It's Just a Misdemeanor - What's the big Deal?

The average person may go through life without ever being charged with any criminal offense, certainly not a felony. These days it is not uncommon to see people come to our office charged with a multitude of misdemeanor charges, for example during a traffic stop if the person has marijuana and papers in the car then they may get a charged as follows: 1. Possession of marijuana, 2. Possession of paraphernalia, 3. Driving under the influence, 4. Resisting arrest, and 5. Disorderly conduct. Or we have seen people arrested in their own yards for: 1. Disorderly conduct, 2. Public Drunk, 3. Resisting arrest, and 4. Disobeying a police office. In fact, in a number of the municipalities around Jackson it is common to see multiple charges stacked up on a person. And the people that come in to see us are often very highly educated and upper income. We call these cases "white collar misdemeanors." These charges are usually very important to our clients’ reputations, because a misdemeanor conviction can be a significant blemish on a work record or security clearance.

We recently had one of these cases go to trial in a Municipal Court. The client was charged with Domestic Violence and possession of paraphernalia. Keep in mind that if you are convicted of misdemeanor domestic violence it bars you from ever owning or possessing a weapon or ammunition. In other words, no hunting and no self-defense. When the client first came in, he and his wife were a mess. They seemed ill-suited for each other, or at least at great odds with each other. It was obvious there were problems in the family.

Our client had the two (2) charges and the wife had several drug charges. Of course, we could not represent both parties. Originally, I explained to the client that he could enter a domestic violence class and if he successfully finished it the charges might be remanded, conditioned on future good behavior. To be honest, the client did not like the idea of the class because he said, "I did not hit my wife. My wife was under the influence of something and was going crazy. I had to go to work and held her back from climbing in my truck. She was nuts!" I explained the risks of trial and his right to appeal if convicted in the Municipal Court and the client opted to go to the classes.

Well, the classes did not go well. The client had no interest in the classes because he steadfastly maintained he never hit his wife. He also told me the paraphernalia, which was a homemade crack/meth pipe, was not his pipe, even though it was found in a briefcase in the closet. The client was removed from the class for failure to attend and the case was set for trial.

I have to say that the prosecutor had been extremely understanding and polite in this case. He had bent over backward to help me resolve this case considering his files showed a neighbor who claimed he saw my client strike his wife in the front yard and there were five (5) officers who searched the client's home and found the drugs and crack pipe. The case was set for trial and the client and I showed up ready. The prosecutor had the neighbor, the wife, and five (5) officers.

The first witness was the neighbor. The neighbor was a 20-ish man, skinny, ill-fitting and bright clothes, with glasses and an undeveloped mustache. I did not realize it but while waiting for our trial I had sat beside the young man and we exchanged pleasantries. Under direct examination the young witness testified he was walking down the street when he heard the fighting. He looked over and saw my client's wife repeatedly attempting to climb into her husband's truck and she was screaming at the top of her lungs and throwing around some good expletives. The neighbor said he saw my client raise his hand and strike his wife. This young man reminded me in some ways of my oldest son. A nice, decent young man but possibly with some special needs. I wanted to be unequivocally respectful of him during cross-examination.

I started slowing and began bringing our details that the prosecutor ignored, like: "How far away were you from my client and his wife during the time she keep fighting him? (20-30 feet). Weren't you on the opposite side of the truck when you saw my client raise his hand in the air? (yes). Wasn't the wife screaming bloody murder and cussing? (yes). And wasn’t the husband trying to keep her out of his truck? (I think so). Did you see the wife break her window at their home? (no). Young man, you never actually saw my client's palm or fist hit his wife, did you? (long pause, looks at prosecutor-no sir). Now, let me go over this so you and I understand each other, because I want to be fair with you. (okay). You saw my client raise his hand, but you never saw him hit his wife. (pause, no sir). But you did see his hand come down? (yes, sir). Well, have you ever had someone grab you from behind the shoulder and pull you, or pull you down? (yes, sir). Let me demonstrate what I mean to you." I then demonstrated my client raising his hand up above his head and bringing it down to grab the back of his wife's shoulder to stop her from getting in his truck, and I continued with a few more questions establishing that is what the neighbor saw. I pressed the young man on this point because I could see the prosecutor getting “itchy” in his chair. I wanted this pointed pinned down now.

The prosecutor was "fit to be tied" on re-direct. He went back on the witness like he was on cross-examination. I let him go because I felt content with my examination. I thought the neighbor ended with a positive for my client. The prosecutor called four (4) of the five (5) police offices on the scene. They established during my cross-examination that the wife was obviously messed up on drugs when the police arrived after the neighbor called to report a domestic assault. The wife gave the officers consent to search the marital home and it was during this search that the police found a few types of drugs and the crack or meth pipe. The wife claimed the drugs but she never saw the pipe because it was in a closed expandable folder and she had been arrested and in the patrol car during part of the search.

I attempted to suppress the pipe during the testimony of the officers. I argued that she could not give consent to search my client's property. Secondly, I argued the police should have obtained a warrant before they opened the closed contained. Normally that is a very good legal basis for an illegal search, but one of the officers 'recalled' that he saw the coke bottle and believed it might be a pipe or something. As much as I disagreed with his testimony and the prosecutor's legal argument, he won the day on that issue and the judge overruled my suppression motion. After the prosecutor rested his case-in-chief I moved for a directed verdict. The judge denied my motion and said there was enough evidence at this point to sustain a conviction.

It was now time for the “hail Mary pass.” I had to do something or as it stood my client would be convicted. I really did not want to call my client as a witness. I have had five (5) felony cases in the past several years where the jury found our client not guilty without the client testifying. So many people have a problem speaking in public and under pressure. But I had to change the course of this trial. There is a rule in the law that you never call a witness if you don’t know what the witness will say. I think it is a fundamentally sound rule, but not always practical.

In a second I made the decision to call the wife. She and her husband, my client, were still not on friendly terms, but I had a feeling about this case. Call it an intuition. I decided to call her and if it went bad or her testimony hurt my client, then I would call my client after she testified to refute her testimony. It was a risky strategy but one I “felt” was good. My “gut” is not always right, but it is right more than it is wrong.

The wife took the witnesses stand and testified begrudging that she was the instigator of the problems. She stated she was high on drugs and would not let her husband leave for work. Every time he got in the truck, she would open the passenger side and jump in to prevent him from leaving. This went on until he grabbed her from behind and pulled her back. This was the action the neighbor saw. She readily admitted that she already pleaded guilty to drug possession and was on the road to recovery. When I asked her about the pipe, I learned something that even my client had never told me. The police testified the pipe was found in an expandable folder and also inside the folder were items like a bankcard and papers with the client’s name on it. The police did not keep any of the paperwork, just the pipe.

The wife testified that she kept the pipe in the expandable folder because it had belonged to her husband’s dad who had lived with them for six (6) months. The dad and her husband had the same names and she said if the officers had looked more closely they could have seen that the middle initial on all the paperwork was not the same as her husband. She said that was the best place to hide her pipe because she knew her husband would never look in the expandable folder. As she testified my client leaned over and whispered, “Merrida, she is right. I forgot that one of the folders in the house was dad’s old folder.” I could not help but give out a slight laugh and say, “I would like to have known that earlier, it would have made my preparation easier, but I think we will be okay now.”

The prosecutor tried to tear into the lady, but it just did not work. There was a deep ring of truth to what she said. I heard it and the judge heard it. My client was found not guilty of both charges.

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