Guilty or Not Guilty?

[cobber]

I think you may have missed this in the OP:

That's four prepositions in two clauses. I can't count that high without taking my shoes off.

If not visible to BB, then how do we (the State) get to criminal intent? But for BB trying to un-criminate himself with his brainiac statement.

Was he Mirandized, by the way, before he narked all over himself (the real defendant or BB)?

 

[T.Lex]

Been a long time since I did any juvie stuff, but how does Lucky's "admission" get into evidence in BB's case? Only if he testifies, IMHO. The juvie action is confidential, and I think that even means that it can't be admitted at BB's trial.

If BB's trial is before Lucky's, he's going to want to avoid self-incriminating. If BB's trial is after Lucky's, what motivation does he have to testify truthfully? And, even if he is honest that it was his, the prosecutor can still impeach the heck out of him by saying he is sticking up for his friend.

Miranda isn't a big deal because he probably wasn't really in custody at the time.

If you have chance, check out the briefs in Estep - it may be open to additional challenge. But, for now, it is indeed the law of the land.

Based on his failure to STFU, I say he gets convicted of everything, but concurrent sentences/the CHWOL gets "merged" into the shotgun charge (same firearm). Now, his incriminating statement alone isn't enough to get him convicted, because there has to be some corroboration of his statement. But, his identifying it as a 12 g. is probably enough.

Oh, but if there was no sign saying that the u-turn was illegal, then it was legal, and it was a bad stop. (I'm pretty solid on the traffic code.)

Now, if the officer hadn't turned on his lights, and just waited for him to come out, then it would have been a "voluntary" interaction.

IMHO.

 

[TheWabbit]

I have seen jurors convict unsympathetic defendants on relatively little evidence but acquit sympathetic defendants on fairly strong evidence. SVF's normally fall in the decidedly unsympathetic category.

My wife specializes in Immigration Law, a lot of U-Visas and T-Visas. She has also had to deal with a lot of clients that have been in these situations but still think they can get a green card or work authorization. She has a very unfavorable view of most of the subjects in Guy's scenarios.

 

[Femme Assise]

To my understanding, wouldn't big Bill still be held accountable for the actions of the minor, lucky? After all, as he is the supervising adult in this situation, it seems to me that he could be charged with at least felony possession.

 

[cobber]

Been a long time since I did any juvie stuff, but how does Lucky's "admission" get into evidence in BB's case? Only if he testifies, IMHO. The juvie action is confidential, and I think that even means that it can't be admitted at BB's trial.

If BB's trial is before Lucky's, he's going to want to avoid self-incriminating. If BB's trial is after Lucky's, what motivation does he have to testify truthfully? And, even if he is honest that it was his, the prosecutor can still impeach the heck out of him by saying he is sticking up for his friend.

Miranda isn't a big deal because he probably wasn't really in custody at the time.

If you have chance, check out the briefs in Estep - it may be open to additional challenge. But, for now, it is indeed the law of the land.

Based on his failure to STFU, I say he gets convicted of everything, but concurrent sentences/the CHWOL gets "merged" into the shotgun charge (same firearm). Now, his incriminating statement alone isn't enough to get him convicted, because there has to be some corroboration of his statement. But, his identifying it as a 12 g. is probably enough.

Oh, but if there was no sign saying that the u-turn was illegal, then it was legal, and it was a bad stop. (I'm pretty solid on the traffic code.)

Now, if the officer hadn't turned on his lights, and just waited for him to come out, then it would have been a "voluntary" interaction.

IMHO.

Doesn't matter what Lucky said, juvenile or not. BB shot his mouth off and incriminated himself.

BB was in custody, albeit only for an infraction (although the police knew about the gun and probably intended to arrest him if they could develop PC), so before the officer asks the $64,000 question, he'd better Mirandize him. Clearly the officer was looking for incriminating information when he asked the driver about firearms in the car.

Absent suppression of BB's statement, the fact of the gun in the car and BB knowledge of it by his statement would be enough to convict.

