NBLSA Mock Trial Problem

2013-2014 NBLSA MOCK TRIAL PROBLEM

1

MANCHESTER: IN THE CIRCUIT COURT FOR THE CITY OF WESTHAVEN STATE OF MANCHESTER v.

Case No. CR13-2255

DEVON MONROE, Defendant.

INDICTMENT THE GRAND JURY CHARGES THAT: COUNT ONE On or about March 31, 2013, in the City of Westhaven, the Defendant knowingly sold, gave, or distributed cocaine, a Schedule I controlled substance, in violation of Manchester Code Section 18.2-248.

COUNT TWO On or about March 31, 2013, in the City of Westhaven, the Defendant knowingly possessed with the intent to sell, give, or distribute marijuana, in violation of Manchester Code Section 18.2-248.1.

COUNT THREE On or about March 31, 2013, in the City of Westhaven, the Defendant maliciously shot, stabbed, cut, wounded, or by other means caused bodily injury to another, with the intent to maim, disfigure, disable, or kill such person, in violation of Manchester Code Section 18.2-51.

2

COUNT FOUR On or about March 31, 2013, in the City of Westhaven, the Defendant used or attempted to use a pistol, shotgun, rifle, or other firearm or displayed such weapon in a threatening manner while committing or attempting to commit malicious wounding, in violation of 18.2-53.1.

COUNT FIVE On or about March 31, 2013, in the City of Westhaven, the Defendant knowingly and intentionally possessed a firearm, after having been convicted of a violent felony, in violation of 18.2-308.2.

A True Bill. ___________/s/_______________________ Foreperson _______May 28, 2013 ________________ Date

3

SPECIAL INSTRUCTIONS 1.

Federal Rules of Criminal Procedure and Federal Rules of Evidence apply.

2.

All exhibits are either originals or admissible duplicates pursuant to FRE Rules 10011003.

3.

Motions in limine may be heard prior to the commencement of trial.

4.

The State may call any two of the following witnesses: 1) Detective Marion Davis; 2) Officer Adrian Alexis, and 3) Stacey Mills. The Defendant may call any two of the following witnesses: 1) Cameron Sherrod; 2) Officer Cal Ellis; and 3) Angel Rodriguez.

All witnesses are gender neutral.

5.

No witness is permitted to “invent� any other individuals that are not included in the facts.

6.

Aside from the Defendant, all individuals that are included or mentioned in the facts, but not listed as potential witnesses, are unavailable to testify at trial, pursuant to FRE 804.

7.

All participants are expected to make reasonable inferences only from the facts that are given.

8.

Only exact copies of the exhibits included in this packet are permitted during competition unless pre-approved by the TMMTC Mock Trial Board.

9.

The Defendant has pled not guilty of all charges in this case. The State may Nolle Pros charges prior to trial without consent of the Court.

10.

Any modifications to the jury instructions are not permitted.

STIPULATIONS OF FACT

1.

There are no issues with the chain of custody of any physical evidence. The photos of physical evidence from crime scene may be admitted through Officers Alexis and Ellis and Detective Davis.

2.

The following Exhibits are pre-authenticated: Exhibits E, K, and O as true and accurate copies of what they purport to be.

3.

The following Exhibits were admitted prior to trial: Exhibits A, L, M, N, and P.

4.

In this jurisdiction, a police officer may testify as an expert regarding indicia of intent to distribute narcotics based on their training and experience as a law enforcement officer.

5.

Robbery is a violent felony. Cocaine is a Schedule I controlled substance.

4

INVESTIGATOR’S NOTES Detective Marion Davis DOO: March 31, 2013 LOCATION: Shirley Avenue and Pacer Drive TOO: 2:37 PM SUSPECT(S): Devon Monroe; Cameron Sherrod; Mark Brown; Stacey Mills 2:37 PM On March 31, 2013, Detective Swanson and I were doing surveillance in an unmarked vehicle near the corner of Fontaine High School at Shirley Avenue and Pacer Drive. We were parked facing westbound on Shirley Avenue, facing Pacer Drive. We observed two individuals standing at the corner for about fifteen minutes. We later identified the two individuals as Devon Monroe and Cameroon Sherrod. Monroe was approximately 25 – 30 years old, thin build, and dark hair. He/she wore dark jeans, tennis shoes, and a dark sweatshirt. He/she also carried a blackish or brownish satchel that he/she wore on his/her shoulder the entire time that we observed him/her. Monroe and Sherrod stood there conversing with each other and, from time to time, each would speak on a cell phone that Monroe produced from his pocket. We were not able to hear the conversation, but on each occasion that Monroe spoke on the cell phone, he became more and more animated. He spoke on the phone on approximately four separate occasions.

After fifteen minutes of observing Monroe and Sherrod, a black, late-model Buick proceeded southbound on Pacer Drive, stopping at a stop sign on the corner of Shirley and Pacer.

When Monroe saw the vehicle pull up, he/she gestured to the individuals in the car to come over to him/her. The driver of the Buick then put the car in reverse and parked the car at the curb near the stop sign. The passenger of the Buick then exited the vehicle and crossed Pacer Avenue to approach Monroe and Sherrod. We later identified the driver of the Buick as Mark Brown and the passenger as Stacey Mills. As Mills approached Monroe and Sherrod, Monroe reached into the satchel and produced what appeared to be a plastic baggie which he/she gripped in his/her right fist. Monroe then held his/her hand out as if to shake Mills’s hand, and Mills produced his/her hand which appeared to contain green paper that looked to be American money. Mills and Monroe then clasped each other’s’ hands as if to shake hands, gave each other a partial hug, and then Mills turned to walk back toward the Buick. The interaction between Mills and Monroe was approximately 3 – 5 seconds. Mills walked back over to the driver’s side of the Buick and leaned inside the window to speak with the driver. At that point, Detective Swanson started our vehicle, and I exited the vehicle and yelled for all of the individuals to “stop.” As I did so, Monroe turned to face me, and we looked at each other, eye-to-eye, for approximately 3 seconds.

At that point, Monroe, Mills, and Sherrod all ran through a field adjacent to the junior high school and Pacer Drive toward a wooded area behind the school. I attempted to give chase, but was not able to effectively pursue them due to a recent painful injury to my ankle.

5

While I gave brief pursuit to the fleeing individuals, Detective Swanson drove our vehicle to cut off the Buick as Brown tried to flee southbound on Pacer. The two vehicles collided at the corner, and Detective Swanson exited our vehicle, drew his weapon, and ordered Brown to turn off his vehicle and exit. I joined Detective Swanson, also drawing my weapon, and placing handcuffs on Brown. We waited approximately ten minutes for a squad car to arrive, at which time we placed Brown in that vehicle and proceeded to search the Buick. In the door console on the driver’s side, I discovered a single plastic baggie containing what appeared to be crack cocaine. We recovered no other suspected narcotics from the vehicle. We also found $100, in $20 bills, from Brown’s pockets. We sent the cocaine to the state laboratory for testing.

We then put out an All-Points Bulletin to all precincts for the fleeing suspects, giving them descriptions of all three suspects.

3:30 PM I traveled to the West End Apartment Complex which is on the northern border of the wooded area where the suspects ran. I spoke to Security Officer Adrian Alexis, whom I know, and asked him/her whether any suspicious persons had run through the apartment complex recently. He/she stated “no,” but stated that he/she would keep an eye out. I told him/her “good,” and “thank you.”

4:12 PM Secured warrant for possession of cocaine and conspiracy to distribute cocaine against Mark Brown.

8:37 PM I received a dispatch that Officer Adrian Alexis reportedly arrested two suspects on the property of the West End Apartment Complex for suspected possession of marijuana. I told dispatch that I would respond to the scene and would respond to the scene. Also, I told dispatch to tell Officer Alexis that I was on my way and to be careful that the suspects may be armed and dangerous.

While en route to the scene, I received a second dispatch that Officer Alexis had found that each of the suspects were armed with firearms, and that there were several baggies of drugs found in a car that the suspects were sitting in prior to their arrests.

When I arrived at the scene, I recognized the two individuals in custody as the two individuals that were involved in the hand-to-hand transaction which I observed earlier in the day. I learned that the suspects’ names were Devon Monroe and Cameron Sherrod. I then collected the evidence which Officer Alexis had discovered, namely the two handguns which were placed on the hood of Officer Alexis’s vehicle, and several baggies of marijuana which were on the floor of the passenger side of the suspect’s vehicle. The baggies of marijuana were lying on a brown-paper bag, from which Officer Alexis removed them. I could smell the marijuana through the baggies, and the smell was very strong. I also recovered a single baggie 6

of marijuana which Officer Alexis produced from his/her pocket, stating that this baggie had been given to him/her by Monroe during their initial encounter. The baggies were sent to the lab for testing. I also collected the shoulder bag and what was inside, including several blank composition notebooks and a lap top computer. I immediately noticed that the amount of marijuana was more than typically used by an individual and was wrapped in a way that in my experience is regularly used to distribute. The marijuana was wrapped in 3.5 to 5 gram packages, which is about a single-serving for a heavy user. In Westhaven, that is usually referred to as a “dub� or $20 worth of weed. But, every town is different. And a small level dealer is not as careful in weighing his portions as an advanced seller. This suspect is likely a novice.

9:22 PM Suspects taken into custody and placed in Holding Cell #4 at the Police Operations Center. Warrants secured against Monroe for Distribution of Cocaine, Possession with Intent to Distribute Marijuana and Possessing a Firearm While Being a Convicted Felon.

9:43 PM Suspects Interviewed. No statements made.

April 7, 2013 9:54 AM An individual named Stacey Mills came to the Police Operations Center wishing to speak to a Vice and Narcotics Detective regarding as assault that occurred the week before involving Devon Monroe.

Mills appeared to have a swollen jaw and was having difficulty speaking to me in a clear voice. We entered the Green Interview Room and I interviewed him/her regarding his/her allegations. I collected from Mills, x-rays of his/her injuries and text messages from his/her phone showing a conversation on March 31, 2013 between Mills and Sherrod.

12:22 PM Based on interview with Stacey Mills, I secured warrants against Devon Monroe for Malicious Wounding and Use of a Firearm in the Commission of a Felony.

May 1, 2013 1:45 Received the lab results on the weapons recovered and suspected drugs recovered.

Reviewed the results and filed them with the court and the State Attorney’s office.

7

May 21, 2013 8:12 AM I went into our automated electronic system, ACES, and procured jail calls using Devon Monroe’s name, SSN, address, and dates of incarceration. Jail calls are automatically transcribed whenever one of the inmates uses his or her personal identification number and are saved for 60 days on ACES.

8

PRELIMINARY HEARING TRANSCRIPT TESTIMONY OF SECURITY OFFICER ADRIAN ALEXIS May 14, 2013 BEING DULY SWORN, THE WITNESS TESTIFIED AS FOLLOWS: ASSISTANT DISTRICT ATTORNEY: Please state your name and occupation.

OFFICER ALEXIS: My name is Adrian Alexis, President of Eagle Security Services.

ASSISTANT DISTRICT ATTORNEY: organization?

When you say President, did you found that

OFFICER ALEXIS: Yes, about five years ago.

ASSISTANT DISTRICT ATTORNEY: business?

How long have you been in the private security

OFFICER ALEXIS: I’ve been in the industry for 23 years, but only with Eagle for five.

ASSISTANT DISTRICT ATTORNEY: As a private security officer, are you a sworn officer in the state of Manchester?

OFFICER ALEXIS: No. I have never been a sworn officer, though I’ve tried to become a police officer twice in the past, when I was younger. About ten to twelve years ago. As a private security officer, I just have to get licensed by the State, and the State regulates us when we are armed security. It gives us certain powers and requires us to have certain certifications.

But, we aren’t ever sworn as law enforcement officers. We cannot wear any law enforcement uniforms or badges or even identify ourselves as police or deputies or anything like that.

ASSISTANT DISTRICT ATTORNEY: So, what are your duties as a private security officer?

OFFICER ALEXIS: Well, its whatever we contract with a particular location to do. For example, we secure apartment complexes, grocery stores, office buildings . . . stuff like that.

And, we contract with them to do certain things.

ASSISTANT DISTRICT ATTORNEY: Okay, so let’s turn more toward the incident at hand.

On March 31, 2013, you were working as security at the West End Apartment Complex, right?

OFFICER ALEXIS: Yes. ASSISTANT DISTRICT ATTORNEY: What duties do you contract to do with West End Apartments?

OFFICER ALEXIS: We are to enforce all state and local laws and to ensure the safety and privacy of the residents of the apartment complex. That’s what our contract says.

9

ASSISTANT DISTRICT ATTORNEY: And, is that what you were doing on March 31, 2013?

OFFICER ALEXIS: Yes. ASSISTANT DISTRICT ATTORNEY: Then, did you come into contact with a person you now know to be Devon Monroe on March 31st?

OFFICER ALEXIS: Yes. Officer Ellis and I were on duty on a twelve hour, noon to midnight shift, and we were patrolling the complex in one of my vehicles. I can’t remember if it was one of the Suburbans or the Impala, but I was driving and Officer Ellis was in the passenger seat.

ASSISTANT DISTRICT ATTORNEY: Okay. When and how did you come into contact with the Defendant?

OFFICER ALEXIS: At about 8:00, we got a call from one of the residents that there was a fight going on outside his/her window. He/she stated that he/she could hear yelling and cursing, and that it appeared to be four people, but only three really involved in the fight.

ASSISTANT DISTRICT ATTORNEY: Did you proceed to that area?

OFFICER ALEXIS: Yeah. I activated the lights on my vehicle and drove over to that area of the complex. The complex is quite large, so it took a couple of minutes to get over there. We were at the front of the complex near Raby Rd, and the fight occurred near a cul-de-sac near the back of the complex. So, we got there at about 8:07.

ASSISTANT DISTRICT ATTORNEY: What did you see when you got there?

OFFICER ALEXIS: Really, we didn’t see anything out of the ordinary when we first arrived.

