Tuesday, April 19, 2011

Know When to Fold ‘em . . . .


State v. Erwin, 2011 VT 41

I like to play poker.  The game involves a most-interesting combination of skill and luck.  Sometimes a calculated bluff goes wonderfully; sometimes it doesn’t work out.  By analogy, today’s case tells us what most experienced poker players know: you shouldn’t go all-in on a high-card-five hand.  Defendant here appeals his convictions of obtaining a regulated drug by deceit and possession of a narcotic—convictions he helped secure by insisting on a drug test to prove . . . that he had the drugs in his system.   The SCOV affirms.  

Defendant, a travelin’ nurse, allegedly liked Fentanyl—a Schedule II pain medication.  Fentanyl looks like water, and so, theoretically, one could replace Fentanyl with water and no one would really know.  Unless, of course, a coworker saw one doing this when one has no reason to be near where the Fentanyl is kept.  That, hypothetically, might cause a doctor to do something every parent does when they leave the kids home alone for the weekend—mark the level on the bottle.  Not so hypothetically in this case, the doctor carefully set the labels on the Fentanyl syringes.  The label on one syringe didn’t line up.  Doc sent the syringe to the lab, and, sure enough, someone had substituted water for Fentanyl.  


Wasn’t me,” said Defendant who insisted on taking a urinalysis test” to prove it.  Employer raises and calls Defendant's bluff.  Cards come up, and Defendant is holding the test-positive-for-Fentanyl hand.  Whoops.

At trial, Defendant moved for acquittal at the close of the State’s evidence.  His essential argument was that the coworker who had seen him playing with the syringes had bad eyesight, and she didn’t identify him in court or actually see him take any drugs.  Thus, Defendant argued, the State had failed to prove the essential element of identity.  The trial court denied the motion, noting that the State had shown through other witnesses and circumstantial evidence that Defendant was the same person that the coworker had seen.

Defendant renewed the argument as the main basis of his appeal, along with three additional claims.  The SCOV didn’t buy any of them. 

Regarding the identity claim, the SCOV began its analysis by noting the general requirement that there be an in-court identification of the accused.  The SCOV then explained that several other witnesses had identified Defendant as the same person that the coworker had seen messing around with the syringes.  Circumstantial evidence also showed that Defendant was the same person.  Accordingly, the SCOV reasoned that this was hardly a case of mistaken identity as Defendant seemed to argue.

Defendant’s three remaining claims were in clear-error territory.  As Professor Y. Sam of the Law School West of the Pecos explains: “That there means the court has to foul up somethin’ terrible ‘fore the SCOV is gonna reverse and remand.”  Defendant’s first clear-error claim was that the trial court failed to acquit him of the obtaining-drugs-by-deceit charge on its own motion.  The SCOV notes that a trial court is obligated to acquit a defendant on its own motion only when it would be unconscionable—or as my other favorite law school professor puts it “unconsciousness-able”—to convict based on the evidence.  “Not quite there,” says the SCOV, “In fact, not even close.”  The SCOV reasoned that Defendant’s manner of obtaining the Fentanyl was the “very essence of deceptiveness”—and that last is a direct quote.  Defendant replaced a regulated drug with water.  Common sense carried the day, and Defendant’s argument is rejected. 

The SCOV also rejects Defendant’s argument that the trial court’s definition of deceit was in error.  The trial court defined deceit as “intentionally giving a false impression,” and the SCOV said, “Uh, yeah, dude—that’s pretty much the dictionary definition of deceit.”  (Slight paraphrasing.) 

Defendant’s final contention was that it was constitutional error to admit the lab tests—specifically, Defendant argued that the trial court’s admission of the tests without testimony from the lab technicians who performed the testing violated his constitutional right to confrontation.  The SCOV disagreed in the context of this particular case for the following reasons.  At trial, laboratory directors testified as to the testing procedures followed and that the tests were performed in the regular course of business.  The results were admitted as business records, and the SCOV rejected Defendant’s contention that the test results were so clearly “testimonial” as to require testimony from the technicians who performed the tests.  The SCOV noted that the test results were not prepared in anticipation of charging Defendant with an offense.  The tests were requested by Defendant’s employer and Defendant himself—accordingly, the business-records exception was properly applied by the trial court in this case.

And so, if you’re accused of doing something wrong, it’s usually not a good idea to insist on proving that you indeed have been doing something wrong.  Likewise, in poker, a bluff is only effective when you know your opponent isn’t going to call. http://www.youtube.com/watch?v=gzZNh0P9K38

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