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Dwayne B.
Dwayne B., Lawyer
Category: Criminal Law
Satisfied Customers: 27091
Experience:  Numerous criminal trials ranging from traffic to murder, practicing Criminal Law for 20+ years.
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In a motion to suppress evidence hearing a defendant requested

Resolved Question:

In a motion to suppress evidence hearing a defendant requested the internal police records for a complaint he had filed concerning racial profiling during a stop and arrest where a mj pipe was allegedly found. The judge read the records in camera but denied access to the records by the defendant. The judge later said he found nothing in the records that was inconsistent with the officers' testimony. The defendant is now on appeal pro se. Can the fact that he did not have a chance to see those records be considered an error by the court? Also should that record the trial judge read in camera be sent to the appeal court?
Submitted: 2 years ago.
Category: Criminal Law
Expert:  Dwayne B. replied 2 years ago.
Yes to both. The records should be a part of the case on appeal and the fact that the defendant did not have access to them could be error. The defendant will want to stress that the records may have been important for a number of reasons, not just to show inconsistencies in the officer's statement, but also training, complaints, etc. and that without them it equated to a denial of a fair trial.

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Customer: replied 2 years ago.
In this case those records are not on the "completion of record index" made up by the court clerk. What can be done? and what happens if the appellant claims not being allowed to view the record an error but record does not get to the appeal court?
Expert:  Dwayne B. replied 2 years ago.
File a Request for Supplement to Appellate Record and specifically identify the documents. If you can't get them to the Court of Appeals then it greatly decreases your chances.

If you would like any additional information or have more questions please don’t hesitate to ask but please do so my clicking on the Reply to Expert tab.

We work for Positive Ratings, please click on one of the top three ratings or one of the Smile Faces, as this would be appreciated. We have recently implemented a new rating and feedback system. Please be aware that you are rating my courtesy and service as a professional, and not necessarily whether you like the information that you are receiving. Please bear in mind I can’t control what the law is and whether it helps you, I can only tell you what it says, and I assume you want truthful information.

PLEASE DO NOT use the rating system to ask for more information or in an attempt to tell the website that you didn’t like the substance of the answer as it gives a NEGATIVE rating to me personally if your rating is one of the lower two.

I believe in giving information that is to the point, but please remember that I can only base our answers on the information you provide and sometimes a misunderstanding as to what you are looking for or already know occurs so feel free to ask additional questions or for clarifications. Be very careful about looking at other internet sites that just post generic information without any inquiry into your facts because often those answers are dated, wrong, or wrong as applied to your facts. Please be aware that my answer is not legal advice, it is merely information. You should always contact a local attorney for legal advice.

Several customers have asked how they direct a question to me in particular. If you specifically want me to provide information for you just put “FOR JD 1992” in the subject line and I will pick up the next time I am online.
Dwayne B., Lawyer
Category: Criminal Law
Satisfied Customers: 27091
Experience: Numerous criminal trials ranging from traffic to murder, practicing Criminal Law for 20+ years.
Dwayne B. and 6 other Criminal Law Specialists are ready to help you
Customer: replied 2 years ago.


The defendant asked the court clerk that handles appeal issues about the PD internal investigation record first part of Aug. She said it was not included as part of the file because it was not given to her. She said she talked to the judge (after defendant asked her about it) and he had it under lock and key in his office. Back near the end of March the judge wrote an order saying he found nothing irregular in the record and access to the defendant was denied but the record would remain sealed and become a part of the file for this case. BotXXXXX XXXXXne is he did not let court clerk's office know about it. Four months have passed since the judge said the record would be a part of the file. The judge just wrote an order a few days ago to have the court clerk unseal the record to make copies and send original to appeal court. The court clerk just made a supplement to the record and supposedly mailed that to appeal court clerk and defendant a few days ago. But on the supplement index where it asked the date the record was filed with the court clerk she put N/A instead of the date she received it which was around mid Aug. (The judge wrote is order to unseal Aug 13) So I am wondering is that a problem with the 4 month gap where no one is saying officially where this record was. The judge does not say in his order and the court clerk does not give a date when she received it.