The area was quiet, so we assumed the conflict was over. We both got out of the car and made contact with the person that made the phone call to us.

ASSISTANT DISTRICT ATTORNEY: Who was that person?

OFFICER ALEXIS: That was . . . let me check my notes . . . Angel Rodriguez. He/she told us that about a minute or so after he/she made the call to us, one of the individuals was knocked to the ground and another individual got on top of that person. Then, one of the other individuals ran over and hit the person on top with something that looked like a stick or a small pole. He/she said it looked gray and was about 4-6 inches long.

ASSISTANT DISTRICT ATTORNEY: What did you do after speaking with Angel Rodriguez?

OFFICER ALEXIS: We went back to the car and began to fill out an incident report for the apartment complex records. It was about 8:17 at that time. While we were sitting there, we saw a tan or brown four dour vehicle pull up in front of one of the apartments in front of where we

10

parked. It had two people in it, and we noticed it because of how slow it was driving and it seemed to be looking around.

ASSISTANT DISTRICT ATTORNEY: What did you do then?

OFFICER ALEXIS: We just watched for a few seconds. Then I started our vehicle, and kind of drove past them on the driver’s side to see what they would do. When I drove beside them, the driver, who was Sherrod, looked over at us and turned away quickly; and, the passenger, who was Monroe, started making some movements towards the floor of the passenger side as if he/she was stuffing something under the seat or into a bag. Monroe would not look over at us.

At that point, I pulled in front of them and parked the vehicle and waited there. About 30 seconds later, Monroe got out of the vehicle and started walking away from the vehicle and away from us. At that point, I got out and asked him/her what he/she was doing there on the property.

ASSISTANT DISTRICT ATTORNEY: Had you seen him/her on the property before?

OFFICER ALEXIS: No, and I wanted to see if he/she lived there. It did not appear he/she was making any effort to make any contact with one of the apartment complexes, so I wanted to question him/her for trespassing.

ASSISTANT DISTRICT ATTORNEY: What did Monroe do when you called out to him/her?

OFFICER ALEXIS: Monroe stopped, and I believe Officer Ellis then got out of the vehicle to make contact with Sherrod. I walked over to Monroe and I could smell an odor of marijuana on him/her from about 10 feet away. First, I asked who he/she was, and he/she told me. Then I asked whether he/she lived here, and he/she said “no,” and that “he/she was just visiting his/her friend who lives out here,” while motioning towards Sherrod. He/she had a computer bag on his/her shoulder at this time, and I started to wonder about that bag. But, I let it go for the moment.

I then asked whether he/she had anything illegal on him/her. And, he/she didn’t say anything but went into his/her front pocket, what I would call the little watch pocket on the front of your jeans, and started to pull something out. I stopped him/her and said “let me do that,” and I went and pulled out a plastic baggie containing a green leafy substance. I asked “what is this” and he/she said “its marijuana.” Then he/she said he/she was a convicted felon, and could I give him/her a break.

ASSISTANT DISTRICT ATTORNEY: What did you do next?

OFFICER ALEXIS: At that point, I told Monroe to come over towards my vehicle, and told him/her to put the bag that was on his/her shoulder near the front tire of my vehicle. I told him/her that I was going to write him/her a summons for possession of marijuana. And, I called into the police that we had a suspect for possession of marijuana. At that point, Officer Ellis was standing with Sherrod toward the back of our vehicle, the front of theirs, and Monroe was standing outside the driver’s side of my vehicle, a little in the street.

ASSISTANT DISTRICT ATTORNEY: Were you able to write the summons?

11

OFFICER ALEXIS: No, because every time I would get into the car to begin writing the summons, Monroe would step a little closer to that bag. And, I kept telling him/her to leave the bag alone. After about three times of this, I got a little worried about my safety and I got out and said “what’s so important about this bag?” And, I reached down to pick it up, and Monroe reached down at the same time. So, we both had our hands on the strap of the bag, and kind of tussled with it for a couple of seconds. At that time, there were other people arriving around us, and yelled over to them that this was police harassment and that somebody needs to come get my bag before I take him/her to jail and I steal his/her property. That kind of foolishness.

ASSISTANT DISTRICT ATTORNEY: About how many people were around?

OFFICER ALEXIS: About 5-6. It appeared he knew at least two of them because those were the two he was telling to come get his/her bag. And they were yelling at me to let Monroe go, and I told them not to come any closer or they would get pepper-sprayed.

ASSISTANT DISTRICT ATTORNEY: Were you eventually able to get the bag?

OFFICER ALEXIS: Yes. Eventually Monroe let the bag go, and when he/she did he/she yelled out an expletive. I then took the bag and set it on the hood of my vehicle and it was kind of an accordion bag, so as I did that, it opened up and I could see the shiny barrel of a handgun.

ASSISTANT DISTRICT ATTORNEY: How did you know it was a handgun?

OFFICER ALEXIS: I’ve been around guns all my life—ever since I was 12. I was given my first pistol when I was 13, which I still have. And, I carry a .45 caliber myself while on duty, and own about 8 handguns and shotguns and rifles. I could tell immediately what it was.

ASSISTANT DISTRICT ATTORNEY: What did you do at this time?

OFFICER ALEXIS: At that time, I put handcuffs on Monroe and placed him/her in the back of my vehicle. As I was doing that, I told Officer Ellis that he/she should check to see if Sherrod had any weapons. And, as I was putting Monroe in my vehicle Officer Ellis yelled out to me to help him/her because Sherrod was trying to run away. As I turned toward them, I could see the brown handle of a gun sticking out of Sherrod’s waist, and I ran over and we put him/her on the hood of their vehicle and put handcuffs on him/her as well. Officer Ellis then placed Sherrod in the back of our vehicle with Monroe. At that time, I opened up the passenger side of their vehicle, and I could see right there on the passenger side floor two brown paper bags. I could smell the odor of marijuana when I opened the car do, so I opened one of the paper bags and I saw several baggies of a green leafy substance. I collected them, and called the police again to let them know what else I had found. Nothing but trash was in the other bag.

ASSISTANT DISTRICT ATTORNEY: Thank You. Please answer any questions defense counsel or the court may have.

12

CROSS EXAMINATION DEFENSE COUNSEL: Officer Alexis, you were writing a summons at some point for Mr./Ms. Monroe?

OFFICER ALEXIS: Yes. I am allowed to write a summons for misdemeanors committed in my presence.

DEFENSE COUNSEL: How do you get blank summonses?

OFFICER ALEXIS: When you first become a license private security agency, you are given a letter from the Manchester State Police that authorizes you to purchase and use summonses.

And, you take that letter along with your payment and send it to an organization call Print-Tech, and they will send copies of blank summonses.

DEFENSE COUNSEL: And, you stated that you had tried to become a police officer in the past, correct?

OFFICER ALEXIS: Yes. I had taken the examinations twice before, but was not able to get onto the department because of my inability to pass some of the written portions of the exams. I was working two jobs at the time, and was never able to study long enough to prepare.

DEFENSE COUNSEL: So, do you know any of the people that are on the police department now?

OFFICER ALEXIS: Yes. DEFENSE COUNSEL: Do you know Detective Davis?

OFFICER ALEXIS: Yes. I know him/her. He/she would teach some of the classes at some of the private security conventions that we would have for any new regulations that were enacted for us by the legislature or inform us of any new developments in local laws that might affect what we could and could not do as private security officers. So I knew him/her from that as well as my attempts to join the police department.

DEFENSE COUNSEL: Thank You. That’s all I have judge.

13

CITIZEN COMPLAINT Form PD 3272

Complainant Name: Stacey R. Mills

DOI: 3/31/13

Age: 28

DOB: 07/27/84

Complainant Address: ________________ City: _________ State: ______ Zip: _______ Complaint Given To: Detective Marion Davis On March 31, I was out West End with my homeboy Julio and we came up on Cam and Devon. We was just out there chilling and they was talking about “square up, square up.” We was like nah, but they kept getting in our faces trying to fight. So I started to walk away and we ended up in this yard in front an apartment on Marlfield Drive. Cam and Devon was directly behind me and Mark was a little bit further back. I stopped and turned around and told Cam, “you know you don’t want it me, Cam.” And, I looked and Cam had a bottle in his/her hand.

So, I said, put the bottle down and we can fight.

As soon as Cam put the bottle down, I snuck him/her in the face with a smack. He/she then came up and swung at me, but missed and then fell forward toward me a little bit. I tried to back up, but he/she then grabbed me around the waist and tackled me. I fell back onto the grass and was kind of disoriented for a minute because I hit my head. Then I punched Cam in the top of the head, but I didn’t hit him/her square. I kinda missed. But, I turned Cam over and tried to get up, but as I tried to get up, I could like feel or hear somebody coming up beside me. That’s when I turned to my right and saw Devon coming over to me with a gun in his/her hand. At first I thought he/she was going to shoot me, so I kinda closed my eyes and as soon as I closed my eyes, I felt him/her hit me with the gun.

Then, I fell on top of Cam and then rolled on my back. When I rolled over I started to choke on my own blood, so I turned over on my stomach real fast and the blood was rushing out of my mouth. Then, I caught one of my teeth falling out of my mouth. I could hear Cam get up and then Cam and Devon was standing up talking about “yeah, what now.” Then, Julio came over to me and said “come on, let’s run they got guns.” That’s when we got up and we ran back toward Julio’s car.

I declare under penalty of perjury that the foregoing is true and correct. Executed on April 7, 2013. _______/s/_________________________ Name

____________________ Date

14

DEPOSITION OF OFFICER CAL ELLIS BEING DULY SWORN, THE WITNESS TESTIFIED AS FOLLOWS: DEFENSE COUNSEL: Officer Ellis, you work with Eagle Security Services?

ELLIS: Yes, sir.

DEFENSE COUNSEL: What do you do with that company?

ELLIS: I am a licensed armed security officer. And, for the three years I’ve been there, I’ve been assigned to various apartment complexes that we contract with. I’ve been with them my whole career as a licensed security officer.

DEFENSE COUNSEL: West End is one of those complexes?

ELLIS: Yes, sir.

DEFENSE COUNSEL: Okay, I want to turn to March 31 of this year. You came into contact with Cameron Sherrod and Devon Monroe that day?

ELLIS: Yes, sir.

DEFENSE COUNSEL: When did you first make contact with them?

ELLIS: We made contact with them about 8pm that day. But, earlier that day, Westhaven Police came by to ask us to keep an eye out for two individuals that ran towards the apartment complex after a drug deal a few streets over.

DEFENSE COUNSEL: Who from WPD came to see you?

ELLIS: It was Detective Davis. He/she came to see us and told us that he and another detective had observed a hand-to-hand drug transaction in the late-morning or early afternoon over by Fontaine High School which is nearby West End. Detective Davis told us that three of the suspects had run through the woods on the border of the West End complex and that we might come into contact with them at some point during the day. He/she told us that one of them was wearing a dark hoodie and had a brown or black satchel with him/her. He/she described the suspect as being in his/her late 20s, also.

DEFENSE COUNSEL: Did Detective Davis ask or tell you to do anything else with respect to the suspects?

ELLIS: Yes, Detective Davis told us to keep an eye out, and if we saw anyone resembling those suspects to give WPD a call and to ask for him/her. He/she also asked us to find out if the suspects lived in the area and to see if we could determine whether they were engaged in any drug activity in the area.

15

DEFENSE COUNSEL: Did he tell you specifically how to do that?

ELLIS: No, but there are only so many ways to find those things out. You can either ask other people, or you ask the suspects themselves. So, when we saw them or what we thought was them, that was our opportunity to go ahead and stop them and talk to them a little bit.

DEFENSE COUNSEL: What made you think the people you saw were the suspects that Davis had mentioned earlier?

ELLIS: Well, once we saw that satchel, we had a pretty good idea that was them. That’s when Officer Alexis said “Yahtzee,” and he/she got out of the car to go ahead and stop Monroe.

DEFENSE COUNSEL: Had you all already discussed what you would do if and when you saw the suspects?

ELLIS: No, nothing beyond what Detective Davis asked us to do. That’s the way we usually handle it.

DEFENSE COUNSEL: What do you mean by that?

ELLIS: I mean that WPD often comes by to let us know what’s going on in the area and asks us whether we’ve seen anything. And, they often give us descriptions of the individuals that they are pursuing, and asks us to let them know if we encounter the suspects. I can’t think of any other time that we’ve actually had an opportunity to actually encounter anyone that they were looking for, though. Also, Officer Alexis keeps a police scanner and we often hear about what is going on, even if the police don’t come by to ask us to do anything.

DEFENSE COUNSEL: Okay, I want to ask you more specifically about March 31. What happened?

ELLIS: Well, after we were called to Marlfield Drive regarding a fight in one of the residents’ yard, we got information from that resident about what he/she saw. Then, we sat in the Impala and Officer Alexis began to write out the incident report. That’s when we saw the suspects pull up in a vehicle really slowly. So, we just sat there and watched them for a little while and they didn’t move from the car. So, we decided to ride by them, and when we rode by, the person we later identified as Sherrod was in the driver’s seat and clearly trying to avoid making eye contact with me, and the person we later identified as Monroe was sitting in the passenger seat making movements toward the floor of the passenger side with both arms. I don’t know what he/she was doing, but it was suspicious. We then pulled in front of them and that’s when Monroe got out of the car with the satchel on his/her arm. Like I said, Alexis said “Yahtzee,” and before I could even turn my head toward him/her, he/she was out of the vehicle and called over to Monroe to stop.

DEFENSE COUNSEL: What did you do?

16

ELLIS: I got out of the car and stood over by the driver, and told him/her to keep his/her hands where I could see.

DEFENSE COUNSEL: Could you hear the conversation between Alexis and Monroe?

ELLIS: No, not until later.

DEFENSE COUNSEL: Were you having any conversation with Sherrod.

ELLIS: No, not really. I just kind of kept my head on a swivel between Sherrod and Monroe for safety purposes. When I saw that Officer Alexis had gotten something out of Monroe’s pocket, though, I went ahead and asked Sherrod to step out of the vehicle. We stood between the back of our vehicle and the front of theirs while Alexis got back into the Impala to write out a summons.

