Criminal Law’s Cool - Your Weekly Deep Dive into a Real Criminal Case Guided by New York City Criminal Lawyer Don Murray.
This Week’s Topic: The Automobile Presumption - The Government’s Best Friend
This Week’s Case: People v. Drayton Archer, Decided by Appellate Division, Second Department on March 21, 2018
This week’s deep dive into a Criminal case takes us to lovely Queens County Supreme Court, just steps away from the Shalley and Murray mothership in Kew Gardens. This particular case, hot off the Second Department’s presses caught my eye as a perfect case to review given that I have just recently written an extensive blog post about the automobile presumption very cleverly titled, in my view, “Presumption, Presumption, What’s Your Function?” This is clever if you are about my age (53) and you remember when cartoons were only on Saturdays and you remember “Schoolhouse Rock” spots. If you aren’t my age, it won’t seem as clever.
What this Drayton case illustrates
This case most interestingly illustrates the use of the automobile presumption which generally applies when people are occupants of automobiles in which illegal things like drugs or guns are discovered by the police. This case offers an interesting illustration because it involves a narrow exception to the application of the presumption. Going with me on this deep dive will help you understand the following about the automobile presumption (but in a fun, non technical, easy to understand way):
- What is the automobile presumption?
- When does the automobile presumption apply?
- How does the automobile presumption come up in real life?
- Are there any exceptions to the automobile presumption?
- Why is the automobile presumption so powerful a tool for the Government?
In addition, discussion of this case will also raise some interesting issues about:
- The lack of meaningful discovery in criminal cases in New York
- Practical considerations and strategies in presumption cases
- Practical considerations in settlement of criminal cases
- Sentencing issues in weapons cases in New York
So, get your scuba gear on, and get ready for your guided deep dive tour of this brand new automobile presumption case.
This case began as many automobile presumption cases begin. It began with the police deciding that they needed to pull over a vehicle for some reason.
The opinion in this case is a little stingy with the facts, and only suggests that the police had stopped a vehicle, without letting us know why the police initially decided to stop the vehicle. Maybe it was a simple traffic stop for a small infraction. Maybe it was because the vehicle “fit the description” of a vehicle involved in some other offense. We don’t know for sure.
This reason would really only matter if there had been a suppression hearing, which I am sure there was. Since the case progressed to a trial, it is safe to assume that the judge held a hearing on the initial basis for the stop and that the Judge determined that that initial basis was ok. That means that the basis for the stop, in the view of the appeals court, didn't really matter for their decision.
But whatever the reason for the initial stop, the defendant, who was driving the vehicle, for some reason decided to pull away from the police. He proceeded to take the police on a car chase through Queens, which must have been quite a sight. Having been a criminal defense lawyer for more than 27 years, I have certainly come across many cases where people make efforts to flee the police in cars.
In case you are wondering, it is not generally a good idea.
Even worse, as the defendant led the police on a car chase through Queens, a passenger in the car threw a gun out of his window. The police recovered this gun.
This phenomenon of dropping or throwing bad things while the police are chasing people is a gambit that rarely works out too well for the people involved. I think that often times this is done out of a sense of “if they don’t find it on me, I can’t be arrested for possessing it”.
That would be wrong.
If they see you throw it, and they find it, then they can prove you possessed it. It makes it so that the Government might have to ask a couple more questions of the officer but the law is not so easily defeated. Sorry folks.
So they arrested everyone in the car, driver and passenger alike for criminal possession of a weapon in the second degree. This is a C violent felony that carries a mandatory minimum penalty of 3 1/2 years if you have no criminal history at all. I have reason to believe, however, that the defendant (driver) in this case did in fact have a criminal history, and that his actual mandatory minimum was 7 years upon conviction. And they were looking at up to 15 years. So this was serious business.
Presumably, the Government’s theory was that this gun was communal property of the driver and the passenger(s) possessed by all of them together for the some evil purpose. The case doesn’t provide detail about exactly what the Government thought, if anything particular at all, about what the defendant and the passenger(s) were communally up to. The law actually doesn't always require that the Government necessarily prove some evil purpose either. In most cases, simple possession is enough.
