I confess to harboring conflicting feelings pertaining to the jury demand in criminal cases. Our model of criminal justice has at its center the “doctrine” that conviction requires proof beyond reasonable doubt of a defendant’s guilt. This “doctrine” serves both the (wrongly accused) innocents and those among the guilty against whom the evidence may be weak or in controversy. To me, the occasional acquittal of a guilty but fortunate defendant is well worth the price of protecting the innocent from wrongful conviction. The “doctrine” of proof beyond a reasonable doubt must be honored and must be followed.
Part of the problem is that we consign our cherished “doctrine” to a committee of six or twelve from a pool of the generally unqualified. It is a rare juror who possesses meaningful legal experience prior to taking the juror’s oath. The presiding judge will read from a list of monotonous instructions. The prosecutor and defense counsel will argue the facts and the law. But will the jurors be sufficiently educated about their nearly sacred mission before deliberations begin? Probably not. And there is no remedy.
Should a defendant waive trial by jury? While an uneducated jury is a risk to the criminal defendant, so is the jaded, fully educated criminal trial judge when asked to be the fact-finder. Some defense lawyers would rather trust a trial judge with a defense based on law while trusting a jury with a defense based on the factual evidence. While (I suppose) the vast majority of jurors take their role seriously and want to “do the right thing,” I wonder about their willingness to be constrained by the law in reaching that end.¹
Judges and others may often state that no juror should ever be held to account for his verdict. I disagree. In the matter of a criminal trial jurors are the custodians of that essential “doctrine” of proof beyond a reasonable doubt. Any breach of that great responsibility is damnable. We hear of new trials or dismissals for (mostly) men who have spent years or decades in prison following a wrongful conviction. Do we blame the police? Do we blame the prosecutor? The judge? The defense lawyer? . . How about the jury that sent an innocent defendant to prison, and maybe to death row?
There are still some among us who view a jury’s guilty verdict as somehow “advisory” or subject to correction in the Court of Appeals or in the Indiana Supreme Court. The misconception is that there is meaningful review on appeal of the sufficiency of evidence to support a guilty verdict. THERE IS NO MEANINGFUL REVIEW ON APPEAL OF THE SUFFICIENCY OF EVIDENCE. See, for instance the CLB featured article titled “Two Sets of Rules: Hypocrisy in Appellate Review” (posted January 5, 2018). The point here (finally) is that a jury has the first and last opportunity to meaningfully consider criminal trial evidence under the “doctrine” of proof beyond reasonable doubt.
The case serving as the catalyst for this CLB editorial is that of Pierre A. Smith, Jr. versus the State of Indiana. Pierre’s conviction below of the unlawful (felony) possession of a firearm by a serious violent felon was affirmed November 29, 2018 in the COA. Pierre’s unsuccessful theory on appeal was that the State failed to prove that he “constructively” possessed the subject firearm.
The scene was the East Side of Indianapolis on and near LaSalle Avenue.¹ Officer William Wogan was on patrol and noticed a silver Chevrolet Monte Carlo rolling through a stop sign and failing to stop at a second stop sign near East 11th Street and LaSalle. The driver (and lone occupant) of the Monte Carlo was Pierre A. Smith, Jr. Officer Wogan followed the Monte Carlo northbound on LaSalle when the vehicle suddenly slowed and moved abruptly to the curb. Wogan activated his lights to initiate a traffic stop. The officer could see Pierre moving laterally from the driver’s seat toward the center (console?) of the front seat and back. The passenger side of the Monte Carlo was not in view.
Despite the activated lights on Wogan’s vehicle, Pierre drove away northbound on LaSalle. Wogan followed and radioed for assistance. Pierre turned right (East) onto 13th Street and drove approximately one-half block farther before stopping. Pierre was then compliant withWogan’s commands. Officer Wogan determined that Pierre had no license to drive, no active warrants, and no handgun carry permit. Backup Officer Brett Lorah made a “quick sweep” of the Monte Carlo for weapons and found none. Officer Lorah noted that the Monte Carlo’s front passenger window was lowered. Remarkably, Wogan turned Pierre loose with no more than the admonition that he needed a licensed driver to operate the Monte Carlo.
The permissive Officer Wogan remained sufficiently suspicious about Pierre and the earlier stop at the LaSalle curb that he returned to that spot with Officer Lorah to have a look. There they spotted a black and silver 9mm semi-automatic pistol lying in the “freshly mown” grass of an abandoned property at a distance of about 15 feet from the curb where Pierre had stopped momentarily. There were scratches on one side of the pistol, consistent (in Wogan’s opinion) with having been “thrown across the concrete [sidewalk] and on the ground.”
Things just kept getting better for Wogan and Lorah when they observed the silver Monte Carlo proceeding “backwards”on 13th Street into the LaSalle intersection and then turning South onto LaSalle (front end first, I think). As Pierre drove the Monte Carlo past the spot where the pistol had just been recovered, Wogan recognized the unlicensed Pierre as the driver and Sent Officer Lorah in pursuit for a traffic stop and arrest.
Wogan testified at trial to all the circumstances mentioned plus his observations that no other people were seen in the area of the pistol recovery, that the scratches on the pistol looked “relatively fresh,” and that the pistol appeared not to have been exposed to the elements for a long while. This evidence was enough (for the jury) to convict Pierre and enough for the COA to hold that the evidence was sufficient to prove “constructive” possession. The theory of the prosecution was that Pierre had the pistol in his car until ditching it at the LaSalle curb through the lowered front passenger window.