DEFENSE COUNSEL: Did you ever ask to search Sherrod?

ELLIS: No, not until Officer Alexis got out and kept telling Monroe to stay away from the bag that was by our front driver’s side tire. He/she told Monroe this about 3-4 times. I just really kept my eye on Sherrod.

DEFENSE COUNSEL: What happened next?

ELLIS: Eventually, Alexis grabbed the bag and asked Monroe “what’s so important about this bag?” And, Monroe was speaking to some people that started to gather around, but I couldn’t hear what they were saying.

DEFENSE COUNSEL: What did you see Alexis do with the bag?

ELLIS: He laid it on the hood and looked into it, and said “there’s a gun in here. Is it yours?”

Then Monroe said something like “come on, man” or something like that. I couldn’t hear anything else he/she said because Alexis told him to turn around and put handcuffs on him/her.

Then, Alexis told me to search Sherrod to see if he/she had any weapons.

DEFENSE COUNSEL: Did you search Sherrod?

ELLIS: Not immediately. I just looked over to Sherrod and he/she started to blade his/her body away from me. It was at that time that a gust of wind came along, and I could see a hard, gunshaped object that was pressed between his/her shirt and his/her body. I started to walk towards Sherrod and that’s when he/she started to run. I then grabbed his/her right arm and tried to spin him/her back toward me. That’s when I got a clear shot of the gun in his/her waist and called on Officer Alexis for help. I eventually recovered the gun but didn’t otherwise search Sherrod.

DEFENSE COUNSEL: Okay. Thank you.

ELLIS: No problem.

17

PRELIMINARY HEARING TRANSCRIPT TESTIMONY OF CAMERON SHERROD May 14, 2013 BEING DULY SWORN, THE WITNESS TESTIFIED AS FOLLOWS: DEFENSE COUNSEL: State your name, please?

SHERROD: Cameron Sherrod.

DEFENSE COUNSEL: Do you know Devon Monroe?

SHERROD: Yes. We’re best friends and we have been since we were little. I probably know him/her as good as anybody.

DEFENSE COUNSEL: Were you with him/her on March 31st of this year?

SHERROD: Yes. We are together all the time, but we definitely were together that day.

DEFENSE COUNSEL: Does that day stand out to you for some reason?

SHERROD: Yes. That was the day Devon got arrested, and it was partially my fault.

DEFENSE COUNSEL: How was it your fault?

SHERROD: Well, let me start from the beginning. A few days before Devon got arrested, I bought a gun from Emerald’s Pawn Shop. And, I had gotten up the morning of the 31 st and was going to go to the range to shoot it. I had my other gun with me, so I couldn’t put the second gun in my holster. So, I just left it on the back seat of my car. And, after I was driving around in the car, I got a little hot, so I took off my sweatshirt and threw it in the backseat, too. It apparently covered up the gun that was on the backseat. So, after I ran a few errands, I got a call from Devon to pick him/her up. So, I did.

DEFENSE COUNSEL: What did you do after you picked Devon up?

SHERROD: Well, I told Devon that I had to run another errand. Which, really, I had to go pick up some money from Stacey Mills who owed me some money from a few weeks ago. So, we parked at my house. And, I live in the West End apartments on Marlfield Drive. So, we parked at my house and walked over by Fontaine High School where I was going to meet Stacey.

DEFENSE COUNSEL: What happened when you got there?

SHERROD: Well, we stood around for a while waiting on Stacey. And, Devon had that bag with him/her still. I don’t know why. But, anyway, Stacey finally got there and got out of a car where somebody else I don’t know was driving. Stacey got out and came over to us, and said he/she didn’t have my money. I told him/her that he/she better get it, so he/she went back to the 18

car and spoke to the person driving. Then, we heard someone say “police, freeze.” And, we just took off running back toward my house.

DEFENSE COUNSEL: What happened when you got back to your house?

SHERROD: We got in my car and just rode around. Me and Stacey was texting back and forth with me asking for my money and saying that he/she was trying to be funny about my money and I didn’t appreciate it. So, we talking trash or whatever, but me and Devon was just riding around, you know, going to stores and stuff like that.

DEFENSE COUNSEL: Where was that gun that was on your backseat while you all were riding around?

SHERROD: When we went to the first store, I went to put my sweatshirt back on before we got out of the car. That’s when I saw, “oh shoot,” that the gun was still on the seat. So, because I didn’t want to leave the gun on the seat while we were in the store, I was trying to find somewhere to put it. I saw that Devon had left his/her bag in the floor of the backseat. So, when I seen that, I just put the gun in his/her bag.

DEFENSE COUNSEL: Did you tell him/her that you put the gun there?

SHERROD: No. DEFENSE COUNSEL: Why not?

SHERROD: Really, I just forgot. So, when he/she ended up getting caught with the gun, I felt real bad. Real bad.

DEFENSE COUNSEL: Did you end up getting into a fight with Stacey later on?

SHERROD: Oh, yeah.

DEFENSE COUNSEL: Tell the court about that.

SHERROD: Well, as I had said earlier, Stacey kept texting me about they were going to “f” us up, and all that noise. So, I finally said “come on, then.” So, they showed up at my house, Stacey and some other person. So, me and Devon came prepared. I had a bottle in my hand, and Devon I think had a belt in his/her hand and had the buckle of the belt hanging. It was a silver buckle. Stacey and the other person actually walked up, I don’t know if they parked somewhere else or what. When they walked up, we just started arguing and we were actually in my neighbor’s yard, not mine. We just stood there arguing and then, I was like “let’s just squash it.”

And, I put the bottle down. As soon as I did that, Stacey swung on me.

DEFENSE COUNSEL: What were you wearing at that time?

SHERROD: At that time, I just had on a short-sleeve t-shirt.

19

DEFENSE COUNSEL: What was Stacey wearing?

SHERROD: A hoodie.

DEFENSE COUNSEL: Alright, so after Stacey swung on you, what did you do?

SHEROOD: Stacey swung, then I swung. Then, we ended up on the ground. Stacey was swinging at me the whole time.

DEFENSE COUNSEL: Who was on top?

SHERROD: Stacey was on top the whole time. And, while Stacey was on top, he/she was banging my head into the ground and I started to lose consciousness. I think I called for Devon to help me, but that’s the last thing I remember.

DEFENSE COUNSEL: What were you thinking while Stacey was on top of you?

SHERROD: I was thinking Stacey was going to kill me. He/she just kept banging my head into the ground.

DEFENSE COUNSEL: What’s the next thing you remember?

SHERROD: I just remember starting to get up and Stacey and the other dude started running away. Devon was like, “I’m ready to go.” So, I got up and we got in my car to take him/her home. When we got into the car, we got into an argument because I was like “where was you at.” And, Devon was like “I was coming to help you.” But, I was just mad because I felt like I was getting beat up forever, and Devon wasn’t doing nothing. So, after we was arguing for a few minutes, I told Devon “walk home, then.” So, we drove back over to my street and I parked the car. We sat there for a few minutes, and kept arguing and then Devon started to grab his bag and I guess was trying to lock it when I looked over and saw the police riding past us. And then, all of that stuff happened.

DEFENSE COUNSEL: Why did you run from the police earlier?

SHERROD: Where I’m from, police are evil. So, we don’t wait around to be victims—we run.

DEFENSE COUNSEL: Now, what do you know about drugs being in the car.

SHERROD: Honestly, I don’t know anything about those drugs.

DEFENSE COUNSSEL: It’s your car isn’t it.

SHERROD: Yeah, its my car, but I don’t ever lock my car doors. So, I don’t know if somebody put something in there when I was in the house, or what. Also, I let my cousin who I know does deal on the side use my car the day before. So, I suspect that he just left some of his stuff in

20

there. But it wasn’t mine, and I know that Devon didn’t have any weed in the car, just what was on him/her. I do know that.

CROSS EXAMINATION ASSISTANT DISTRICT ATTORNEY: Are you a felon?

SHERROD: No, that’s how I can buy a gun. I know that you can’t have a gun if you are a convicted felon.

ASSISTANT DISTRICT ATTORNEY: Okay. And, you are telling us that you put the gun in Devon’s bag, right?

SHERROD: Yes, that’s what I said.

ASSISTANT DISTRICT ATTORNEY: Did you tell the police this story?

SHERROD: No. Like I said, where I’m from we don’t talk to police.

ASSISTANT DISTRICT ATTORNEY: Did you apologize to Devon?

SHERROD: Yes. I called him/her everyday while he/she was in jail. Matter of fact, Devon told me that I was the only person that called while he/she was in jail, before he/she got bond on, I think it was the 27th of April.

ASSISTANT DISTRICT ATTORNEY: Okay,so you don’t have any explanation for how the marijuana that the security officers found got into your car.

SHERROD: Nope. It’s not my job to explain anything. You’re the prosecution, you have to explain it.

ASSISTANT DISTRICT ATTORNEY: But, you aren’t denying it was in there, correct?

SHERROD: No.

21

Eagle Security Services, LLC West End Townhomes Incident Report

Suspect: TBD

Race: ________

Sex: __________

Age: ________

Security Officer: Senior Officer Adrian Alexis; Officer Cal Ellis Date of Report: March 31, 2013

Date of Incident: March 31, 2013

Name of Witness (if any): Angel Rodriguez Address of Witness: 5385 Marlfield Drive

City: Westhaven

State: Manchester

On March 31, 2013, I was in my bedroom on the second floor of my apartment. I could hear yelling and screaming and cussing, so I looked out of my window to see what was going on.

There were four people in my yard. The two doing the most yelling and screaming at each other were standing facing each other, nearest my living room window which is directly beneath my upstairs bedroom window. They were about 10 feet away from the window and I was almost looking directly down on them from the angle of my window. The other two people were on the sidewalk, towards the curb which is about another 10 feet away from the first two. The two people on the sidewalk weren’t really saying anything, though so I didn’t pay that much attention to them, at first.

After about five minutes of them yelling and screaming, I called the neighborhood security guards. While I was on the phone with them, the two near my window started actually fist fighting, and the one that was wearing a long sleeve hoody fell and the other person that had on a short-sleeve shirt fell on top. They were tussling there for a few minutes and then I turned away for a moment to see what time it was. My clock showed that it was 8:03 p.m. When I turned back to look outside the window, it looked like the person with the hood was on top.

He/she was on top of the other person for what seemed like a longtime and I could hear the person on the bottom sound like he/she was gasping for air. He/she had been yelling and cussing, but I didn’t hear that anymore from anyone—it actually got really quiet. And, it looked like the person on the bottom was trying to get up, but couldn’t because the person on the top looked like he/she kept pushing him/her back down. That’s when I hear the person on top saying “stay down, punk” or something like that. That went on for about 30 seconds.

All of a sudden, I saw one of the people that was standing on the side walk run over to help his/her friend and swing a stick or a pole or something down and hit the person on top in the face. It looked kind of brown, but it was also kind of dark so I’m not sure of the color. But, it wasn’t a very big pole, it was about six inches long. After that I turned away because the way he/she fell after he/she got hit made me think he/she might be dead. He/she got hit really hard.

22

I declare under penalty of perjury that the foregoing is true and correct. Executed on March 31, 2013. _______/s/_________________________ Name

____________________ Date

23

EXHIBIT A MANCHESTER: IN THE CIRCUIT COURT FOR THE CITY OF WESTHAVEN DATE: September 12, 2006 JUDGE: Honorable S. E. Anthony

STATE OF MANCHESTER v.

Case No. CR06-1239

DEVON MONROE, Defendant.

TRIAL AND SENTENCING ORDER COMES this day the State of Manchester, through its attorney, Eugene A. Stephens, and the Defendant Devon Monroe and his/her attorney, James K. Purvis, after the Defendant having been found guilty by the court of the following offense: DOO

Offense

Code Section

DOC

Case No.

4/23/06

Robbery

18.2-51

9/12/06

CR06-1239

Was hereby sentenced to TEN (10) YEARS in the Manchester Department of Corrections. The Court shall suspend FIVE (5) YEARS of that sentence for a period of five years, conditioned upon the Defendant being of uniform good behavior while in custody and upon the Defendant’s compliance with the terms of supervised probation for FIVE (5) YEARS upon his release.

IT IS SO ORDERED.

_______/s/_____________________ Hon. S. E. Anthony, Judge Jefferson Province: September 12, 2006 24

EXHIBIT B TRANSCRIPT OF INTERVIEW WITH STACEY MILLS April 7, 9:54 A. M. Present: Detective Davis and Stacey Mills DAVIS: Alright, Stacey. I want to ask you some questions about your complaint against Devon Monroe.

MILLS: Yes, sir.

DAVIS: Now, why were you and Julio out West End? MILLS: We was just out there chilling. Just driving around.

DAVIS: Let’s stop, Stacey. You know there is more to it than that, don’t you?

MILLS: I don’t know what you talking about?

DAVIS: Stacey, I want to help you, do you understand?

MILLS: Yes, sir.

DAVIS: And, for me to help you, you’ve got to tell me the whole truth, okay?

MILLS: Yes, sir.

DAVIS: And, I know you might be a little bit scared, but we’ve got to have the truth. Especially, if we want to get Devon for what he/she deserves, we have you be a truthful witness, okay.

MILLS: No, sir.

DAVIS: No, sir?

MILLS: I mean, yes sir.

DAVIS: Yes, sir. Okay, then. Why were you out West End? MILLS: Aight. We had gotten into it some stuff with Cam and Devon earlier in the day. I was with my homeboy Mark earlier and we met up with Cam and Devon over by Fontaine.

DAVIS: Fontaine high school?

MILLS: Yes, sir. And we met up to . . . I’m gonna be honest . . . we met up to buy a bag from them.

DAVIS: A bag of what?

MILLS: A bag of crack. And when we got there, we had made the exchange or whatever, and I brought the bag over to Mark cause Mark was still in the car.