At trial, it looks as if the Government relied on a couple of ways to show this “communal possession” of the gun. One one hand, the Government no doubt relied on the fact that the driver engaged the police in a chase rather than allow the initial stop of the vehicle to proceed. No doubt the Government argued that this was evidence of the driver’s knowledge that there was an illegal gun in the vehicle and that it provided a motive for the driver to do something as extreme as engage the police in a car chase through Queens. And there may have been other similar sorts of evidence that the Government made direct arguments about that would suggest a connection between the driver and the gun. The appellate opinion is silent about that.
Most important for the purpose of this "deep dive," the Government also sought to rely on the automobile presumption to fill any gaps in their proof of possession of the gun that was in the car.
The automobile presumption is a general rule in New York that suggests that if you are in a car, and there is bad stuff also in that car, a jury is allowed to (but not required to) presume that you were aware of the bad stuff and that you were in communal possession of that bad stuff with everyone in the car.
The Government loves the automobile presumption because it allows them an easy way to make their case for possession in an automobile situation where there are multiple occupants of a vehicle. In this case, for example, with the aid of the automobile presumption, the Government doesn’t have to rely on messy arguments like “why on earth would a person flee the police unless he knew about the gun in his car?” This argument is reasonable, but it isn’t perfect, and there are plenty of answers that don’t necessarily require the driver to be actually aware of or responsible for the gun.
How the Automobile Presumption Works Practically in Court
Armed with the presumption, however, the Government gets the Judge to tell the jury directly that if they find that the defendant was in the car and the gun was in the car, it is perfectly OK to decide that the defendant was aware of and possessed the gun. No fuss. No muss.
How much simpler is that? The presumption is the Government’s best and most reliable friend, the dog of legal principles for the Government.
And best of all for the Government, the Judge reads that presumption to the Jury AFTER all the lawyers have made their arguments, so that after the no doubt passionate arguments of defense counsel, the Judge comes to the rescue of the jury and tells them essentially, “Despite what the defense lawyer may have argued to you, if you would rather just presume that the driver knew about and possessed the gun, go for it, but you don’t have to.” Now the judge doesn’t exactly say it like that, but that what’s defense lawyers hear.
Not bad, for the Government eh?
But Here's a Funny Part...
And so quite understandably, at the driver’s trial, the Government asked the Judge to deliver the killer charge about the automobile presumption to the jury.
And the trial Judge, Judge LaTella, agreed to give the jury the killer automobile presumption charge. One sort of funny thing about this is that some of the prosecutors at the Queens District Attorney’s Office have been known occasionally to voice complaints that Judge LaTella gives them a harder time than he ought in Court. But in this case, where the Queens DA’s Office really wanted and expected to get their killer automobile presumption charge, Judge LaTella gave them exactly what they wanted.
The Verdict and Sentence
So the jury gets the automobile presumption charge, and not surprisingly, when offered the opportunity to reduce their thought process to deciding whether or not the driver was in the car and whether the gun was in the car (at some point), the jury seemed to take it. The defendant driver was convicted of the weapons possession charges related to the gun that the passenger threw out the window.
After a delay caused by the defendant's failure tor return to Court for the sentence, he was sentenced to 10 years, three years more than the mandatory minimum.
A Funny Thing Happened on the Way to Appeal
So the defendant appealed the conviction on several grounds. One of those grounds challenged the Judge's charge to the jury about the automobile presumption. And (spoiler alert) it was Judge LaTella's granting of the Government's application for the automobile charge that the Appeals Court found to be wrong. If you remember what I said earlier about how some of the prosecutors in the Queens DA's Office have been heard to voice complaints about Judge LaTella giving them a harder time than he ought, you can almost hear the howls from DA’s Office when the decision in this case came down.
“The 'one time' Judge LaTella does something for us, it gets reversed on appeal.”
So What was the Problem with Reading the Jury the Killer Automobile Presumption Charge?
Why did the Appellate Division think it was wrong of Judge Latella to give the jury the automobile presumption instruction at the end of the case? I mean after all, it would seem pretty obvious that the Government was entitled to it, right? They presented some credible evidence that the gun was in the car at some point and they presented some credible evidence that the defendant was in the car at the same time. He was, after all, the driver.
But the problem here, and you have to appreciate the argument of defense counsel, was that the defense counsel objected to the reading of the presumption on the grounds that because of the operation of a narrow exception to the automobile presumption, the presumption did not apply.
