controlling jurisprudence
in this area."