DAVIS: Why were you the one that got out of the car instead of Mark?

25

MILLS: Because I had to earn my stripes, I guess. This was the first time I bought anything like that. I mean I had bought weed before, but not crack. So, Mark said “if I wanted to get some of it, I had to get out and buy it.” So, when I went back to Mark’s car, that’s when we heard the police yell “freeze.” So, I was like “oh, snap,” and I started to run back through the woods with Cam and Devon.

DAVIS: Where did y’all go?

MILLS: I don’t know where they went cause we ran separate ways once we got out of the woods. It’s the woods right by West End, though. I ended up running like two streets over where these trucks and businesses was. Then, I ended up calling Julio to come pick me up.

DAVIS: Was this night time or day time?

MILLS: It was day time.

DAVIS: So, you went back over there to score again?

MILLS: Nah. We had actually gotten into it over the phone. Cam started texting me, talking about we set them up, and all this crap. And, I’m like, “if we set you up, why would I run with y’all.” And, if we set them up, why Mark was the only one that got arrested. I mean it was just stupid. But, Cam kept talking ish and sending text messages. So, I was like we be out there later if y’all want to handle it.

DAVIS: So, you were making threats to them?

MILLS: I mean, I wouldn’t say threats, but was definitely talking trash. I wasn’t gonna let Cam talk all that mess and not say something back. I mean, for real. I ain’t that one to be played with.

DAVIS: So, who started the fight?

MILLS: They started it. Yeah, me and Juan came over there and me and Cam was gonna fight. But, when I got there I was like, man I already just avoided getting arrested once today, so let me carry my butt home. But, when we got there, Cam and Devon was standing out in this yard, talking about “what now.” Cam had a bottle in his/her hand and Devon had something in his/her hand that I couldn’t see, at first.

DAVIS: Alright, the last thing I want to ask you about is did you ever see Devon with a gun?

MILLS: Yes! That’s what he/she hit me with.

DAVIS: Now, I thought your eyes were closed?

MILLS: Nah. I closed my eyes after I saw the gun. I saw the silver barrel and everything. And, I got my ex-rays right here. My jaw is swollen and everything.

DAVIS: Alright. Can I have these?

MILLS: Yeah. So, what’s going to happen now?

DAVIS: Well, we’re going to take out some charges against Devon. Because you told me the truth, we aren’t going to take any charges against you, yet. But, you better keep on telling me what I need to know.

If you do, I’ll talk to the DA and keep you out of jail.

26

MILLS: Thanks. That’s what I was hoping for.

Tape Ended. Transcript prepared by Det. Davis.

27

EXHIBIT C

Eagle Security Services, LLC West End Townhomes Incident Report

Suspect: Devon Monroe

Race: ________

Sex: __________

Age: ________

Security Officer: Senior Officer Adrian Alexis Date of Report: March 31, 2013

Date of Incident: March 31, 2013

Brief Summary of Case: On March 31, 2013, I and Officer Ellis made contact with Devon Monroe after responding to the area of an alleged fight on Marlfield Drive. The suspect carried a brownish computer bag on his shoulder and smelled of marijuana. I asked the suspect whether he had anything illegal on his person, and he started to hand me a bag of marijuana from his right front pocket. Before he got the bag all the way out of his pocket, I told him I would get it and reached in and pulled the bag the rest of the way out of his pocket. I began to write the suspect a summons for possession of marijuana when he kept going towards the bag that I had asked him to leave on the ground. For officer safety, I picked up the bag and looked inside where I discovered a silver and black firearm. The suspect had already told me that he was a convicted felon. Searched the vehicle that suspect was in when we first made contact and found in the passenger side floorboard, where the suspect had been sitting, several individually wrapped packages of marijuana.

Contacted Westhaven Police Department.

Evidence Collected: Single bag of marijuana; several individualized packages of marijuana; silver barreled handgun with black handle; black barreled handgun with brown handle.

Statement by Suspect: That he was a convicted felon and he cursed when I discovered the weapon in his bag.

Scientific Evidence: Field Test by Officer Alexis on the green leafy substance from the suspect’s pocket is marijuana.

Addendum to Incident Report Date of Addendum: June 12, 2013 Statement by Suspect: At time of arrest, suspect stated that he had a gun in his/her bag for protection because its tough on the streets.

28

EXHIBIT D Detective Marion R. Davis Westhaven Police Department Vice and Narcotics Division 38 Police Plaza Westhaven, Manchester 81802 (818) 679 - 3482 EDUCATION: University of the State, Oakville, Manchester Bachelor of Science Degree, Chemistry and Biology, 1997 Westhaven Police Academy, Westhaven, Mancheser Valedictorian, 1998 Detective Training School, Westhaven, Manchester Vice and Narcotics Unit, 2003 EXPERIENCE: •

Over 120 Murder and Serious Assault Cases Worked and Resolved

•

Over 100 Narcotics Investigations Involving Distribution of Marijuana and Schedule I and II Narcotics

•

Testified in over 350 misdemeanor and felony cases

•

Ninety Percent (90%) conviction rate

•

Instructor on Constitutional Law and Police Procedures for Westhaven Community College, 2009 – Present

•

Instructor at V.I.P. Security Officer Convention for several courses, including: o

Constitutional Law

o

Writing Summonses and Making Arrests

o

Legislative Regulations of the Security Industry

29

EXHIBIT E

30

EXHIBIT F(1)

31

EXHIBIT F(2)

32

EXHIBIT G(1)

33

EXHIBIT G(2)

34

EXHIBIT H

EXHIBIT I 35

EXHIBIT J 36

EXHIBIT K 37

38

39

40

41

EXHIBIT L MANCHESTER DEPARTMENT OF FORENSIC SCIENCE NARCOTICS AND FIREARMS DIVISION 3822 RICHMOND ROAD CAPITAL CITY, MANCHESTER

July 12, 2013 Tel. No.: TO:

(818) 547-3572 (818) 547-3578

DETECTIVE MARION DAVIS WESTHAVEN POLICE DEPARTMENT 38 POLICE PLAZA WESTHAVEN, MANCHESTER 81802 FS Lab # M13-30000

Your Case #:

CR13-2255

Victim(s):

----

Suspect(s):

Devon Monroe

Evidence Submitted By:

Certified Mail – 1234-2387-4438-2837

Date Received:

04/10/13

Sealed packaging which contained: Item 1

One (1) plastic baggie containing a green leafy substance

Item 2

One (1) plastic baggie containing approximately ten (10) rock-like, off-white items

Item 3

One (1) manila envelope containing ten (1) plastic baggies, each containing a green leafy substance

RESULTS: Item 1

3.5 grams of marijuana

Item 2

1 ounce of crack cocaine

Item 3

1.8 ounces of marijuana

Attest: I certify that I performed the above analysis or examination as an employee of the Department of Forensic Sciences and that the above is an accurate record of the results and interpretations of that analysis and examination, and that we keep this certificate in the regular course of Department business. ____________/s/__________ Dr. James R. Rye Forensic Scientist JRR

42

EXHIBIT M MANCHESTER DEPARTMENT OF FORENSIC SCIENCE NARCOTICS AND FIREARMS DIVISION 3822 RICHMOND ROAD CAPITAL CITY, MANCHESTER

July 12, 2013 Tel. No.: TO:

(818) 547-3572 (818) 547-3578

DETECTIVE MARION DAVIS WESTHAVEN POLICE DEPARTMENT 38 POLICE PLAZA WESTHAVEN, MANCHESTER 81802 FS Lab # M13-30001

Your Case #:

CR13-2255

Victim(s): Suspect(s):

Devon Monroe

Evidence Submitted By:

Certified Mail – 1234-2387-4438-2838

Date Received:

04/10/13

Sealed packaging which contained: Item 1

One (1) Reveler Model .45 caliber pistol with silver barrel and black grip, 2.2 lbs.

Item 2

One (1) empty cartridge case

RESULTS: Item 1 was test-fired and determined to be a fully operable pistol capable of firing .45 caliber bullets. Item 1 was also checked for fingerprints and none were found. Item 1 was tested for DNA and the following results DNA matches were found on the gun: Stacey Mills, SSN: 821-53-3827 ID No.: 12389 6445 Ridge Rd. Westhaven, Manchester Attest: I certify that I performed the above analysis or examination as an employee of the Department of Forensic Sciences and that the above is an accurate record of the results and interpretations of that analysis and examination, and that we keep this certificate in the regular course of Department business. ____________/s/__________ Dr. Carmen L. Garcia Forensic Scientist CLG

43

EXHIBIT N INMATE NAME: DEVON MONROE PIN#: 7G23849 JAIL CALL JAIL CALL 18533166 Total time on tape 00:03:47 (Automatic Transcription begins 00:00:17) Information from recording: Date: 2013/4/12, Time: 16:43:27 (Recorded calling directions: Please enter your PIN) (PIN entered by inmate caller) RECORDING: Hello, you have a prepaid call from: CALLER: D-Mo RECORDING: Please hold to continue your conversation. All calls from Westhaven City Jail are recorded.

CALLER: Hello?

RECIPIENT: Hello.

CALLER: Cam? RECIPIENT: Yeah, this me. What’s up, you alright?

CALLER: Yeah, I’m making it. Man, what the hell happened?

RECIPIENT: I don’t even know. I’ve been going crazy ever since you got locked up. I’m like “what the f***?” I can’t even believe it. We went from just chilling to some ol’ bull, man.

CALLER: I know. I’m just like, bump it. I got to get out of here. I just came home, I ain’t trying to see central booking.

RECIPIENT: Yeah, yeah. I know. That ol’ rental cop should’ve just went on and mind their business. Fake ass, wannabe cop. They really ain’t have no business stopping us, yo. I been talking to my cousin who got locked up, and he told me that’s a violation of our rights. We won’t doing nothing, so they can’t stop us, for real, for real.

CALLER: That’s what I’m saying. My lawyer said they gonna fight that junk that was in my bag, or whatever. But I’m like I don’t even know. I ain’t gonna get my hope up, you know what I’m saying?

RECIPIENT: Yeah, you just got to keep the faith, man. You got to. I got to. I been crying and sh**, thinking about you being locked up, man. You was doing so good. We out here just trying to get in where we fit in, and we always get the short end of the stick. I’m tired of this, man.

44

CALLER: You tired? I’m tired. I’ll holla at you later, alright?

RECIPIENT: Hold up. Before you go, we got a story that I’m gonna run by everybody. They got to prove you knew it was in there, right?

CALLER: Yeah.

RECIPIENT: Alright, then. It’s my gun, so how they gonna prove that?

CALLER: I don’t know. I guess cause they found it on me. Man, that was stupid for me having it.

RECIPIENT: No, no, no. You not hearing what I’m saying. If it’s registered to me, all we got to prove is that you didn’t know it was in there.

CALLER: Oh, you right.

RECIPIENT: Right. So, I’m gonna get it started, and make sure everybody got the same story.

You not knowing goes a long way.

CALLER: Right. Cause ain’t no murders or robberies on it or nothing. And my prints ain’t on it, either.

RECIPIENT: Right. So, you didn’t know I put it in your bag. Understand?

CALLER: I got you, now. That’s what’s up. Thank you, God. I need this so bad. I can’t be in here no more.

RECIPIENT: Alright. I’m gonna write you a letter once I got it all straight. Cause I know they listening. Just be easy, until you hear from me.

CALLER: Haha. Yeah, you right. Alright. Thanks, yo.

RECIPIENT: Alright. Peace.

CALLER: Peace.

(Call Ends).

45

EXHIBIT O

STATE OF MANCHESTER DEPARTMENT OF CORRECTIONS CRIMINAL HISTORY REPORT FOR MILLS, STACEY R.

.

SSN:

821-53-3827

Race:

Multicultural

DOB: 7/27/1984 Last Known Address:

6445 Ridge Rd. Westhaven, Manchester

NO PHOTO AVAILABLE

Family Background:

Unknown

History of Drug Abuse: None Previous Convictions Case No. Date of Arrest

Date of Conviction

Crime of Conviction

CR05-0034

January 22, 2005

February 3, 2005

Poss. Cocaine

First Offender

CR07-0213

June 3, 2007

September 22, 2007

Aggravated Assault

2 yrs. Prison

CR07-0213

June 3, 2007

September 22, 2007

Grand Larceny (Narc)

18 mos. Jail

CR09-0111

May 22, 2009

August 19, 2009

Poss. Marijuana

30 days susp.

Juvenile Arrests and Convictions Case No. Date of Arrest

Disposition

2000-00003j

March 24, 2001

Assault and Battery (M)

2001-0027j

March 27, 2001

Abusive Language/Threats (M)

46

Sentence

EXHIBIT P

Sales Receipt Emerald’s Pawn Shop – “Value for Value”

Date: 3/28/2013 INVOICE # 272 Cameron Sherrod 5387 Marlfield Drive Westhaven, Manchester 818-283-8373

TO

Salesperson

Job

Shipping Method

Shipping Terms

Delivery Date

Payment Terms

Due Date

May “Emerald” Jones

Associate

In-Store Purchase

N/A

3/28/13

$250.00 COD

3/28/13

Qty

Item #

Description

1

.45 Caliber Pistol

Reveler – Silver

Unit Price

Discount $250.00

Line Total N/A

Total Discount

$250.00

N/A Subtotal

$250.00

Sales Tax

28.27

Total

$278.27

Make all checks payable to Emerald’s Pawn Shop Thank you for your business!

Emerald’s Pawn Shop 3892 54th Street, Westhaven, Manchester Phone 818-112-3899 Fax 818-744-8913 valueforvalue@emerald’s.com

47

EXHIBIT Q(1)

48

EXHIBIT Q(2) 49

50

EXHIBIT R

51

RELEVANT STATE STATUTES Article 9 – Ancillary Law Enforcement Officers and Licensed Security Officers § 9.1-138. Definitions.

In addition to the definitions set forth in § 9.1-101, as used in this article, unless the context requires a different meaning: "Alarm respondent" means an individual who responds to the signal of an alarm for the purpose of detecting an intrusion of the home, business or property of the end user.

