I recently argued a case in the 8th District Court of Appeals where my client had been convicted in the trial court of aggravated robbery, kidnapping, and a firearm specification.
This was one of those cases where I desperately wished I had been involved sooner because there were a lot of things I would have done differently at the trial. But, I was not brought in until the appeal, and at that point, the job is pretty much to stop the bleeding.
So I set out to try to stop the bleeding. Some interesting things about the case: My client was involved in a robbery with two other individuals, but my client was the only one apprehended and indicted. So he was taking the fall for everything.
Another interesting fact is that the victim was very clear that one of the other individuals had the gun, no my client. But my client was convicted of a firearm specification that added three years to his sentence.
To define a firearm specification simply, it means that a defendant must have had a firearm on or about his person in the commission of an offense. You see firearm specifications added a lot in aggravated robbery cases.
So I argued that it was improper for my client to have been convicted of a firearm specification when the victim was clear in her testimony that another individual had the gun- my client had absolutely no contact with the gun, and never acknowledged, or told the other individual to use it.
The State argued that as my client searched the victim’s pockets, the other individual pressed the gun into the victim’s stomach, arguing that meant that my client had control over the gun. This is really a constructive possession argument. Constructive possession is the idea that one need not have actual physical control over an object to possess it- exercise dominion and control over that object is enough. We already see the constructive possession theory running rampant in traffic stops where drugs are found. Whose drugs are they the police say? They are everyone’s! Everyone in that car has constructive possession over those drugs under the seat.
In order to make the State’s argument, we have to make a lot of assumptions- we have to assume my client knew the other guy had the gun, and that he had ordered the other guy to use it when my guy was going through the pockets- we have to assume a lot. We have to assume he exercised dominion and control over the gun.
That’s dangerous territory, especially when we are adding three years to a prison sentence.
In a few weeks I should receive the appellate decision- we will see how the court ruled.