Current Appeals in the Pipeline

27 04 2012

There are a few appeals that have a legitimate shot at garnering a reversal by the Arkansas Supreme Court or Court of Appeals.  I enjoy having numerous appeals because inevitably there will be a few with merit.

In Jordan v. State, the appellant was convicted of Rape and sentenced to life imprisonment.  The primary error alleged is that the trial court allowed the State to get into the specific nature and facts of prior convictions under Arkansas Rule of Evidence 609.  Rule 609 permits prior convictions to be used for impeachment, but only allows the State to ask if Jordan was convicted of “X” offense on “X” date.  See Ellis v. State, 2012 Ark. 65.  Instead, the State was permitted to get into the facts of appellant’s prior convictions, including one for having sex with a 6-year-old.  Graphic details were elicited about the incident.  This was obvious error and I cannot imagine anyone deciding that it was harmless error to allow.

In Robelo v. State, the appellant was convicted of possession of a controlled substance with intent to deliver.  On appeal, the sole argument is the sufficiency of the evidence.  The drugs were found hidden in an apartment the appellant admitted to staying at with other individuals.  Under a joint-occupancy analysis, the State must prove facts linking the appellant to the drugs and demonstrating he had knowledge of the drugs.  Here, the only evidence the State has is an alleged drug deal that no one saw occur.  To say this is sufficient evidence would be to infer and drug deal and from that infer knowledge of the drugs in the house.  This is called “pyramiding inferences” and is not permitted.  See Moran v. State, 179 Ark. 3, 13 S.W.2d 828 (1929).  Consequently, the appellant’s conviction should be dismissed.

In Gutierrez v. State, the appellant was convicted of possession of a controlled substance with intent to deliver.  The sole argument on appeal is that the evidence should have been suppressed.  Federal agents, armed with an arrest warrant for Alonzo Hernandez, conducted surveillance of a residence on the morning of the search.  There were no vehicles at the residence nor was there any indication anyone was home.  The agents became restless and approached the house.  The agents noticed a broken window and decided that entry was permitted based on the arrest warrant and exigent circumstances due to the broken window.  The trial court found both exigent circumstances and that the arrest warrant permitted entry.  The arrest warrant does not permit entry because there was no reasonable belief Alonzo Hernandez lived there nor was there a reasonable belief he was home at the time, considering his car and all other cars were gone.  As far as exigent circumstances, Arkansas Rule of Criminal Procedure 14.3 allows entry only if the officers have reasonable cause to believe an occupant is in imminent danger of death or serious bodily harm.  The agents did not even know if someone was home so they could not have had reasonable cause to believe they would be at risk of death.  Consequently, the evidence should have been suppressed.

In Todd v. State, the appellant was convicted of internet stalking of a minor and sentenced to 20 years in ADC.  At trial, the evidence was that the appellant chatted to a sheriff pretending to be a 15 yr old girl.  After a week of conversations, including some sexual, the sheriff asked the appellant to come meet him.  After some initial hesitancy, the appellant agreed.  Upon arrival the appellant was arrested.  The appellant attempted to have an expert in psycho-sexual testing testify that the appellant was simply looking for affection and likely did not travel for sexual purposes.  The trial court excluded the testimony.  This exact issue has never been ruled on by an Arkansas appellate court; however, it seems clearly relevant along the lines of an expert character witness.  This would certainly be harmful error as it pertained to the central issue of purpose of the visit.




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