"Armed" means a private security registrant who carries or has immediate access to a firearm in the performance of his duties.

"Armed security officer" means a natural person employed to (i) safeguard and protect persons and property or (ii) deter theft, loss, or concealment of any tangible or intangible personal property on the premises he is contracted to protect, and who carries or has access to a firearm in the performance of his duties.

"Armored car personnel" means persons who transport or offer to transport under armed security from one place to another, money, negotiable instruments or other valuables in a specially equipped motor vehicle with a high degree of security and certainty of delivery.

"Business advertising material" means display advertisements in telephone directories, letterhead, business cards, local newspaper advertising and contracts.

"Central station dispatcher" means an individual who monitors burglar alarm signal devices, burglar alarms or any other electrical, mechanical or electronic device used (i) to prevent or detect burglary, theft, shoplifting, pilferage or similar losses; (ii) to prevent or detect intrusion; or (iii) primarily to summon aid for other emergencies.

"Certification" means the method of regulation indicating that qualified persons have met the minimum requirements as private security services training schools, private security services instructors, compliance agents, or certified detector canine handler examiners.

"Compliance agent" means an individual who owns or is employed by a licensed private security services business to ensure the compliance of the private security services business with this title.

"Computer or digital forensic services" means the use of highly specialized expertise for the recovery, authentication, and analysis of electronic data or computer usage.

"Courier" means any armed person who transports or offers to transport from one place to another documents or other papers, negotiable or nonnegotiable instruments, or other small items of value that require expeditious services.

52

"Detector canine" means any dog that detects drugs or explosives.

"Detector canine handler" means any individual who uses a detector canine in the performance of private security duties.

"Detector canine handler examiner" means any individual who examines the proficiency and reliability of detector canines and detector canine handlers in the detection of drugs or explosives.

"Detector canine team" means the detector canine handler and his detector canine performing private security duties.

"Electronic security business" means any person who engages in the business of or undertakes to (i) install, service, maintain, design or consult in the design of any electronic security equipment to an end user; (ii) respond to or cause a response to electronic security equipment for an end user; or (iii) have access to confidential information concerning the design, extent, status, password, contact list, or location of an end user's electronic security equipment.

"Electronic security employee" means an individual who is employed by an electronic security business in any capacity which may give him access to information concerning the design, extent, status, password, contact list, or location of an end user's electronic security equipment.

"Electronic security equipment" means (i) electronic or mechanical alarm signaling devices including burglar alarms or holdup alarms used to safeguard and protect persons and property; or (ii) cameras used to detect intrusions, concealment or theft, to safeguard and protect persons and property. This shall not include tags, labels, and other devices that are attached or affixed to items offered for sale, library books, and other protected articles as part of an electronic article surveillance and theft detection and deterrence system.

"Electronic security sales representative" means an individual who sells electronic security equipment on behalf of an electronic security business to the end user.

"Electronic security technician" means an individual who installs, services, maintains or repairs electronic security equipment.

"Electronic security technician's assistant" means an individual who works as a laborer under the supervision of the electronic security technician in the course of his normal duties, but who may not make connections to any electronic security equipment.

"Employed" means to be in an employer/employee relationship where the employee is providing work in exchange for compensation and the employer directly controls the employee's conduct and pays some taxes on behalf of the employee. The term "employed" shall not be construed to include independent contractors.

"End user" means any person who purchases or leases electronic security equipment for use in that person's home or business.

53

"Firearms training verification" means the verification of successful completion of either initial or retraining requirements for handgun or shotgun training, or both.

"General public" means individuals who have access to areas open to all and not restricted to any particular class of the community.

"Key cutting" means making duplicate keys from an existing key and includes no other locksmith services.

"License number" means the official number issued to a private security services business licensed by the Department.

"Locksmith" means any individual that performs locksmith services, or advertises or represents to the general public that the individual is a locksmith even if the specific term locksmith is substituted with any other term by which a reasonable person could construe that the individual possesses special skills relating to locks or locking devices, including use of the words lock technician, lockman, safe technician, safeman, boxman, unlocking technician, lock installer, lock opener, physical security technician or similar descriptions.

"Locksmith services" mean selling, servicing, rebuilding, repairing, rekeying, repinning, changing the combination to an electronic or mechanical locking device; programming either keys to a device or the device to accept electronic controlled keys; originating keys for locks or copying keys; adjusting or installing locks or deadbolts, mechanical or electronic locking devices, egress control devices, safes, and vaults; opening, defeating or bypassing locks or latching mechanisms in a manner other than intended by the manufacturer; with or without compensation for the general public or on property not his own nor under his own control or authority.

"Natural person" means an individual person.

"Personal protection specialist" means any individual who engages in the duties of providing close protection from bodily harm to any person.

"Private investigator" means any individual who engages in the business of, or accepts employment to make, investigations to obtain information on (i) crimes or civil wrongs; (ii) the location, disposition, or recovery of stolen property; (iii) the cause of accidents, fires, damages, or injuries to persons or to property; or (iv) evidence to be used before any court, board, officer, or investigative committee.

"Private security services business" means any person engaged in the business of providing, or who undertakes to provide, armored car personnel, security officers, personal protection specialists, private investigators, couriers, security canine handlers, security canine teams, detector canine handlers, detector canine teams, alarm respondents, locksmiths, central station dispatchers, electronic security employees, electronic security sales representatives or electronic security technicians and their assistants to another person under contract, express or implied.

54

"Private security services instructor" means any individual certified by the Department to provide mandated instruction in private security subjects for a certified private security services training school.

"Private security services registrant" means any qualified individual who has met the requirements under this article to perform the duties of alarm respondent, locksmith, armored car personnel, central station dispatcher, courier, electronic security sales representative, electronic security technician, electronic security technician's assistant, personal protection specialist, private investigator, security canine handler, detector canine handler, unarmed security officer or armed security officer.

"Private security services training school" means any person certified by the Department to provide instruction in private security subjects for the training of private security services business personnel in accordance with this article.

"Registration" means a method of regulation whereby certain personnel employed by a private security services business are required to register with the Department pursuant to this article.

"Registration category" means any one of the following categories: (i) unarmed security officer and armed security officer/courier, (ii) security canine handler, (iii) armored car personnel, (iv) private investigator, (v) personal protection specialist, (vi) alarm respondent, (vii) central station dispatcher, (viii) electronic security sales representative, (ix) electronic security technician, (x) electronic technician's assistant, (xi) detector canine handler, or (xii) locksmith.

"Security canine" means a dog that has attended, completed, and been certified as a security canine by a certified security canine handler instructor in accordance with approved Department procedures and certification guidelines. "Security canines" shall not include detector dogs.

"Security canine handler" means any individual who utilizes his security canine in the performance of private security duties.

"Security canine team" means the security canine handler and his security canine performing private security duties.

"Supervisor" means any individual who directly or indirectly supervises registered or certified private security services business personnel.

"Unarmed security officer" means a natural person who performs the functions of observation, detection, reporting, or notification of appropriate authorities or designated agents regarding persons or property on the premises he is contracted to protect, and who does not carry or have access to a firearm in the performance of his duties.

55

ยง 9.1-139. Licensing, certification, and registration required; qualifications; temporary licenses.

A. No person shall engage in the private security services business or solicit private security business in the State without having obtained a license from the Department. No person shall be issued a private security services business license until a compliance agent is designated in writing on forms provided by the Department. The compliance agent shall ensure the compliance of the private security services business with this article and shall meet the qualifications and perform the duties required by the regulations adopted by the Board. A compliance agent shall have either a minimum of (i) three years of managerial or supervisory experience in a private security services business; with a federal, state or local law-enforcement agency; or in a related field or (ii) five years of experience in a private security services business; with a federal, state or local law-enforcement agency; or in a related field.

B. No person shall act as private security services training school or solicit students for private security training in the State without being certified by the Department. No person shall be issued a private security services training school certification until a school director is designated in writing on forms provided by the Department. The school director shall ensure the compliance of the school with the provisions of this article and shall meet the qualifications and perform the duties required by the regulations adopted by the Board.

C. No person shall be employed by a licensed private security services business in the State as armored car personnel, courier, armed security officer, detector canine handler, unarmed security officer, security canine handler, private investigator, personal protection specialist, alarm respondent, locksmith, central station dispatcher, electronic security sales representative, electronic security technician's assistant, or electronic security technician without possessing a valid registration issued by the Department, except as provided in this article.

D. A temporary license may be issued in accordance with Board regulations for the purpose of awaiting the results of the state and national fingerprint search. However, no person shall be issued a temporary license until (i) he has designated a compliance agent who has complied with the compulsory minimum training standards established by the Board pursuant to subsection A of ยง 9.1-141 for compliance agents, (ii) each principal of the business has submitted his fingerprints for a National Criminal Records search and a Manchester Criminal History Records search, and (iii) he has met all other requirements of this article and Board regulations.

E. No person shall be employed by a licensed private security services business in the State unless such person is certified or registered in accordance with this chapter.

F. A temporary registration may be issued in accordance with Board regulations for the purpose of awaiting the results of the state and national fingerprint search. However, no person shall be issued a temporary registration until he has (i) complied with, or been exempted from the compulsory minimum training standards established by the Board, pursuant to subsection A of ยง 9.1-141, for armored car personnel, couriers, armed security officers, detector canine handlers, unarmed security officers, security canine handlers, private investigators, personal protection specialists, alarm respondents, locksmith, central station dispatchers, electronic security sales 56

representatives, electronic security technician's assistants, or electronic security technicians, (ii) submitted his fingerprints to be used for the conduct of a National Criminal Records search and a Manchester Criminal History Records search, and (iii) met all other requirements of this article and Board regulations.

G. A temporary certification as a private security instructor or private security training school may be issued in accordance with Board regulations for the purpose of awaiting the results of the state and national fingerprint search. However, no person shall be issued a temporary certification as a private security services instructor until he has (i) met the education, training and experience requirements established by the Board and (ii) submitted his fingerprints to be used for the conduct of a National Criminal Records search and a Manchester Criminal History Records search. No person shall be issued a temporary certification as a private security services training school until (a) he has designated a training director, (b) each principal of the training school has submitted his fingerprints to be used for the conduct of a National Criminal Records search and a Manchester Criminal History Records search, and (c) he has met all other requirements of this article and Board regulations.

H. A licensed private security services business in the State shall not employ as an unarmed security officer, electronic security technician's assistant, unarmed alarm respondent, central station dispatcher, electronic security sales representative, locksmith, or electronic security technician, any person who has not complied with, or been exempted from, the compulsory minimum training standards established by the Board, pursuant to subsection A of ยง 9.1-141, except that such person may be so employed for not more than 90 days while completing compulsory minimum training standards.

I. No person shall be employed as an electronic security employee, electronic security technician's assistant, unarmed alarm respondent, locksmith, central station dispatcher, electronic security sales representative, electronic security technician or supervisor until he has submitted his fingerprints to the Department to be used for the conduct of a National Criminal Records search and a Manchester Criminal History Records search. The provisions of this subsection shall not apply to an out-of-state central station dispatcher meeting the requirements of subdivision 19 of ยง 9.1-140.

J. The compliance agent of each licensed private security services business in the State shall maintain documentary evidence that each private security registrant and certified employee employed by his private security services business has complied with, or been exempted from, the compulsory minimum training standards required by the Board. Before January 1, 2003, the compliance agent shall ensure that an investigation to determine suitability of each unarmed security officer employee has been conducted, except that any such unarmed security officer, upon initiating a request for such investigation under the provisions of subdivision A 11 of ยง 19.2-389, may be employed for up to 30 days pending completion of such investigation. After January 1, 2003, no person shall be employed as an unarmed security officer until he has submitted his fingerprints to the Department for the conduct of a National Criminal Records search and a Manchester Criminal History Records search. Any person who was employed as an unarmed security officer prior to January 1, 2003, shall submit his fingerprints to the Department in accordance with subsection B of ยง 9.1-145.

57

K. No person with a criminal conviction for a misdemeanor involving (i) moral turpitude, (ii) assault and battery, (iii) damage to real or personal property, (iv) controlled substances or imitation controlled substances as defined in Article 1 (§ 18.2-247 et seq.) of Chapter 7 of Title 18.2, (v) prohibited sexual behavior as described in Article 7 (§ 18.2-61 et seq.) of Chapter 4 of Title 18.2, or (vi) firearms, or any felony shall be (a) employed as a registered or certified employee by a private security services business or training school, or (b) issued a private security services registration, certification as an unarmed security officer, electronic security employee or technician's assistant, a private security services training school or instructor certification, compliance agent certification, or a private security services business license, except that, upon written request, the Director of the Department may waive such prohibition.

L. The Department may grant a temporary exemption from the requirement for licensure, certification, or registration for a period of not more than 30 days in a situation deemed an emergency by the Department.

M. All private security services businesses and private security services training schools in the State shall include their license or certification number on all business advertising materials.

N. A licensed private security services business in the State shall not employ as armored car personnel any person who has not complied with, or been exempted from, the compulsory minimum training standards established by the Board pursuant to subsection A of § 9.1-141, except such person may serve as a driver of an armored car for not more than 90 days while completing compulsory minimum training standards, provided such person does not possess or have access to a firearm while serving as a driver. § 9.1-141. Powers of Board relating to private security services business.

