Sunday, March 30, 2008

Memo to Felons: Seatbelts Suck-Don't Wear Them.

State v. Abrams, no. 07-0826 (Iowa Ct. App. Mar. 26, 2008)

Abrams, who bears the interesting first name of Zredirick (I'm not kidding), was convicted of possession of cocaine with intent to deliver. Scott County officers (whether city or county is not clear) had observed a BMW making regular stops at a local drug house during drug merchandising hours. When the BMW was not there, the merchandising stopped.

The Beemer was stopped because Abrams was not wearing his seatbelt, and during a consent search police uncovered nearly four grams of cocaine, residue, a scale with residue on it, a blunt, and a large amount of cash. Abrams argued in a motion that the drugs were for personal use but this was overruled and he was convicted on all counts.

A presentence investigation report led to the conclusion that Abrams was a rather unsavory character and something of a scofflaw who was also a deadbeat dad but nevermind. He probably thought he was a pimp daddy too. That's what prisons are for-sort of a rest cure to consider one's past actions and see how they fit into one's future and Abrams will have until April 29, 2016 to study the matter according to the Director of Corrections.

The court determined that a reasonable factfinder could have found that the defendant possessed the drugs with the intent to deliver them, considering that the fact finder weighs the evidence and determines the credibility of witnesses.

Memo to Prosecutors: Watch That Calendar or Get A Signed Waiver

State v. Abrahamson, no. 05-1653 (Iowa March 21, 2008).

Abrahamson was convicted of manufacturing methamphetamine and sentenced to an indeterminate term of 25 years in a fine state institution. He was charged by trial information April 30, 2004 with conspiracy. On July 28, the court found good cause to delay the trial until August 25 because Abrahamson had been in voluntary drug treatment. On August 13, the state dismissed the trial information in the interests of justice but no fact finding was made. The state filed a two count trial information the same day charging Abrahamson with conspiracy and manufacturing based on the same facts.

Abrahamson moved to dismiss second the trial information based on his speedy trial right, which was overruled in part. He appealed, and the Iowa Court of Appeals reversed. This appeal by the state followed.

The Court inquired whether dismissal of a trial information is in the furtherance of justice or because of a speedy trial problem. If it's the latter, it's got to be something other than the same offense as the original trial information.

It found that to obtain a dismissal in the interests of justice, the state must provide appropriate and sufficient reasons for the dismissal. A dismissal for failure to provide a speedy trial, on the other hand, is an absolute dismissal with prejudice.

As to the underlying issue of whether manufacturing and conspiracy charges that arise from the same underlying offense are "one offense" for purposes of speedy trial analysis, the Court answered in the affirmative.

One might ask why I've included this case here. It's simple.

Back when I was prosecuting, I had to dismiss a second offense DUI case against a celebrated local adherent of Bacchus because I had misunderstood the strictures of the speedy trial rule. I truly think I would rather have run naked around the courthouse three times at high noon carring a pig over my head than endure the tongue lashing I got from my boss and the arresting officers, had I been given the choice. It was a hard lesson, but one I never have forgotten.

On the other hand, dopers and drunks being what they are, there's no doubt that the state will get another bite at the apple in both cases in the not too distant future, but they'll just have to do it the right way instead of dealing from the bottom of the deck.

News on the Theory of Evolution From Tama County

State v. Fisk, No. 07-0790 (Iowa Ct. App. March 26, 2008)

Tama officers received a report of a car belonging to Fisk abandoned in the middle of the street and went to Fisk's apartment building to inquire. The officer pushed the button for apartment number 25 to summon Fisk to the lobby and when she arrived she smelled of burnt marijuana. Acting on this, police sought and obtained a search warrant for her apartment which revealed marijuana and smoking implements.

Fisk moved to suppress the evidence and her motion was granted. It was pointed out that the odor of marijuana was not present except on Fisk's person, and that could have come from anywhere, not just her apartment. The nexus between the crime and the location was lacking, it was argued, thus negating the probable cause requirement for warrants.

The state's discretionary appeal followed.

