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What's Up in the 8th

One of the favorite tests courts employ is the "totality of the circumstances."  The nice thing about it is that it can justify virtually any result the court wants to reach.  In a search case, for example, if it wants to find for the defendant, it will look at each circumstances in isolation, decide that each doesn't provide the requisite proof, and apply that conclusion to the whole issue.  That's a mistake; sometimes, the whole is greater than the sum of its parts.  There are other times, though, when "totality of the circumstances" really means "totality of the circumstance":  there is one overriding factor which, if taken out of the equation, changes the entire result.  That happened twice last week, with disparate results.

Take Michael Hackney, who appears at first glance to be this week's candidate for the "Wrong Place, Wrong Time" award.  There he is, minding his own business, sitting in the back seat of Charles Finley's car.  Unbeknownst to him (and to Finley as well), the cops have had Finley and his girlfriend, Katherine Crawley, under suspicion as drug dealers, and on this particular occasion they've set up an undercover buy from Finley.  They watch Finley's car, with Hackney and Crawley as occupants, proceed to the area where they buy's supposed to take place.  He's the only person who leaves the car, and shortly returns.  The police follow the car, pull it over, and arrest the occupants.  Hackney's taken to jail, where before being strip-searched, he turns over a bag containing 28 grams of powder cocaine.

The detective testified at trial that "it is customary in large-scale narcotics for individuals to work in groups of two to three people," primarily so that one or more can serve as a lookout for law enforcement.  The trial court, and the appellate panel in State v. Hackney, cite this as one of two parts of the "totality of circumstances" showing probable cause to arrest Hackney.

What was the other one?  When the police opened the back car door, there was a black digital scale, commonly used to measure drugs, sitting next to Hackney.  That changes things, doesn't it?  In fact, had the scale not been there, I don't see how you get to reasonable suspicion, let alone probable cause:  the guy's just a passenger in a car.

Let's take case number two, State v. BlackshearThe cops flag a UPS package as possibly containing drugs, bring in the dog, and find it contains a hefty amount of marijuana.  It's addressed to a "Jarret Smith," and so the cops get an anticipatory search warrant and set up a delivery.  Blackshear opens the door, accepts the package, and signs for it.  Two hours later, the police execute the warrant, and find Blackshear and another male sitting in the living room, playing video games.  The package is near the front door, about six to eight feet away, unopened.  There was a scale with marijuana residue on the coffee table in front of Blackshear.

If you think that sounds familiar, you've got a really good memory, because that's almost the identical set of facts from the 1995 8th District case of State v. SmithIn that case, the court affirmed Smith's conviction, noting discrepancies in the statements she gave police and her testimony at trial, and upheld the trial court's instruction that it could find the defendant guilty "if she deliberately closed her eyes to what she had reason to believe [were] the facts."  Indeed, the Blackshear court devotes a good bit of time to the "willful blindness" instruction, noting several other cases where it's been appropriately applied.  (Today's useful hint, from State v. McNeal:  if you meet somebody in a parking lot and give him a package in return for money, your claim that you thought that the package contained clothes, instead of drugs, is going to met with skepticism.)

The court concludes that the evidence is insufficient in Blackshear's case, which it probably wasn't.  (I'd feel much more comfortable with a finding that it was against the manifest weight of the evidence.)  But here's one little fact that would have almost certainly changed the result:  what if Blackshear had signed Jarret Smith's name on the delivery sheet?

A couple of other cases of note.  Your client shoplifts from three different Walmarts over a two-week period of time.  (Not that he's not ambitious; he just figures he can get more bang for the buck, and thereby avoid the $500 threshhold for a felony, than if he hits Nordstrom's.)  He's charged in the same complaint with the three different offenses, and several years later comes to you and asks you to get them expunged.  No can do, you tell him:  the minute you committed the second offense you were no longer a first offender.

Not so; the statute provides that if you garner two or three convictions contained in the same complaint (or indictment or information) and result from "related criminal acts that were committed within a three-month period but do not result from the same act or from offenses committed at the same time," they're counted as one conviction.  The defendant in State v. M.D. tries to avail himself of that provision, but the trial court shoots it down, finding that the defendant's conduct took place over a year's period of time.  But wait!  The trial court had held that the 1st count of the indictment, which alleged conduct occurring between February and June, 1996, was more than a year from one of the other two counts, which alleged August 29, 1997, as the date.  The defendant was acquitted of the first count, though, so that doesn't matter, and although the second count alleged a year-long date -- July of 1996 through June of 1997 -- the latter date was within the year, so the case gets bounced back for evaluation of the other factors.  If I'm M.D., considering the discretion that's invested in the trial court, I'm not getting my hopes up.

Last, we come to State v. Szorady, which teaches that if one is going to burn his bridges, one should not be standing on them at the time.  Szorady, charged with repeatedly raping his step-daughter, finds fault with each of the first three attorneys assigned to represent him, and succeeds in having them replaced.  The fourth is no better, he claims, and so he demands to represent himself.  When the to-be-anticipated conviction results, Szorady appeals, arguing that he was forced to represent himself because of legitimate concerns about his appointed counsel.  Alas, the court finds, "the record is clear that Szorady did not, in fact, have legitimate concerns about his appointed counsel."  One would have more confidence in that finding if the opinion cited any portion of the record purporting to confirm that.  I checked the docket, though, and Szorady had the benefit of one of the most patient and thoughtful judges on the bench, and three of the most seasoned trial lawyers, so I'm not going to get terribly worked up about his conviction and prison sentence, the latter of which, should he last that long, will see him freed just in time to prepare for the celebrations of the Constitution's three hundredth birthday.

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