The statute in play prescribed a mandatory jail sentence of 18 months for anyone convicted of carrying a concealed weapon without having a license so to do. No ifs, ands or buts.
A nineteen year old male, with an extensive criminal record well known to the police, was walking with his female date of the same age, in a high crime area. There were two outstanding warrants for his arrest. A gun was in his inside jacket pocket. He did not have a license to carry.
A police officer, riding shotgun in a cruiser patrolling the area, spotted and recognized the male. He directed his partner to pull over, exited the vehicle and gave chase in an attempt to execute the warrant by arresting the suspect.
The male, seeing the rapidly approaching cop, removed the gun from his coat, thrust it at his companion and barked, "put this in your purse!" She, having been unaware of his illegal possession, did as she was told. The cop arrested the male and, pursuant thereto, patted down the woman for weapons and, to further assure his own safety, searched her purse. The gun was found. She was also arrested and charged with illegally carrying a concealed weapon. The matter was tried before me, jury waived. There was little, if any, factual dispute.
As the trial was nearing its end, I began to analyze the case.
Technically, the acts of the defendant fit what the statute condemned, hand in glove.
But was this situation embraced by legislative intent? She had no criminal record. Every crime requires criminal intent. Was this her state of mind at the split second of obeying her companion's command? Was her conduct the true target of the statute's aim? If I found her guilty, I would have no room for leniency in sentencing despite the mitigating circumstances. The statute mandated 18 months IN. I had no discretion.
I found the defendant not guilty.
Any negative reaction, in words or expression, from the prosecutor? None.
Did the District Attorney file an appeal? It was never even considered.
I had done what to me was fair.
And if it was the fair thing to do, it was the right thing to do.
Next case.
Excellent description of a great case, Your Honor!
ReplyDeleteI do agree with your findings, as the law leaves no room for "qualifying" the level of involvement a defendant at the time of the crime.
Thanks for sharing this, Judge. Question... from your very detailed description of the events, it leads one to believe that the handing of the weapon from the guy to his girlfriend was seen by the pursing officer. Is this the case? If so, could that constitute the guy carrying and not her? Does the whole enchilada sit on what the officer finds at the very moment of arrest?
ReplyDeleteWhere did all the good Judge's go, ahhhh here is one! I remember the glory days of trying bench trials in front of you and other fair minded judges who knew the law, the facts, and a sense of the world. I fear that your students now will never have a chance to see fairness in a courtroom again. You were one in a million Judge and its been my pleasure and privilege to have worked both sides of the bench with you. Howard Lewis
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