Under our law, a small crack in the universal application of the automobile presumption has developed. That crack has to do with situations where the item in question is recovered in what amounts to the unquestioned sole possession of one of the occupants of the vehicle. The easy case is where an occupant of the car is found to be in possession of a gun in his pocket, and everyone agrees without question that this is exactly what happened.
Now even in this situation, it doesn’t mean that the Government still can’t claim that the gun is communally possessed by everyone in the car. It just means that the Government won’t be able get the Judge to give the killer automobile presumption charge to the jury. It means the Government will be left without its old and best friend, the automobile presumption, and actually have to rely on…evidence. Heavens to Betsy.
Kind of reading between the lines of the opinion, what I imagine went on in this case is that the defense lawyer at the pretrial suppression hearing, probably with this potential crack in the case in mind, carefully crafted his or her cross examination of the police officer(s) with a view toward establishing that they saw the passenger throw the gun out the window. My guess is that there were quite a few questions that were framed with the words “when the passenger threw the gun out the window…” or “before the passenger threw the gun out the window…” and similar constructions to fix the transcript on the concept that the person being observed throwing the gun out the window was the only person observed in possession of the gun.
This is perhaps a safer approach than simply asking the officer at the suppression hearing, “Isn’t it true that the only person in possession of the gun was the passenger?” The problem with simply blurting out that ultimate critical question to the police officer up front is that the officer might balk at such a definitive statement. The officer may get the sense that the defense lawyer wants a “yes” answer to that question, and will therefore assume that it is favorable to the defense - thus triggering a reflexive retreat into vagueness or worse still something extremely damaging like, “well I saw the driver look down and then say something to the passenger, who then reached somewhere and threw the gun out the window” or “well I did see the driver make some sort of furtive gesture toward the passenger”. Not all witnesses will volunteer bad information intentionally designed to hurt the defense lawyer, but it is a common enough occurrence that you need to be careful of it.
Ideally, you want to be able to make arguments that don’t require the Judge or jury to disbelieve the police officer. It is simpler if everyone can agree on the basic facts and then you get to argue a reasonable interpretation of those facts, as opposed to arguing that the witness is a liar, and then that the facts are something else, and then that the reasonable interpretation of those facts is favorable to the defense.
Therefore, in this case, it is likely that the defense lawyer was extremely mindful of questioning of the officers at the suppression hearing with regard to testimony about the observations of the gun. If even one statement by an officer called into question that any observations could have suggested some direct involvement of the driver in the handling of the gun, then the defense argument on this point is transformed into a credibility issue. This is a much tougher road to travel as a defense lawyer.
The solution to this is not to ask the ultimate question, but instead ask quite a few questions around it, ideally using the officer’s own words about having seen the passenger throw the gun out of the window in the question itself.
It could also be that the defense lawyer never considered the issue of the presumption and the argument that maybe the presumption ought not apply until after the suppression hearing while prepping for trial.
This might have occurred because the discovery rules in criminal cases in New York are so horrific that as a defense lawyer you often know very little about a case in terms of nitty gritty details until just before the pretrial hearings begin. That’s because in New York, as a criminal defendant, you are entitled to next to nothing of substance from the Government until a pretrial hearing, and even at the pretrial hearing you are only entitled to police reports and prior testimony of only the witness or witnesses who testify at the pretrial hearing. It is quite possible and perfectly legal in New York in a criminal case to start a trial with no significant police reports or prior testimony. Tell the most seasoned and successful civil lawyer that he or she must start a trial without any discovery and it will reduce him or her to tears. This is the standard world of criminal defense in New York State.
So it might not have been until during the hearing that the defense lawyer encountered the possibility that the only direct evidence about the physical possession of the gun was that it was in the hands only of the passenger. And it may not have been until trial prep, after the hearing, that it dawned on the defense lawyer the significance of this and potential for a crack at some kind of defense.
Quite likely the defense lawyer had been assuming that the automobile presumption was a mathematical certainty in the case - because it usually is. Therefore, the notion that there might be an issue concerning whether the automobile presumption would apply may not even have developed until the trial preparation phase of the case.
The Stakes of the Decision about Whether the Automobile Presumption Applies
The importance of identifying the possibility of an exception to the automobile presumption cannot be overstated and in fact is arguably perfectly demonstrated by this very case we are studying.