Expert:  Dwayne B. replied 2 years ago.
At this point it wouldn't be a problem. If the Court of Appeals raises it as an issue you can address it then.


If you would like any additional information or have more questions please don’t hesitate to ask but please do so my clicking on the Reply to Expert tab.

We work for Positive Ratings, please click on one of the top three ratings or one of the Smile Faces, as this would be appreciated. We have recently implemented a new rating and feedback system. Please be aware that you are rating my courtesy and service as a professional, and not necessarily whether you like the information that you are receiving. Please consider clicking "BONUS" as a nice way of saying "thanks" for a job well done, although this is neither required nor expected. When looking at the answer I ask you to bear in mind I can’t control what the law is and whether it helps you, I can only tell you what it says, and I assume you want truthful information.

PLEASE DO NOT use the rating system to ask for more information or in an attempt to tell the website that you didn’t like the substance of the answer as it gives a NEGATIVE rating to me personally if your rating is one of the lower two.

I believe in giving information that is to the point, but please remember that I can only base our answers on the information you provide and sometimes a misunderstanding as to what you are looking for or already know occurs so feel free to ask additional questions or for clarifications. Be very careful about looking at other internet sites that just post generic information without any inquiry into your facts because often those answers are dated, wrong, or wrong as applied to your facts. Please be aware that my answer is not legal advice, it is merely information. You should always contact a local attorney for legal advice.

Several customers have asked how they direct a question to me in particular. If you specifically want me to provide information for you just put “FOR JD 1992” in the subject line and I will pick up the next time I am online.
Dwayne B., Lawyer
Category: Criminal Law
Satisfied Customers: 27091
Experience: Numerous criminal trials ranging from traffic to murder, practicing Criminal Law for 20+ years.
Dwayne B. and 6 other Criminal Law Specialists are ready to help you
Customer: replied 2 years ago.

The defendant personally received a copy of the sealed PD internal investigation record a couple of days ago. Isn't this odd that the judge is now allowing the defendant to see the record after the trial is over?


 


Also there were statement by the interviewing officer about how he felt the defendants credibility was low because defendant said in his written statement the pipe could be used for any kind of tobacco but the lab test showed the substance contained thc. So in this statement the judge is reading all of this information in camera and the defendant had to chance to cross examine the officer about his statements. In addition the officer never asked the Sgts why they wanted to search the defendant in the first place which was a central issue in the complaint. Isn't there some law against judges getting evidence that supports the states position but not letting the defendant know about it?


 


In this situation the judge found out about the test results from the lab through this officer but this lab tech never appeared in court for cross examination. So there are two people the the defendant surely would have wanted to cross examine, the officer and the lab tech, if he had been given a chance to see this report doing trial. This seems very wrong. What is your opinion?

Expert:  Dwayne B. replied 2 years ago.
It is unusual but realistically the Appeals Court would order that you be allowed to see it because you can't address it on appeal if you don't know what it contained.

No, there is no law about the judge letting the defense know about state's evidence. The law presumes that a judge would disregard it if it was inadmissible and the law only requires that the defendant be made aware of any exculpatory material under Brady v. Maryland.

I believe that no one should have been allowed to testify about a lab test and that it was not admissible unless the lab tech testified.


If you would like any additional information or have more questions please don’t hesitate to ask but please do so my clicking on the Reply to Expert tab.

We work for Positive Ratings, please click on one of the top three ratings or one of the Smile Faces, as this would be appreciated. We have recently implemented a new rating and feedback system. Please be aware that you are rating my courtesy and service as a professional, and not necessarily whether you like the information that you are receiving. Please consider clicking "BONUS" as a nice way of saying "thanks" for a job well done, although this is neither required nor expected. When looking at the answer I ask you to bear in mind I can’t control what the law is and whether it helps you, I can only tell you what it says, and I assume you want truthful information.

PLEASE DO NOT use the rating system to ask for more information or in an attempt to tell the website that you didn’t like the substance of the answer as it gives a NEGATIVE rating to me personally if your rating is one of the lower two.