The Court of Appeals found that there was probable cause to search the apartment because the probable cause that an offense was committed in the place named was supportable by a reasonable common sense inference based on training, experience and direct evidence of drug use connected with the apartment.

What's that got to do with the Theory of Evolution? Well, it was said in the popular press of Ulysses S. Grant that he was proof positive that the theory was a damned lie. It's also proof positive if ever it was needed that dope makes people stupid.

Thursday, March 13, 2008

Be Careful What You Ask For

State v. Decker, no. 06-0478 (Iowa Feb. 8, 2008)

Decker attacked his former paramour McNeal with a hammer and a knife and was prosecuted for a variety of offenses including attempted murder. Decker gave a videotaped statement to police in which he was minimally responsive and affirmed he had nothing to tell police.

Decker asserted a defense of insanity and diminished capacity, and moved to suppress the videotaped interview, which was granted because of the detective's importuning Decker after he had invoked his right to counsel.

When the case came to trial Decker asserted his insanity defense which included evidence from medical professionals on his lack of competency. In rebuttal the State offered the testimony of the detective who had interviewed Decker, and offered the videotaped interview, saying that it was probative as to Decker's demeanor shortly after the incident. Other rebuttal witnesses testified as to Decker's demeanor in the time after the attack on McNeal.

The district court simply did not believe Decker's insanity defense, finding he had sufficient capacity to form specific intent.

The Supreme Court affirmed, finding that the videotape was probative of Decker's demeanor in a nontestimonial way, although the expressed promises of leniency and Miranda violations were impermissibly admitted.

Is You Is, Or Is You Ain't My Lawyer?

State v. Parker, no. 05-0588 (Iowa Feb. 8, 2008)
Parker was convicted in Dubuque County of second degree robbery of a bank and sentenced as an habitual offender.

Parker left the premises in a blue Chevrolet, and as a bank customer tried to follow him, he was blocked by a Blazer driven by Inger Hall-Smith, who removed the keys from her vehicle and exited it. Police stopped Hall-Smith a few moments later and discovered rubber gloves in her vehicle. She described the day's events as a bank robbery even though it had not been referred to as such by police.

The blue Chevrolet was found abandoned outside town on a farm.

Six weeks later Parker arrived at the home of James Hall, Inger Hall-Smith's brother, who was an attorney. Hall knew Parker and also knew that his sister had been arrested for her role in the case. Parker made incriminating statements to Hall during the course of the evening. Hall left his house the next morning and informed police of Parker's presence in his home.

Parker attempted to suppress the statements he had made to Hall incriminating himself, asserting that they were protected by attorney client privilege.

The district court disagreed, finding that no attorney client relationship existed because Parker did not go to Hall's residence to obtain legal assistance and never indicated to police that he was represented by Hall. For his part, Hall never thought there was a relationship, as evidenced by his going to police to report Parker's presence in his home.

The Court of Appeals had reversed Parker's robbery conviction but the Supreme Court found that the error was harmless and affirmed the district court.

Check That Implied Consent Advisory, Wouldja?

State v. Massengale, no. 06-1466 (Iowa Feb. 29, 2008).
An Iowa County deputy stopped Massengale in April, 2006 for speeding and he exhibited signs of intoxication. After failing HGN and a preliminary breath test, he was arrested. There was an open beer in the vehicle.

A Datamaster reading of 0.143 was registered and Massengale was charged with OWI first offense. Massengale moved to suppress the results of the test. alleging that the implied consent advisory was unconstitutional in that it misled him as regards the effect on his commercial driver's license. The district court granted the motion and the state appealed.

The Court upheld the district court, finding that the implied consent advisory as it was given did not adequately inform the defendant to allow him to make an informed decision regarding the advisability of a test refusal. A person in Massengale's position might have decided not to provide evidence had he understood he was going to lose his commercial driver's license.

The takehome from this case is limited. The implied consent advisory that was used was out of date. It's worth revieweing the one you use to make sure it is current.

Something Different

Here are some VIPs at this house. They're my son Jay and his daughter Victoria. We're very proud of them.