If the Judge reads the jury the automobile presumption, the Government need only prove that the gun was in the car at the same time that the defendant (driver) was in the car. Once the Government establishes those things, which in this case are easy, the Judge will advise the jury that if they so choose, their work is done, and they are free to find the defendant guilty of the weapons possession charges.
If, however, the Judge decides that the automobile presumption does not apply, the Government must rely on evidence that it can point to for the argument that the driver must have known about and communally possessed the weapon with the passenger. This makes things much harder for the Government. Now in this case, the Government could probably make the case that the driver sped off and took the police on a chase because he knew there was a gun in the car. But if that is the only fact, and the only argument, you have to like the defense lawyer’s chances. There can be plenty of reasons someone might take the police on a chase (few of them good, perhaps) that don’t necessary mean that he knew his passenger had a gun. With proof beyond a reasonable doubt as a powerful shield, and as long as the Judge doesn’t totally undercut the defense by reading the Automobile Presumption charge, there is hope for the defense.
Therefore, the stakes on this issue were high.
When do you know as the defense lawyer whether the judge will read the killer automobile presumption charge to the jury?
The Judge’s decision about whether or not to read the automobile presumption charge is made after a “charge conference” that takes place at the conclusion of the trial. At this charge conference, the Judge reviews the general charges about the law that he or she intends to give and allows the lawyers to suggest additional charges or to object to charges sought by each other.
At the charge conference in this case, no doubt there was significant debate when the defense objected to the automobile presumption charge.
The defense would likely have argued that the evidence at trial only supported the conclusion that the passenger possessed the weapon. The argument would have been that the evidence presented at trial by the Government’s own witnesses was such that the weapon was in the exclusive possession of the passenger (until the passenger threw the weapon out of the window).
The Government likely argued that the balance of the evidence, especially regarding the fact that the driver led the police on a car chase after a car stop, provided facts from which it could be said that the possession of the weapon was ambiguous or communally possessed by all the occupants of the vehicle. The Government likely took the position that it should be up to the jury to decide whether those additional facts merited abandoning the automobile presumption. Since the automobile presumption is permissive, the Government likely took the position that it couldn’t hurt to allow the jury access to it if it found that the facts merited it and then decide whether to employ it.
But whatever the arguments were, the trial judge granted the Government’s request on the automobile presumption and over ruled the defense objection. The jury heard the automobile presumption and returned a guilty verdict.
The Appeals Court Reverses the Case on the Automobile Presumption Issue
But the Appellate Division, Second Department determined that the Government, on the facts of the case, given that the only direct evidence was that the passenger possessed the weapon, was not entitled to the automobile presumption charge. Since, as the Appellate Division noted, it is impossible to know whether the jury employed the presumption it shouldn’t have had in the first place, the verdict was overturned and the case returned to Court for a new trial.
Don’t be tempted to imagine that the defendant simply “goes free” because his case was reversed on appeal. It actually is rare for a case overturned on appeal to result in a complete dismissal.
On the other hand, the fact that a case is reversed on appeal and sent back for a new trial does not necessarily mean that the case will be tried again either.
Often times the desire on the part of the Government to revisit an old trial is less than extreme. Likewise a defendant is not often motivated to endure another trial. Sometimes, this unified desire not to have to try the case again can result in settlements being reached. The time for appeal is usually around two years, so in many cases settlements are reached that amount to a kind of “time served” arrangement. In this case, such a settlement would be difficult to structure because it appears the defendant is a predicate felon and therefore it will be hard to find a legal settlement that could result in a two year or less sentence. Also, the Government may be sufficiently motivated to take the case back to trial since the witnesses are police officers who are easier to locate and convince to come to court to testify.
But if there is a trial, and if the evidence remains the same regarding the connection of the driver to the weapon, the Government will not get the benefit of the automobile presumption. One concern I would have, however, would be if the Government is able to find some additional form of evidence that might serve to provide a connection between the driver and the weapon that would serve as the basis to give the automobile presumption charge once again. For example, what if the passenger were to testify at the new trial that the gun was "their gun"?
But in the absence of the automobile charge, the defense will likely have a substantially increased chance of success. I would be concerned obviously about the defendant leading the police on an ugly chase through the streets of Queens, but who knows?