There was no mention in the COA Opinion of police efforts to recover latent fingerprints or contact DNA from the exterior parts of the pistol, the magazine, or the ammunition. However, an inspection of the “public” version of the Appellant’s Appendix from the online case file shows a Stipulation of the parties to the effect that latent prints recovered were not identifiable and that no DNA profile could be identified. There was no mention in the COA Opinion whether the pistol bore the smell of recent firing and, if so, whether Pierre’s hands, wrists, and sleeves were swabbed for gunshot residue. There was likewise no mention in the COA Opinion of police efforts to trace the pistol through transfer records.² The manufacturer or distributor can identify the gun dealer that took delivery. The gun dealer keeps records of the sale (perhaps) to a person who is an associate or relative of the defendant. The absence of mention of any search of transfer records most likely means that no such search was made or that a search was made but produced no useful information. Accordingly, there was no forensics link between the pistol and Pierre nor any firearms records link between the pistol and Pierre. Likewise, there was no eyewitness testimony of anyone seeing the pistol in Pierre’s car, in his hand, or on his person.
The circumstance of scratches on one side of a ditched pistol lying in “freshly mown” grass would appear to be “consistent” with mower blade contact. Did Officer Wogan examine the interior barrel of the pistol for grass clippings deposited (perhaps) by the fresh mowing? There is no mention in the COA Opinion (and probably not in the trial court) of any examination of the interior barrel.
Given its lack of direct evidence (like eyewitness testimony) that the pistol was ever in Pierre’s hand or on his person, the prosecution opted to embrace the theory of “constructive” possession. Here is a neutral explanation of “constructive” possession taken mostly from the mentioned COA Opinion. Actual possession is the direct physical control of an item. Constructive possession occurs when a person has the intent and capability to maintain dominion and control over the item. Evidence of a suspect’s knowledge of the item is essential to proof of intent. Proof of capability requires a showing of the suspect’s ability to reduce the item to his (actual) possession.
When was the gun in Pierre’s hand? Pierre may have had the pistol in his hand while ditching it at the LaSalle curb. Such possession would have been actual possession and not the “constructive” possession favored by the prosecution. When was the gun in Pierre’s constructive possession? This fair question seems not to be addressed in the COA Opinion. There was certainly no constructive possession by Pierre after (and if) he tossed the pistol out a car window.
The absurdity of the prosecution’s theory of constructive possession arises from the foundational speculation that Pierre held the pistol in his hand as he tossed it. Having a pistol in one’s hand is actual possession. In the case at bar constructive possession was more akin to imaginary possession. Still, the evidence of constructive possession, however scant and speculative, was sufficient for a compliant jury and for the COA upon its standard of review that dooms most sufficiency appeals. The appeal of Pierre A. Smith, Jr. deserved better consideration from the COA than it received. For instance, the COA seems not to have addressed my fundamental question:
Upon the (sufficient) evidence below, just when (and where) did the defendant constructively possess the pistol?
Let’s review the “evidence” against Pierre. Before the trailing police vehicle exhibited flashing lights, he pulled to a curb and appeared to move around a bit in the front seat. It was discovered later that the front passenger window was in a lowered position. The evidence so far is probative of nothing in the way of criminal behavior.
Then Pierre clearly broke the law of resisting by auto, a felony, when he drove off despite Officer Wogan’s flashing take-down lights. Such flight is evidence of the crime of resisting by auto contrary to IC 35-44.1-3-1(b)(1)(A). Such flight may also constitute evidence of consciousness of guilt where other evidence is admitted to prove the prohibited act. Pierre’s cooperation when he stopped nearby on 13th street is probative of nothing in the way of criminal conduct. Pierre’s return to the scene of the LaSalle pistol recovery is evidence of a second incident of driving without a license and exquisitely poor judgment. The scratches on the pistol that could have come from contact with a concrete sidewalk or from contact with mower blades are not probative of criminal conduct on the part of Pierre.
Was there evidence of Pierre’s knowledge of the pistol? The answer is that Pierre knew of the pistol (thereby having the potential to exercise dominion and control without actual possession) only if he took that pistol in hand and heaved it out the open passenger window. The prosecution declined to pursue the theory of actual possession.
I would be willing to wager a fair sum that the pistol recovered on LaSalle had been in the possession of Pierre. But my confidence in that wager would rest on speculation. The jury in a criminal case is charged not to rely on speculation. Apart from the general weakness of the State’s evidence against Pierre, the best argument for his innocence is that he seems not to exhibit (by his behavior) that level of care and awareness required to handle a pistol without depositing fingerprints or contact DNA.
As of this writing a Transfer Petition has been filed. There should (but will not) be a grant of Transfer. Pierre inspires no sympathy. As of May 31, 2017 he was already a serious violent felon. Whether or not he had a gun in the car, he drove on a suspended license and couldn’t be bothered to obey stop signs. After a remarkable free pass at the hands of Officer Wogan, Pierre drove (again) with no license and returned to the likely investigation scene. Pierre was certainly guilty of at least one felony count of resisting arrest by auto. He appeared to have committed the offense of driving while suspended.³ Yet the state opted to try him only on the weapon charge, as to which the probative evidence was insufficient for a reasonable jury to find either constructive or actual possession beyond a reasonable doubt. I would not care to know Pierre. He is a repeat offender exhibiting arrogant stupidity. Still, he deserves a reversal (on Transfer) that he is unlikely to receive.
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¹ From birth to fourth grade, your blogger lived within a couple of miles of the “high-crime” area described.
² The typical handgun is not a weapon requiring serial number “registration.”
³ Pierre was charged with DWS, but that charge was dismissed before trial.
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