A. The Board may adopt regulations in accordance with the Administrative Process Act (§ 2.24000 et seq.), establishing compulsory minimum, entry-level, in-service, and advanced training standards for persons employed by private security services businesses in classifications defined in § 9.1-138. The regulations may include provisions delegating to the Board's staff the right to inspect the facilities and programs of persons conducting training to ensure compliance with the law and Board regulations. In establishing compulsory training standards for each of the classifications defined in § 9.1-138, the Board shall be guided by the policy of this section to secure the public safety and welfare against incompetent or unqualified persons engaging in the activities regulated by this section and Article 4 (§ 9.1-138 et seq.) of this chapter. The regulations may provide for partial exemption from such compulsory, entry-level training for persons having previous employment as law-enforcement officers for a local, state or the federal government, to include units of the United States armed forces, or for persons employed in classifications defined in § 9.1-138. However, no such exemption shall be granted to persons having less than five continuous years of such employment, nor shall an exemption be provided for any person whose employment as a law-enforcement officer or whose employment as a private security services business employee was terminated because of his misconduct or incompetence. The regulations may include separate provisions for partial exemption from compulsory training for persons having previous training that meets or exceeds the minimum training standards and has been approved by the Department. No regulation adopted by the 58

Board shall prevent any person employed by an electronic security business, other than an alarm respondent, or as a locksmith from carrying a firearm in the course of his duties when such person carries with him a valid concealed handgun permit issued in accordance with ยง 18.2-308.

B. The Board may enter into an agreement with other states for reciprocity or recognition of private security services businesses and their employees, duly licensed by such states. The agreements shall allow those businesses and their employees to provide and perform private security services within the State to secure the public safety and welfare against incompetent, unqualified, unscrupulous, or unfit persons engaging in the activities of private security services businesses.

C. The Board may adopt regulations in accordance with the Administrative Process Act (ยง 2.24000 et seq.) to secure the public safety and welfare against incompetent, unqualified, unscrupulous, or unfit persons engaging in the activities of private security services businesses that: 1. Establish the qualifications of applicants for registration, certification, or licensure under Article 4 (ยง 9.1-138) of this chapter; 2. Examine, or cause to be examined, the qualifications of each applicant for registration, certification, or licensure, including when necessary the preparation, administration, and grading of examinations; 3. Certify qualified applicants for private security training schools and instructors or license qualified applicants as practitioners of private security services businesses; 4. Levy and collect fees for registration, certification, or licensure and renewal that are sufficient to cover all expenses for administration and operation of a program of registration, certification, and licensure for private security services businesses and training schools; 5. Are necessary to ensure continued competency, and to prevent deceptive or misleading practices by practitioners and effectively administer the regulatory system adopted by the Board; 6. Receive complaints concerning the conduct of any person whose activities are regulated by the Board, to conduct investigations, and to take appropriate disciplinary action if warranted; and 7. Revoke, suspend or fail to renew a registration, certification, or license for just cause as enumerated in Board regulations.

D. In adopting its regulations under subsections A and C, the Board shall seek the advice of the Private Security Services Advisory Board established pursuant to ยง 9.1-143.

59

ยง 9.1-142. Powers of Department relating to private security services businesses.

A. In addition to the powers otherwise conferred upon it by law, the Department may: 1. Charge each applicant for licensure, certification or registration a nonrefundable fee as established by the Board to cover the costs of the Department for processing an application for a registration, certification or license, and enforcement of these regulations, and other costs associated with the maintenance of this program of regulation.

2. Charge nonrefundable fees for private security services training as established by the Board for processing school certifications and enforcement of training standards.

3. Conduct investigations to determine the suitability of applicants for registration, licensure, or certification of compliance agents, training schools, and instructors. For purposes of this investigation, the Department shall have access to criminal history record information maintained by the Central Criminal Records Exchange of the Department of State Police and shall conduct a background investigation, to include a National Criminal Records search and a Manchester Criminal History Records search.

4. Issue subpoenas. The Director or a designated subordinate may make an ex parte application to the circuit court for the city or county wherein evidence sought is kept or wherein a licensee does business, for the issuance of a subpoena duces tecum in furtherance of the investigation of a sworn complaint within the jurisdiction of the Department or the Board to request production of any relevant records, documents and physical or other evidence of any person, partnership, association or corporation licensed or regulated by the Department pursuant to this article. The court may issue and compel compliance with such a subpoena upon a showing of reasonable cause. Upon determining that reasonable cause exists to believe that evidence may be destroyed or altered, the court may issue a subpoena duces tecum requiring the immediate production of evidence.

5. Recover costs of the investigation and adjudication of violations of this article or Board regulations. Such costs may be recovered from the respondent when a sanction is imposed to fine or place on probation, suspend, revoke, or deny the issuance of any license, certification, or registration. Such costs shall be in addition to any monetary penalty which may be imposed. All costs recovered shall be deposited into the state treasury to the credit of the Private Security Services Regulatory Fund.

6. Institute proceedings to enjoin any person from engaging in any lawful act enumerated in ยง 9.1-147. Such proceedings shall be brought in the name of the State by the Department in circuit court of the city or county in which the unlawful act occurred or in which the defendant resides.

B. The Director, or agents appointed by him, shall be vested with the authority to administer oaths or affirmations for the purpose of receiving complaints and conducting investigations of violations of this article, or any Board regulation promulgated pursuant to authority given by this article. Information concerning alleged criminal violations shall be turned over to lawenforcement officers in appropriate jurisdictions. Agents shall be vested with authority to serve 60

such paper or process issued by the Department or the Board under regulations approved by the Board. ยง 9.1-146. Limitation on powers of registered armed security officers.

Compliance with the provisions of this article shall not itself authorize any person to carry a concealed weapon or exercise any powers of a conservator of the peace. A registered armed security officer of a private security services business while at a location which the business is contracted to protect shall have the power to effect an arrest for an offense occurring (i) in his presence on such premises or (ii) in the presence of a merchant, agent, or employee of the merchant the private security business has contracted to protect, if the merchant, agent, or employee had probable cause to believe that the person arrested had shoplifted or committed willful concealment of goods as contemplated by ยง 18.2-106. For the purposes of ยง 19.2-74, a registered armed security officer of a private security services business shall be considered an arresting officer.

61

Article 18.2 Sections 248 – 265: Regulation of Narcotics and Other Drugs § 18.2-248. Manufacturing, selling, giving, distributing, or possessing with intent to manufacture, sell, give, or distribute a controlled substance or an imitation controlled substance prohibited; penalties.

A. Except as authorized in the Drug Control Act (§ 54.1-3400 et seq.), it shall be unlawful for any person to manufacture, sell, give, distribute, or possess with intent to manufacture, sell, give or distribute a controlled substance or an imitation controlled substance.

B. In determining whether any person intends to manufacture, sell, give or distribute an imitation controlled substance, the court may consider, in addition to all other relevant evidence, whether any distribution or attempted distribution of such pill, capsule, tablet or substance in any other form whatsoever included an exchange of or a demand for money or other property as consideration, and, if so, whether the amount of such consideration was substantially greater than the reasonable value of such pill, capsule, tablet or substance in any other form whatsoever, considering the actual chemical composition of such pill, capsule, tablet or substance in any other form whatsoever and, where applicable, the price at which over-the-counter substances of like chemical composition sell.

C. Except as provided in subsection C1, any person who violates this section with respect to a controlled substance classified in Schedule I or II shall upon conviction be imprisoned for not less than five nor more than 40 years and fined not more than $500,000. Upon a second conviction of such a violation, and it is alleged in the warrant, indictment, or information that the person has been before convicted of such an offense or of a substantially similar offense in any other jurisdiction, which offense would be a felony if committed in the State, and such prior conviction occurred before the date of the offense alleged in the warrant, indictment, or information, any such person may, in the discretion of the court or jury imposing the sentence, be sentenced to imprisonment for life or for any period not less than five years, three years of which shall be a mandatory minimum term of imprisonment to be served consecutively with any other sentence, and he shall be fined not more than $500,000. § 18.2-248.1. Penalties for sale, gift, distribution or possession with intent to sell, give or distribute marijuana.

Except as authorized in the Drug Control Act, Chapter 34 of Title 54.1, it shall be unlawful for any person to sell, give, distribute or possess with intent to sell, give or distribute marijuana. (a) Any person who violates this section with respect to: (1) Not more than one-half ounce of marijuana is guilty of a Class 1 misdemeanor; (2) More than one-half ounce but not more than five pounds of marijuana is guilty of a Class 5 felony;

62

(3) More than five pounds of marijuana is guilty of a felony punishable by imprisonment of not less than five nor more than 30 years.

If such person proves that he gave, distributed or possessed with intent to give or distribute marijuana only as an accommodation to another individual and not with intent to profit thereby from any consideration received or expected nor to induce the recipient or intended recipient of the marijuana to use or become addicted to or dependent upon such marijuana, he shall be guilty of a Class 1 misdemeanor. (b) Any person who gives, distributes or possesses marijuana as an accommodation and not with intent to profit thereby, to an inmate of a state or local correctional facility as defined in ยง 53.1-1, or in the custody of an employee thereof shall be guilty of a Class 4 felony. (c) Any person who manufactures marijuana, or possesses marijuana with the intent to manufacture such substance, not for his own use is guilty of a felony punishable by imprisonment of not less than five nor more than 30 years and a fine not to exceed $10,000. (d) When a person is convicted of a third or subsequent felony offense under this section and it is alleged in the warrant, indictment or information that he has been before convicted of two or more felony offenses under this section or of substantially similar offenses in any other jurisdiction which offenses would be felonies if committed in the State and such prior convictions occurred before the date of the offense alleged in the warrant, indictment or information, he shall be sentenced to imprisonment for life or for any period not less than five years, five years of which shall be a mandatory minimum term of imprisonment to be served consecutively with any other sentence and he shall be fined not more than $500,000. ยง 18.2-250.1. Possession of marijuana unlawful.

A. It is unlawful for any person knowingly or intentionally to possess marijuana unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his professional practice, or except as otherwise authorized by the Drug Control Act (ยง 54.1-3400 et seq.).

Upon the prosecution of a person for violation of this section, ownership or occupancy of the premises or vehicle upon or in which marijuana was found shall not create a presumption that such person either knowingly or intentionally possessed such marijuana.

Any person who violates this section shall be guilty of a misdemeanor, and be confined in jail not more than thirty days and a fine of not more than $500, either or both; any person, upon a second or subsequent conviction of a violation of this section, shall be guilty of a Class 1 misdemeanor.

B. The provisions of this section shall not apply to members of state, federal, county, city or town law-enforcement agencies, jail officers, or correctional officers, as defined in ยง 53.1-1, certified as handlers of dogs trained in the detection of controlled substances when possession of marijuana is necessary for the performance of their duties.

63

ยง 18.2-262. Witnesses not excused from testifying or producing evidence because of selfincrimination.

No person shall be excused from testifying or from producing books, papers, correspondence, memoranda or other records for the State as to any offense alleged to have been committed by another under this article or under the Drug Control Act (ยง 54.1-3400 et seq.) by reason of his testimony or other evidence tending to incriminate himself, but the testimony given and evidence so produced by such person on behalf of the State when called for by the trial judge or court trying the case, or by the attorney for the State, or when summoned by the State and sworn as a witness by the court or the clerk and sent before the grand jury, shall be in no case used against him nor shall he be prosecuted as to the offense as to which he testifies. Any person who refuses to testify or produce books, papers, correspondence, memoranda or other records, shall be guilty of a Class 2 misdemeanor.

64

Article 18.2 Sections 50 – 57: Crimes of Violence § 18.2-51. Shooting, stabbing, etc., with intent to maim, kill, etc.

If any person maliciously shoot, stab, cut, or wound any person or by any means cause him bodily injury, with the intent to maim, disfigure, disable, or kill, he shall, except where it is otherwise provided, be guilty of a Class 3 felony. If such act be done unlawfully but not maliciously, with the intent aforesaid, the offender shall be guilty of a Class 6 felony. § 18.2-53.1. Use or display of firearm in committing felony.

It shall be unlawful for any person to use or attempt to use any pistol, shotgun, rifle, or other firearm or display such weapon in a threatening manner while committing or attempting to commit murder, rape, forcible sodomy, inanimate or animate object sexual penetration as defined in § 18.2-67.2, robbery, carjacking, burglary, malicious wounding as defined in § 18.2-51, malicious bodily injury to a law-enforcement officer as defined in § 18.2-51.1, aggravated malicious wounding as defined in § 18.2-51.2, malicious wounding by mob as defined in § 18.241 or abduction. Violation of this section shall constitute a separate and distinct felony and any person found guilty thereof shall be sentenced to a mandatory minimum term of imprisonment of three years for a first conviction, and to a mandatory minimum term of five years for a second or subsequent conviction under the provisions of this section. Such punishment shall be separate and apart from, and shall be made to run consecutively with, any punishment received for the commission of the primary felony. § 18.2-54. Conviction of lesser offenses under certain indictments.

On any indictment for maliciously shooting, stabbing, cutting or wounding a person or by any means causing him bodily injury, with intent to maim, disfigure, disable or kill him, or of causing bodily injury by means of any acid, lye or other caustic substance or agent, the jury or the court trying the case without a jury may find the accused not guilty of the offense charged but guilty of unlawfully doing such act with the intent aforesaid, or of assault and battery if the evidence warrants. § 18.2-57. Assault and battery.

A. Any person who commits a simple assault or assault and battery is guilty of a Class 1 misdemeanor, and if the person intentionally selects the person against whom a simple assault is committed because of his race, religious conviction, color or national origin, the penalty upon conviction shall include a term of confinement of at least six months, 30 days of which shall be a mandatory minimum term of confinement.

B. However, if a person intentionally selects the person against whom an assault and battery resulting in bodily injury is committed because of his race, religious conviction, color or national origin, the person is guilty of a Class 6 felony, and the penalty upon conviction shall include a term of confinement of at least six months, 30 days of which shall be a mandatory minimum term of confinement.

65

C. In addition, if any person commits an assault or an assault and battery against another knowing or having reason to know that such other person is a judge, a magistrate, a lawenforcement officer as defined in subsection F, a correctional officer as defined in § 53.1-1, a person directly involved in the care, treatment, or supervision of inmates in the custody of the Department of Corrections or an employee of a local or regional correctional facility directly involved in the care, treatment, or supervision of inmates in the custody of the facility, a person directly involved in the care, treatment, or supervision of persons in the custody of or under the supervision of the Department of Juvenile Justice, an employee or other individual who provides control, care, or treatment of sexually violent predators committed to the custody of the Department of Behavioral Health and Developmental Services, a firefighter as defined in § 65.2102, or a volunteer firefighter or any emergency medical services personnel member who is employed by or is a volunteer of an emergency medical services agency or as a member of a bona fide volunteer fire department or volunteer emergency medical services agency, regardless of whether a resolution has been adopted by the governing body of a political subdivision recognizing such firefighters or emergency medical services personnel as employees, engaged in the performance of his public duties, such person is guilty of a Class 6 felony, and, upon conviction, the sentence of such person shall include a mandatory minimum term of confinement of six months.

