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Defendant acquitted of 7 year minimum mandatory prison drug charge


In State v. H.M., 99-3838-CF, H.M. was arrested and charged with his co-defendant, S.L., with Trafficking in Cocaine over 200 grams, a crime which carries a “minimum mandatory” penalty, if convicted, of seven (7) years in the Department of Corrections, as well as a $100,000.00 fine—also a minimum mandatory.

The evidence against H.M. was overwhelming—in part because the cocaine allegedly purchased by H.M. and S.L. was provided by a very “reliable source”, the St. Lucie County Sheriff’s Office!

H.M. and S.L. were vicitims of what is known as a “reverse sting”, where law enfocement actually sells contraband to unsuspecting citizens.

The narrative in the arrest affidavit made it all sound so simple. “The Sheriff’s Office SIU (Special Investigations Unit) became aware that 2 subjects from Georgia wanted to purchase nine (9) ounces of cocaine…after a price for the cocaine was set, S.L. got H.M. and brought him to U.C. (undercover) officer’s vehicle . H.M. and S.L. both looked at the cocaine, then they went back to the car and H.M. got the money out of the car and set it on the back of the truck and Lang took the cocaine. They were then all arrested for Trafficking”.

What the arrest affidavit did not say was that for the two (2) weeks prior to the meeting where the cocaine and the money were exchanged, (within sight of approximately a dozen police officers) the “SIU” had initiated scores of telephone calls with S.L., where, S.L. claimed, the police “entrapped” him into making the trip from Georgia to Fort Pierce to complete the purchase of cocaine.

H.M. however, was not legally permitted to argue that he had been entrapped, because all of the phone conversations were made with S.L., and not with H.M.

Board Certified Criminal Trial Lawyer Jay Kirschner argued to the jury however, that even though H.L. had the cocaine literally in his hands at the moment of the arrest, that he did not actually “possess” the contraband. In closing argument, H.M.’s lawyer argued to the jury that the cocaine no more belonged to H.M. than groceries carried from a supermarket were the property of the bag boy who carries the groceries to the car.

Although the argument partially blurs the distinction between the concepts of “possession” and “ownership”, the jury accepted the argument, and in less than two (2) hours of deliberations, returned a verdict of NOT GUILTY as to both S.L. and H.M.

No seven (7) year minimum mandatory prison term. No $100,000.00 fine. Freedom.

The prosecutor, upon hearing the verdict, placed her head on the counsel table and began to sob.

Justice had prevailed.

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