 

[Kirk Freeman]

BB shot his mouth off and incriminated himself.

I would argue that he was in custody and no way the statement comes in but sometimes it is a reflex reaction.

"Kirk, someone's been arrested!" *twitches*

 

[Fargo]

BB was in custody, albeit only for an infraction (although the police knew about the gun and probably intended to arrest him if they could develop PC), so before the officer asks the $64,000 question, he'd better Mirandize him.

While contrary to Miranda's "feel free to leave" basis, the courts have (in a somewhat intellectually dishonest fashion) held that being terry-stopped for an infraction does NOT trigger miranda requirements, much the same vein as they don't extend Miranda to an OWI investigation.

Now, if you know that the police believe you have committed a crime, that sometimes gets you there. In this case, it is arguable but I personally doubt you need miranda at the time the guy makes the 12 gauge comment.

Best,

Joe

 

[GuyRelford]

If not visible to BB, then how do we (the State) get to criminal intent? But for BB trying to un-criminate himself with his brainiac statement.

That's why the fact that the shotgun was "sticking out" from under the seat is important, according the the Calvert opinion:

Although Calvert did not have exclusive possession of the Jeep due to there being three passengers, two other circumstances support an inference he knew of the shotgun's presence. First, part of the shotgun was sticking out from underneath the front passenger seat and was plainly visible to Officer Messer when he looked inside the Jeep through the rear passenger door. The jury therefore could have inferred that if Calvert, as the driver, did no more than look behind the front passenger seat, he would have seen the shotgun was there.

And that's why I used the same language in the scenario. (Let me know if it's still confusing - perhaps I can edit out some of the prepositions.)

Keep in mind that this appeal was based on a challenge to the sufficiency of the evidence. That means the jury has already decided as a factual matter that Calvert had the criminal intent to possess the shotgun. The Court of Appeals is just looking for an adequate factual basis in the record to support that finding. The evidence offered by the State that the gun was visible ("sticking out" from under the seat) - and Calvert's incriminating statement - were found to be sufficient evidence to support the conviction.

Guy

 

[GuyRelford]

Been a long time since I did any juvie stuff, but how does Lucky's "admission" get into evidence in BB's case? Only if he testifies, IMHO. The juvie action is confidential, and I think that even means that it can't be admitted at BB's trial.

If BB's trial is before Lucky's, he's going to want to avoid self-incriminating. If BB's trial is after Lucky's, what motivation does he have to testify truthfully? And, even if he is honest that it was his, the prosecutor can still impeach the heck out of him by saying he is sticking up for his friend.

Valid point! But I think the lesson from the Calvert case (and the language of the sawed-off shotgun statute) is that two people may legally "possess" a sawed-off shotgun at the same time, so Lucky's admission didn't really help Big Bill in any event.

(In Calvert, the passenger had already pled guilty to possessing the shotgun.)

Guy

 

[mainjet]

A gun sticking out and being able to be seen is not necessarily actually seen is it?

I mean the officer may have seen it but does that necessarily mean that BB saw it and was aware of it? Maybe the floor was dark and maybe BB didn't look over there. Maybe the office approached with a flashlight in hand and was able to illuminate the floor and see the gun.

My sunglasses were missing from on top of my dash the other day. While driving along I looked the best I could for them but could not locate them. When I finally stopped and leaned over to the floor by the passenger seat I found my glasses in their case. Someone coming up form the passenger side of the vehicle with a flashlight may have very easily seen them from where they were but I did not.

Secondly, if someone showed me a shotgun from a distance or referred to the shotgun, I would probably make the leap to say "the 12 gauge" or I may call it a "shotgun". But that does not make it a 12 ga. nor does it make me correct about it being a 12 ga.. Furthermore, it does not make it mine becuase I called it a 12 gauge.

Had Big Bill been more specific like saying "The pistol grip shotgun is not mine" then I think it holds a bit more weight.