I believe in giving information that is to the point, but please remember that I can only base our answers on the information you provide and sometimes a misunderstanding as to what you are looking for or already know occurs so feel free to ask additional questions or for clarifications. Be very careful about looking at other internet sites that just post generic information without any inquiry into your facts because often those answers are dated, wrong, or wrong as applied to your facts. Please be aware that my answer is not legal advice, it is merely information. You should always contact a local attorney for legal advice.

Several customers have asked how they direct a question to me in particular. If you specifically want me to provide information for you just put “FOR JD 1992” in the subject line and I will pick up the next time I am online.
Customer: replied 2 years ago.


You stated "I believe that no one should have been allowed to testify about a lab test and that it was not admissible unless the lab tech testified." So how does the defendant say this was error? Does he say it was error because the officer gave lab test results via the internal investigation record viewed by the judge but he nor the lab tech showed up to testify?

Expert:  Dwayne B. replied 2 years ago.
Was the report admitted into evidence? If not, how did the judge get information on the lab results and how is that indicated in the record?
Customer: replied 2 years ago.


The report was not admitted into evidence. The judge got information about the lab test results simply by the investigating officer saying in his report " ..I had the pipe sent to the OSBI for analysis. When I recieved the OSBI return, I found the pipe tested positive for Cannabis (Marijuana containing Tetrahydrocannabinol), schedule I..."

Expert:  Dwayne B. replied 2 years ago.
Did the judge indicate anywhere that he had considered the lab report?
Customer: replied 2 years ago.


He did not say he considered the lab test results but during sentencing he ask the prosecutor "there was an OSBI test wasn't there?" the prosecution


"yes" Judge "ok, there will also be $150 charge for that test.." But whether he said he considered it or not he is a human being and I think any rational person would consider it. He did say he felt all points had been proven beyond a reasonable doubt and I don't see how he could have come to that conclusion without considering those test results because there were no field test performed.


 

Expert:  Dwayne B. replied 2 years ago.
Generally, the law says that a judge disregards XXXXX XXXXX aren't entered into evidence or are not admissible. I agree that is BS, but that is the presumption that the law favors.

If there is no evidence to support the verdict other than the lab report then you would argue it in the alternative as in "Point One: There was no evidence or insufficient evidence to support the verdict because..." and "Point Two: To arrive at this verdict the judge must have considered evidence that was not admitted and not provided to Defendant, specifically the lab report..."


If you would like any additional information or have more questions please don’t hesitate to ask but please do so my clicking on the Reply to Expert tab.

We work for Positive Ratings, please click on one of the top three ratings or one of the Smile Faces, as this would be appreciated. We have recently implemented a new rating and feedback system. Please be aware that you are rating my courtesy and service as a professional, and not necessarily whether you like the information that you are receiving. Please consider clicking "BONUS" as a nice way of saying "thanks" for a job well done, although this is neither required nor expected. When looking at the answer I ask you to bear in mind I can’t control what the law is and whether it helps you, I can only tell you what it says, and I assume you want truthful information.

PLEASE DO NOT use the rating system to ask for more information or in an attempt to tell the website that you didn’t like the substance of the answer as it gives a NEGATIVE rating to me personally if your rating is one of the lower two.

I believe in giving information that is to the point, but please remember that I can only base our answers on the information you provide and sometimes a misunderstanding as to what you are looking for or already know occurs so feel free to ask additional questions or for clarifications. Be very careful about looking at other internet sites that just post generic information without any inquiry into your facts because often those answers are dated, wrong, or wrong as applied to your facts. Please be aware that my answer is not legal advice, it is merely information. You should always contact a local attorney for legal advice.

Several customers have asked how they direct a question to me in particular. If you specifically want me to provide information for you just put “FOR JD 1992” in the subject line and I will pick up the next time I am online.
Dwayne B., Lawyer
Category: Criminal Law
Satisfied Customers: 27091
Experience: Numerous criminal trials ranging from traffic to murder, practicing Criminal Law for 20+ years.
Dwayne B. and 6 other Criminal Law Specialists are ready to help you

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