Criminal

Unlawful Possession of a Weapon Part 6

Ok, so we talked about a lot of bad cases let me talk about a couple of good cases. Sumlin, U.S. v. Sumlin, good case! It’s got language on a lot of different areas that you can use to defend your clients. Sumlin was minding his own business, driving his Corvette down the road when Derek Kyle’s or rather when Wesley Kingsley, Sergeant Wesley Kingsley was doing drug introduction and you all know what drug introduction means. It means, sitting on the side of the road and passing cars, stopping cars because you feel like it. So he sees Mr. Sumlin in his Corvette. He stops the Corvette. Inside the corvette they find, a pistol and they find a half smoked marijuana cigarette in the ashtray. So he gets arrested.

They go to trial and the evidence at trial, the sergeant… it is guy sergeant and I forget his name; Kinsley, sergeant Kinsley testifies that the body of Sumlin’s car has several loose screws which indicated possible transportation of drugs. He said that Sumlin called his friend to pick up the car and that made him suspicious because drug transporters always travel in pairs and that he, although he only found one marijuana cigarette he was pretty sure he would have find more drugs and the canine came to look for drugs on the car and that he questioned Sumlin about drugs. Problem was that Sumlin wasn’t on trial for possession of drugs; he was on trial for unlawful possession of firearm. So, we get a lot of really good language on Sumlin, we get language about prejudice they say,” hey look, all this stuff about the drugs that you mentioned, it was completely unfairly prejudicial. The case had nothing to do with drugs and you brought it in there for no reason” so there‘s really good language in Sumlin about unfair prejudice. Then relevant! There’s some really good language in Sumlin about relevance. They say,” Look, not only that man there was no reason to believe he was transporting drugs. Finding a half smoked marijuana cigarette in the ashtray does not arise to level that the kind of evidence that one would need to show that he was transporting the drugs.”

So, it’s got really good language on relevance and then it also goes into this extrinsic/intrinsic argument. It says that the evidence of the fire, or rather the evidence of the marijuana cigarette in the ashtray was extrinsic. So it’s got really good language, I encourage you to, if you have a 404(B) problem, remember the Corvette, remember the pistol, remember the Sumlin and check it out you’ll find very good helpful language there.

Then we got another good case; Zabaneh! And here, its good language in here too, that you can use, regarding the prejudice factors. Here, the court erroneously focused just on whether or not the extraneous offense evidence would inflame the minds of jury and Zabaneh court tells us,” Hey look, that’s one part of the test, but that’s not the whole test. There’s other parts of the test that need to be considered like confusion, like misleading the jury and other dangers. So there’s some good language there for prejudice factors.

The other thing that Zabaneh tells us is that in federal court you are entitled to an on the record balancing test analysis. So, if you’re in federal court ask for it, you’re entitled to get it on the record. Which means basically, that you’re entitled to have the judge explain, his thought process that what’s he thinking and why, he or she is making their decision. Don’t forget to request it. Ok, now we got the Texas two. So that’s basically what we got to say about federal law. Now we got Texas law and you’re going to find a lot things in Texas, this is going to go a little faster because Texas law is, there’s a lot of similarities. It’s a two-step test just like in federal law. we have the substantially out weight language which is just like in federal court.

We have got probative value; it is basically using the same things. Look at number three here; availability of alternative sources of proof. We’re going number three there; availability of alternative sources of proof. That means the same thing as we said in federal law. The weaker the government’s case, if they do not have any other alternative sources of proof, the higher the probative value is. The balancing test is, this is the look at the 4 here, same thing. The force of the proponent’s need for the evidence to prove a fact of consequence. Once again here, this is another example of why probative value increases the more the state needs the evidence. But the balancing test is roughly the same. Ok! Couple of differences on, on the record balancing. Texas on the record analysis is not required in Texas. You can ask for it and I suggest you do. But it’s not required. In the federal law, it is required. So, ask for it in both Texas and federal court.

The burden of proof! In Texas, the burden of proof is much higher; it’s beyond a reasonable doubt. Texas specifically chose not to follow the Huddleston standard; which is in federal court by preponderance of the evidence. So, it’s harder to get, the standard of proof in Texas to get an extraneous offense, is much higher than it is than federal court. Believe it or not, it’s easier to get the extraneous offense evidence in federal court. What a surprise! Alright! Let’s see, so there’s couple of things you need to do to object, timely object that the evidence is inadmissible under the rule 404(B). Now this can be commonly done with a motion alimony and I suggest motion in limine if you have the time. If you’ve asked for your notice, you’ll have notice ahead of time to make up a subject for motion in limine. Then require that the proponent show the court that the evidence is relevant apart from character. And don’t except a laundry list. Make them explain! Make them explain why, this evidence puts you in a logical checkmate. Request the proponent or the court to state on the record what the evidence is admitted for. Timely object that, the probative value is substantially outweighed by the danger of unfair prejudice. Ok, stop! So hold on! Let’s be clear here; there’s two different objections; one objections that there’s no logical nexus. That’s one objection. Then the next objections is that the balancing test that the danger of unfair prejudice is much greater than the, substantially outweighs the probative value. Those are two different objections that need to be made.

And you explain what the prejudice is. Argue all those points that I listed in when I was talking about the twins’ case I had. And then request a balancing test on the record, and then of course if it comes in request a limining instruction. In the paper, in the book you’re going to find examples of different little logical checkmates and other cases involving identity and Modus operandi, knowledge, intent, motive opportunity, preparation and all the things listed there. So, I encourage you; if you have any cases that deal with these issues use the materials. Most of the materials are federal; most of the materials in the paper are state court cases.

Francisco Hernandez

Author Francisco Hernandez

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