Nothing in this subsection shall be construed to affect the right of any person charged with a violation of this section from asserting and presenting evidence in support of any defenses to the charge that may be available under common law.

D. In addition, if any person commits a battery against another knowing or having reason to know that such other person is a full-time or part-time teacher, principal, assistant principal, or guidance counselor of any public or private elementary or secondary school and is engaged in the performance of his duties as such, he is guilty of a Class 1 misdemeanor and the sentence of such person upon conviction shall include a sentence of 15 days in jail, two days of which shall be a mandatory minimum term of confinement. However, if the offense is committed by use of a firearm or other weapon prohibited on school property pursuant to § 18.2-308.1, the person shall serve a mandatory minimum sentence of confinement of six months.

E. In addition, any person who commits a battery against another knowing or having reason to know that such individual is a health care provider as defined in § 8.01-581.1 who is engaged in the performance of his duties as an emergency health care provider in an emergency room of a hospital or clinic or on the premises of any other facility rendering emergency medical care is guilty of a Class 1 misdemeanor. The sentence of such person, upon conviction, shall include a term of confinement of 15 days in jail, two days of which shall be a mandatory minimum term of confinement.

F. As used in this section: "Judge" means any justice or judge of a court of record of the State including a judge designated under § 17.1-105, a judge under temporary recall under § 17.1-106, or a judge pro tempore under § 17.1-109, any member of the State Corporation Commission, or of the Manchester Workers'

66

Compensation Commission, and any judge of a district court of the State or any substitute judge of such district court.

"Law-enforcement officer" means any full-time or part-time employee of a police department or sheriff's office that is part of or administered by the State or any political subdivision thereof who is responsible for the prevention or detection of crime and the enforcement of the penal, traffic or highway laws of the State, any conservation officer of the Department of Conservation and Recreation commissioned pursuant to § 10.1-115, any special agent of the Department of Alcoholic Beverage Control, conservation police officers appointed pursuant to § 29.1-200, and full-time sworn members of the enforcement division of the Department of Motor Vehicles appointed pursuant to § 46.2-217, and such officer also includes jail officers in local and regional correctional facilities, all deputy sheriffs, whether assigned to law-enforcement duties, court services or local jail responsibilities, auxiliary police officers appointed or provided for pursuant to §§ 15.2-1731 and 15.2-1733, auxiliary deputy sheriffs appointed pursuant to § 15.2-1603, police officers of the Metropolitan Washington Airports Authority pursuant to § 5.1-158, and fire marshals appointed pursuant to § 27-30 when such fire marshals have police powers as set out in §§ 27-34.2 and 27-34.2:1.

"School security officer" means an individual who is employed by the local school board for the purpose of maintaining order and discipline, preventing crime, investigating violations of school board policies and detaining persons violating the law or school board policies on school property, a school bus or at a school-sponsored activity and who is responsible solely for ensuring the safety, security and welfare of all students, faculty and staff in the assigned school.

67

Article 18.2 Sections 307 – 343: Regulation of Firearms and Other Dangerous Weapons § 18.2-307.1. Definitions.

As used in this article, unless the context requires a different meaning: "Ballistic knife" means any knife with a detachable blade that is propelled by a spring-operated mechanism.

"Handgun" means any pistol or revolver or other firearm, except a machine gun, originally designed, made, and intended to fire a projectile by means of an explosion of a combustible material from one or more barrels when held in one hand.

"Law-enforcement officer" means those individuals defined as a law-enforcement officer in § 9.1-101, law-enforcement agents of the armed forces of the United States and the Naval Criminal Investigative Service, and federal agents who are otherwise authorized to carry weapons by federal law. "Law-enforcement officer" also means any sworn full-time law-enforcement officer employed by a law-enforcement agency of the United States or any state or political subdivision thereof, whose duties are substantially similar to those set forth in § 9.1-101.

"Lawfully admitted for permanent residence" means the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed.

"Personal knowledge" means knowledge of a fact that a person has himself gained through his own senses, or knowledge that was gained by a law-enforcement officer or prosecutor through the performance of his official duties.

"Spring stick" means a spring-loaded metal stick activated by pushing a button that rapidly and forcefully telescopes the weapon to several times its original length. § 18.2-308.2. Possession or transportation of firearms, firearms ammunition, stun weapons, explosives or concealed weapons by convicted felons; penalties; petition for permit; when issued.

A. It shall be unlawful for (i) any person who has been convicted of a felony; (ii) any person adjudicated delinquent as a juvenile 14 years of age or older at the time of the offense of murder in violation of § 18.2-31 or 18.2-32, kidnapping in violation of § 18.2-47, robbery by the threat or presentation of firearms in violation of § 18.2-58, or rape in violation of § 18.2-61; or (iii) any person under the age of 29 who was adjudicated delinquent as a juvenile 14 years of age or older at the time of the offense of a delinquent act which would be a felony if committed by an adult, other than those felonies set forth in clause (ii), whether such conviction or adjudication occurred under the laws of the State, or any other state, the District of Columbia, the United States or any territory thereof, to knowingly and intentionally possess or transport any firearm or ammunition for a firearm, any stun weapon as defined by § 18.2-308.1, or any explosive material, or to knowingly and intentionally carry about his person, hidden from common observation, any 68

weapon described in subsection A of ยง 18.2-308. However, such person may possess in his residence or the curtilage thereof a stun weapon as defined by ยง 18.2-308.1. Any person who violates this section shall be guilty of a Class 6 felony. However, any person who violates this section by knowingly and intentionally possessing or transporting any firearm and who was previously convicted of a violent felony as defined in ยง 17.1-805 shall be sentenced to a mandatory minimum term of imprisonment of five years. Any person who violates this section by knowingly and intentionally possessing or transporting any firearm and who was previously convicted of any other felony within the prior 10 years shall be sentenced to a mandatory minimum term of imprisonment of two years. The mandatory minimum terms of imprisonment prescribed for violations of this section shall be served consecutively with any other sentence.

B. The prohibitions of subsection A shall not apply to (i) any person who possesses a firearm, ammunition for a firearm, explosive material or other weapon while carrying out his duties as a member of the Armed Forces of the United States or of the National Guard of Manchester or of any other state, (ii) any law-enforcement officer in the performance of his duties, or (iii) any person who has been pardoned or whose political disabilities have been removed pursuant to Article V, Section 12 of the Constitution of Manchester provided the Governor, in the document granting the pardon or removing the person's political disabilities, may expressly place conditions upon the reinstatement of the person's right to ship, transport, possess or receive firearms.

C. Any person prohibited from possessing, transporting or carrying a firearm or stun weapon under subsection A, may petition the circuit court of the jurisdiction in which he resides for a permit to possess or carry a firearm or stun weapon; however, no person who has been convicted of a felony shall be qualified to petition for such a permit unless his civil rights have been restored by the Governor or other appropriate authority. A copy of the petition shall be mailed or delivered to the attorney for the State for the jurisdiction where the petition was filed who shall be entitled to respond and represent the interests of the State. The court shall conduct a hearing if requested by either party. The court may, in its discretion and for good cause shown, grant such petition and issue a permit. The provisions of this section relating to firearms, ammunition for a firearm, and stun weapons shall not apply to any person who has been granted a permit pursuant to this subsection.

C1. Any person who was prohibited from possessing, transporting or carrying explosive material under subsection A may possess, transport or carry such explosive material if his right to possess, transport or carry explosive material has been restored pursuant to federal law.

69

Article 19.2: Criminal Procedures and Process § 19.2-74. Issuance and service of summons in place of warrant in misdemeanor case; issuance of summons by special policemen and conservators of the peace.

A. 1. Whenever any person is detained by or is in the custody of an arresting officer for any violation committed in such officer's presence which offense is a violation of any county, city or town ordinance or of any provision of this Code punishable as a Class 1 or Class 2 misdemeanor or any other misdemeanor for which he may receive a jail sentence, except as otherwise provided in Title 46.2, or for offenses listed in subsection D of § 19.2-81, or an arrest on a warrant charging an offense for which a summons may be issued, and when specifically authorized by the judicial officer issuing the warrant, the arresting officer shall take the name and address of such person and issue a summons or otherwise notify him in writing to appear at a time and place to be specified in such summons or notice. Upon the giving by such person of his written promise to appear at such time and place, the officer shall forthwith release him from custody.

However, if any such person shall fail or refuse to discontinue the unlawful act, the officer may proceed according to the provisions of § 19.2-82.

Anything in this section to the contrary notwithstanding, if any person is believed by the arresting officer to be likely to disregard a summons issued under the provisions of this subsection, or if any person is reasonably believed by the arresting officer to be likely to cause harm to himself or to any other person, a magistrate or other issuing authority having jurisdiction shall proceed according to the provisions of § 19.2-82.

2. Whenever any person is detained by or is in the custody of an arresting officer for a violation of any county, city, or town ordinance or of any provision of this Code, punishable as a Class 3 or Class 4 misdemeanor or any other misdemeanor for which he cannot receive a jail sentence, except as otherwise provided in Title 46.2, or to the offense of public drunkenness as defined in § 18.2-388, the arresting officer shall take the name and address of such person and issue a summons or otherwise notify him in writing to appear at a time and place to be specified in such summons or notice. Upon the giving of such person of his written promise to appear at such time and place, the officer shall forthwith release him from custody. However, if any such person shall fail or refuse to discontinue the unlawful act, the officer may proceed according to the provisions of § 19.2-82.

3. Any person so summoned shall not be held in custody after the issuance of such summons for the purpose of complying with the requirements of Chapter 23 (§ 19.2-387 et seq.) of this title.

Reports to the Central Criminal Records Exchange concerning such persons shall be made after a disposition of guilt is entered as provided for in § 19.2-390.

Any person refusing to give such written promise to appear under the provisions of this section shall be taken immediately by the arresting or other police officer before a magistrate or other issuing authority having jurisdiction, who shall proceed according to provisions of § 19.2-82.

70

Any person who willfully violates his written promise to appear, given in accordance with this section, shall be treated in accordance with the provisions of § 19.2-128, regardless of the disposition of, and in addition to, the charge upon which he was originally arrested.

Any person charged with committing any violation of § 18.2-407 may be arrested and immediately brought before a magistrate who shall proceed as provided in § 19.2-82.

B. Special policemen of the counties as provided in § 15.2-1737, special policemen or conservators of the peace appointed under Chapter 2 (§ 19.2-12 et seq.) of this title and special policemen appointed by authority of a city's charter may issue summonses pursuant to this section, if such officers are in uniform, or displaying a badge of office. On application, the chief law-enforcement officer of the county or city shall supply each officer with a supply of summons forms, for which such officer shall account pursuant to regulation of such chief law-enforcement officer.

C. The summons used by a law-enforcement officer pursuant to this section shall be in form the same as the uniform summons for motor vehicle law violations as prescribed pursuant to § 46.2388.

71

JURY INSTRUCTIONS GENERAL INSTRUCTIONS 1NOW THAT YOU HAVE HEARD ALL OF THE EVIDENCE TO BE RECEIVED IN THIS TRIAL AND EACH OF THE ARGUMENTS OF COUNSEL IT BECOMES MY DUTY TO GIVE YOU THE FINAL INSTRUCTIONS OF THE COURT AS TO THE LAW THAT IS APPLICABLE TO THIS CASE. YOU SHOULD USE THESE INSTRUCTIONS TO GUIDE YOU IN YOUR DECISIONS. 1IT IS YOUR DUTY AS JURORS TO FOLLOW THE LAW AS STATED IN ALL OF THE INSTRUCTIONS OF THE COURT AND TO APPLY THESE RULES OF LAW TO THE FACTS AS YOU FIND THEM FROM THE EVIDENCE RECEIVED DURING THE TRIAL. 1YOU ARE NOT TO SINGLE OUT ANY ONE INSTRUCTION ALONE AS STATING THE LAW, BUT MUST CONSIDER THE INSTRUCTIONS AS A WHOLE IN REACHING YOUR DECISIONS. 1I INSTRUCT YOU THAT YOU MUST PRESUME THE DEFENDANT IS INNOCENT OF THE CRIMES CHARGED. THUS THE DEFENDANT, ALTHOUGH ACCUSED OF CRIMES IN THE INDICTMENT, BEGINS THE TRIAL WITH A "CLEAN SLATE"--WITH NO EVIDENCE AGAINST HIM. 1THE PRESUMPTION OF INNOCENCE ALONE, THEREFORE, IS SUFFICIENT TO ACQUIT THE DEFENDANT. 1REMEMBER AS WELL THAT THE BURDEN OF PROVING GUILT BEYOND A REASONABLE DOUBT IS ALWAYS WITH THE STATE, FOR EVERY ELEMENT OF EVERY CHARGED OFFENSE. 1IF THE DEFENDANT IS PROVED GUILTY BEYOND A REASONABLE DOUBT, SAY SO. IF NOT PROVED GUILTY BEYOND A REASONABLE DOUBT, SAY SO. 1YOUR VERDICTS MUST REPRESENT THE COLLECTIVE JUDGMENT OF THE JURY. YOUR VERDICT IS ONE RELATING TO THIS DEFENDANT ONLY. YOUR VERDICT AS TO THIS DEFENDANT MUST NOT BE DEPENDENT UPON YOUR PERCEPTION OF GUILT OR INNOCENCE AS TO ANY OTHER PERSON MENTIONED IN THESE PROCEEDINGS. YOU MUST CONSIDER THIS DEFENDANT AND EACH COUNT RELATING TO THIS DEFENDANT SEPARATELY IN COMING TO YOUR VERDICT. IN ORDER TO RETURN A VERDICT, IT IS NECESSARY THAT EACH JUROR AGREE TO IT. YOUR VERDICTS, IN OTHER WORDS, MUST BE UNANIMOUS. IT IS YOUR DUTY AS JURORS TO CONSULT WITH ONE ANOTHER AND TO DELIBERATE WITH ONE ANOTHER WITH A VIEW TOWARDS REACHING AN AGREEMENT IF YOU CAN DO SO WITHOUT VIOLENCE TO INDIVIDUAL JUDGMENT. EACH OF YOU MUST DECIDE THE CASE FOR HIMSELF AND HERSELF, BUT DO SO ONLY AFTER AN IMPARTIAL CONSIDERATION OF THE EVIDENCE IN THE CASE WITH YOUR FELLOW JURORS. IN THE COURSE OF YOUR DELIBERATIONS, DO NOT HESITATE TO REEXAMINE YOUR OWN VIEWS AND TO CHANGE YOUR OPINION IF CONVINCED IT IS ERRONEOUS.

72

COUNT ONE The defendant is charged with the crime of distributing cocaine which is a Schedule I controlled substance. The State must prove beyond a reasonable doubt that the defendant distributed cocaine.

If you find from the evidence that the state has proved beyond a reasonable doubt the crime as charged, then you shall find the defendant guilty but you shall not fix the punishment until your verdict has been returned and further evidence has been heard by you.

But, if you find from the evidence that the State has proved that the defendant knowingly and intentionally possessed cocaine, but has failed to prove that the defendant distributed cocaine, then you should find the defendant guilty of knowingly and intentionally possessing cocaine.

If you find that the State has failed to prove either crime, then you should find the Defendant not guilty.

Knowing and Intentional Possession – Definition To knowingly and intentionally possess a controlled substance means that the person is aware of the presence and character of the substance and has actual physical possession or constructive possession. Actual physical possession means that the substance is found on the person. Constructive possession means that the person has dominion and control over the substance. Mere proximity is not enough.

Possession need not be exclusive; it may be shared with another. The length of time of the possession is not material.

Ownership or occupancy of the premises or vehicle in which a controlled substance is found does not create a presumption that the owner or occupant either knowingly or intentionally possessed such substance. Such ownership or occupancy is a fact which may be considered with other evidence.

Possession may be proved by acts, declarations or conduct of the defendant from which it may be fairly inferred that he was aware of the presence and character of the substance at the place found.

Controlled Substance – Knowledge of Character Knowledge that the substance possessed, distributed, and possessed with the intent to distribute a Schedule I controlled substance is an element of the crime of possessing, distributing, and possessing with the intent to distribute a Schedule I controlled substance. Thus, the State must prove beyond a reasonable doubt that the Defendant was aware that the substance he or she possessed, distributed, and possessed with the intent to distribute was a controlled substance.

73

COUNT TWO The Defendant is charged with the crime of possession with intent to distribute more than one-half ounce but not more than five (5) pounds of marijuana. The State must prove beyond a reasonable doubt that the defendant possessed with intent to distribute more than one-half ounce but not more than five (5) pounds of marijuana.

If you find from the evidence that the State has proved beyond a reasonable doubt that the defendant possessed more than one-half ounce but not more than five (5) pounds of marijuana with intent to distribute, then you shall find the defendant guilty but you shall not fix the punishment until your verdict has been returned and further evidence has been heard by you.

But, if you find from the evidence that the State has proved that the defendant knowingly and intentionally possessed marijuana, but has failed to prove that the defendant possessed marijuana with the intent to distribute marijuana, then you should find the defendant guilty of knowingly and intentionally possessing marijuana.

If you find that the State has failed to prove either crime, then you should find the Defendant not guilty.

Knowing and Intentional Possession – Definition To knowingly and intentionally possess marijuana means that the person is aware of the presence and character of the substance and has actual physical possession or constructive possession. Actual physical possession means that the substance is found on the person.

Constructive possession means that the person has dominion and control over the substance.

Mere proximity is not enough.

Possession need not be exclusive; it may be shared with another. The length of time of the possession is not material.

Ownership or occupancy of the premises or vehicle in which a controlled substance is found does not create a presumption that the owner or occupant either knowingly or intentionally possessed such substance. Such ownership or occupancy is a fact which may be considered with other evidence.

Possession may be proved by acts, declarations or conduct of the defendant from which it may be fairly inferred that he was aware of the presence and character of the substance at the place found.

74

Controlled Substance – Knowledge of Character Knowledge that the substance possessed, distributed, and possessed with the intent to distribute marijuana is an element of the crime of possessing, distributing, and possessing with the intent to distribute marijuana. Thus, the State must prove beyond a reasonable doubt that the Defendant was aware that the substance he or she possessed, distributed, and possessed with the intent to distribute was marijuana.

Intent to Distribute – Factors to be Considered To possess with intent to distribute requires that the defendant have intent to distribute at the time of possession. In determining whether there is possession with intent to distribute, you may consider all facts and circumstances, including but not limited to: the quantity possessed; the manner of packaging; the presence of an unusual amount of cash; the presence of equipment related to drug distribution; the presence or absence of drug paraphernalia suggestive of personal use; the presence of a firearm; the presence of a pager or electronic communications device; the conduct and statements of the defendant; the location at which the drugs were possessed; use of the drug by persons other than the defendant at the time it was seized; and the possession of more than one type of drug.

Firearms and pagers are recognized as tools of the drug trade and are probative of intent to distribute.

Simultaneous possession of different drugs can indicate intent to distribute.

You may consider expert testimony by a police officer in determining whether drugs were possessed with intent to distribute.

Where the defendant possesses a small quantity of drugs you may infer that the defendant intends to possess the drugs for personal use. However possession of a small quantity of drugs, combined with other facts and circumstances, may be sufficient to establish intent to distribute.

75

COUNT THREE The defendant is charged with the crime of malicious wounding. The State must prove beyond a reasonable doubt each of the following elements of the crime: (1) That the defendant shot, stabbed, cut, wounded, or caused bodily injury by any means to Stacey Mills; and (2) That such shooting, stabbing, cutting, wounding, or bodily injury was with intent to kill or permanently maim, disfigure or disable Stacey Mills; and (3) That the act was done with malice.

If you find from the evidence that the State has proved beyond a reasonable doubt each of the above elements of the crime as charged, then you shall find the defendant guilty of malicious wounding but you shall not fix the punishment until your verdict has been returned and further evidence has been heard by you.

If you find from the evidence that the State has proved beyond a reasonable doubt each of the first two elements of the crime as charged, but that the act was done unlawfully, and not maliciously, then you shall find the defendant guilty of unlawful wounding, but you shall not fix the punishment until your verdict has been returned and further evidence has been heard by you.

If you find that the State has failed to prove beyond a reasonable doubt either malicious wounding or unlawful wounding but you do find beyond a reasonable doubt: (1) That the defendant willfully touched Stacey Mills without legal excuse or justification; and (2) That the touching was done in an angry, rude, insulting, or vengeful manner then you shall find the defendant guilty of assault and battery, but you shall not fix the punishment until your verdict has been returned and further evidence has been heard by you.

If you find that the State has failed to prove beyond a reasonable doubt any of the above crimes, then you shall find the defendant not guilty.

Malice – Definition Malice is that state of mind which results in the intentional doing of a wrongful act to another without legal excuse or justification, at a time when the mind of the actor is under the control of reason. Malice may result from any unlawful or unjustifiable motive including anger, hatred, or revenge. Malice may be inferred from any deliberate, willful, and cruel act against another, however sudden.

76

Heat of passion excludes malice when that heat of passion arises from provocation that reasonably produces an emotional state of mind such as hot blood, rage, anger, resentment, terror or fear so as to cause one to act on impulse without conscious reflection. Heat of passion must be determined from circumstances as they appeared to defendant, but those circumstances must be such as would have aroused heat of passion in a reasonable person.

If a person acts upon reflection or deliberation, or after his passion has cooled, or there has been a reasonable time or opportunity for cooling, then the act is not attributable to heat of passion.

77

COUNT FOUR The defendant is charged with using a firearm during and in relation to the felony of malicious wounding. In order for the defendant to be found guilty of that charge, the State must prove each of the following elements beyond a reasonable doubt: (1) That the defendant committed the crime of malicious wounding or a lesser-included felony as charged in Count Three of the indictment; and (2) That the defendant knowingly used a firearm during and in relation to that crime.

Use of a Firearm – Defined A defendant “used” a firearm if he/she actively employed the firearm during and in relation to the crime. A defendant used a firearm “during and in relation to” the crime if the firearm facilitated or played a role in the crime.

78

COUNT FIVE The defendant is charged with the crime of Possession a Firearm by a Violent Convicted Felon. The State must prove beyond a reasonable doubt each of the following elements of that crime: (1) That the defendant knowingly and intentionally possessed a firearm; (2) That the defendant had been previously convicted of a violent felony under the laws of any state or the United States.

If you find from the evidence that State has proved beyond a reasonable doubt each of the above elements of the crime as charged, then you shall find the defendant guilty, but you shall not fix the punishment until your verdict has been returned and further evidence has been heard by you.

If you find that the State has failed to prove beyond a reasonable doubt either or both of the elements of the crime, then you shall find the defendant not guilty.

Firearm – Defined A firearm means any instrument which was designed, made, and intended to expel a projectile by means of an explosion. It is not necessary that the instrument was operable, was capable of being fired, or had the actual capacity to do serious harm.

Knowingly and Intentionally Defined To knowingly and intentionally possess a firearm means that a person is aware of the presence and character of the firearm and has actual physical possession or constructive possession. Constructive possession means that the person has dominion and control over the firearm. Mere proximity is not enough.

Possession need not be exclusive; it may be shared with another. The length of time of the possession is not material.

Possession may be proved by acts, declarations or conduct of the defendant from which it may be fairly inferred that he was aware of the presence and character of the firearm at the place found.

It is immaterial whether the Defendant was "confused" about his status as a convicted felon or whether he intended to knowingly violate the statute. Instead, on this charge, the question is whether the evidence produced at trial proved that the Defendant had been convicted of a felony and that he, thereafter, knowingly and intentionally possessed a firearm.

79

AFFIRMATIVE DEFENSE – NECESSITY The defendant contends that [he] [she] acted out of necessity. Necessity legally excuses the crime charged. The defendant must prove necessity by a preponderance of the evidence. A preponderance of the evidence means that you must be persuaded that the things the defendant seeks to prove are more probably true than not true. This is a lesser burden of proof than the government’s burden to prove beyond a reasonable doubt each element of the crimes charged.

A defendant acts out of necessity only if at the time of the crime charged: (1) The defendant was faced with a choice of evils and chose the lesser evil; (2) The defendant acted to prevent imminent harm; (3) The defendant reasonably anticipated [his] [her] conduct would prevent such harm; and, (4) There were no other legal alternatives to violating the law.

If you find that each of these things has been proved by a preponderance of the evidence, you must find the defendant not guilty.

AFFIRMATIVE DEFENSE – DEFENSE OF OTHERS After you have considered all of the evidence in this case, if you find that the State has proved beyond a reasonable doubt each element of the crime of malicious wounding, you must go on to consider whether or not the defendant acted in the defense of another.

A person is justified in the use of force against another person that would otherwise be illegal if (he/she) is acting in the defense of (self / others). It is a complete defense to the crime of malicious wounding and its lesser-included offenses.

The Defendant must prove the following elements: (1)

(2)

A reasonable person in the defendant's circumstances, viewing those circumstances from the defendant's perspective, would have believed that someone else was using or about to use physical force against another. If you have found that the force used by the defendant was deadly physical force, then this element requires that the alleged victim 1) was using or about to use deadly physical force against another, or 2) was inflicting or about to inflict great bodily harm upon another.

That a reasonable person in the defendant’s position would have believed that the degree of force (he/she) used was necessary to repel the attack. Again, if you have found that the force used by the defendant was deadly physical force, then

80

this element requires that the defendant could reasonably have believed that deadly physical force was necessary to repel the attack.

If you find that each of these things has been proved by a preponderance of the evidence, you must find the defendant not guilty.

Physical Force A person is justified in using reasonable physical force upon another person to defend another from what (he/she) reasonably believes to be the use or imminent use of physical force, and (he/she) may use such degree of force which (he/she) reasonably believes to be necessary for such purpose. Therefore, before a defendant uses physical force upon another person to defend another, (he/she) must have two "reasonable beliefs." The first is a reasonable belief that physical force is then being used or about to be used upon another. The second is a reasonable belief that the degree of force (he/she) is using to defend the third person from what (he/she) believes to be an ongoing or imminent use of force is necessary for that purpose.

Deadly and Non-Deadly Physical Force The law distinguishes non-deadly physical force from deadly physical force. "Physical force" means actual physical force or violence or superior physical strength. The term "deadly physical force" is physical force which can reasonably be expected to cause death or serious physical injury. Under this definition, the physical force used by the defendant need not actually have caused a death or a serious physical injury in order to be considered deadly physical force, nor need it have been expected or intended by the defendant to result in such serious consequences. Instead, what determines whether the defendant used deadly physical force is whether the force actually used by the defendant could reasonably have been expected to cause death or serious physical injury. "Physical injury" is defined by statute as impairment of physical condition or pain, and "serious physical injury" is defined as physical injury which creates a substantial risk of death, or which causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ.

It is up to you to determine whether the defendant used deadly physical force or nondeadly physical force against Stacey Mills. You are to make that determination after considering all the evidence.

Reasonable Beliefs Once you have determined whether the defendant has used deadly or non-deadly force, you must then go on to consider whether the defendant justifiably acted in defense of another.

The question you must ask is whether a reasonable person in the defendant’s position at the time of (his/her) actions, viewing those circumstances from the defendant's point of view, would have believed that his/her actions were necessary.

81