v.
High Court of
Trial Division
CR No 26-97
January 9, 1998
[2ASR3d59] [1] A new trial may be
granted to a criminal defendant him if required in the interests of justice.
[2] The court should set aside a guilty verdict
only if the evidence weighs heavily enough against the verdict that a
miscarriage of justice may have occurred, not merely because the court might
have reached a different result.
[3]
Although other individuals occupied premises, where evidence substantiated
conclusion that defendant was in charge and control of the searched premises
and its contents, including the substantial quantity of growing and harvested
marijuana there, the evidence was sufficient to find beyond a reasonable doubt
that the defendant produced the seized marijuana.
[4] Where government’s case is based on more than
just a defendant’s presence, and the jury is properly instructed on all
elements of the crime, then a ‘mere presence’
instruction is unnecessary.
[5] An
evidentiary hearing to review probable cause for a search warrant is only
mandated where a defendant alleges deliberate falsehood or reckless disregard
for the truth, and can support those allegations with an offer of proof.
[6] Where defendant sought an in camera hearing
to test the reliability of the government’s confidential informant, he was required
to make a substantial preliminary showing that (1) the affiant deliberately or
recklessly included a false statement in the affidavit submitted in support of
the search warrant, and (2) the
fallacious statement was material to the issuing judge’s finding of
probable cause.
[7] The presumption of the validity of an
affidavit supporting a search warrant cannot be overcome by a self-serving
statement purporting to refute the affidavit.
Before
Counsel: For Plaintiff, John W, Cassell,
Assistant Attorney General
For Defendant,
Loretta Townsend, Assistant Public Defender
ORDER DENYING MOTION FOR NEW TRIAL AND MOTION FOR
RECONSIDERATION OF ORDER VACATING IN CAMERA HEARING
[2ASR3d60] On October 7, 1997, the jury in this prosecution
convicted defendant Abe Samana (“Samana”)
of the crimes of production of the controlled substance of marijuana and
possession of the controlled substance of marijuana, and acquitted him of the
crime of assault in the first degree. On
On
Discussion
I. Motion for
New Trial
Samana argues in support
of his motion for a new trial that: (1) no rational trier
of fact could have found him guilty of the crime of production of marijuana;
and (2) the court improperly instructed the jury.
[1] T.C.R.Cr.P. 33 states that
“[t]he court on motion of a defendant may grant a new trial to him if required
in the interest of justice.”
This motion is not one that is granted lightly. See, e.g., United States v. Morales, 902 F.2d
604, 605 (7th Cir. 1990) (“A jury verdict in a criminal case is not to
be overturned lightly, and therefore a Rule 33 motion is not to be granted
lightly.”). [2ASR3d61]
A. Sufficiency of the Evidence
[2] When a
motion for new trial is based on the sufficiency of the evidence, the court
should weigh the evidence and consider the credibility of the witnesses. We
should set aside the verdict only if the evidence weighs heavily enough against
the verdict that a miscarriage of justice may have occurred, not merely because
the court might reach a different result.
[3]
B. Jury Instruction
[4] Samana requested that the
court instruct the jury that the mere presence at a place where marijuana is
found, without more, is not enough to convict. He based this request on People v. Negrete-Gonzales, 966 F.2d 1277 (9th Cir. 1992). However, in Negrete-Gonzales, the court stated, “[i]f the government’s case is based on more than just a
defendant’s presence, and the jury is properly instructed on all elements of
the crime, then a ‘mere presence’ instruction is unnecessary.”
The
Government’s case was built on evidence of Samana’s
control of the searched premises and the marijuana there. The mere presence
instruction was not appropriate, and the jury was properly instructed on all
elements of the crime.
II. Motion for Reconsideration of Order Vacating
In Camera Hearing
The Government used information from a confidential informant
to obtain the search warrant that led to the seizure of the marijuana and other
items, and then Samana’s prosecution. Samana
wants an in camera hearing to test the confidential informant’s
reliability. [2ASR3d62]
[5] As we stated
in the Order Denying Motion for In Camera Hearing, issued on
[6] Samana was required to make
a substantial preliminary showing that (1) the affiant deliberately or
recklessly included a false statement in the affidavit submitted in support of
the search warrant, and (2) the
fallacious statement was material to the issuing judge’s finding of
probable cause. See
[7] We find
that the affidavits submitted by Samana in support of
the present motion are not a substantial preliminary
showing of these factors and that they do not warrant an in camera hearing
with the confidential informant. Samana now offers
new affidavits by
The
affidavits, submitted at this late date, do not alter our previous reasoning or
conclusions regarding the propriety of holding an in camera hearing with
the confidential informant.
Order
1. The motion for a new trial is denied.
2. The motion for reconsideration of the order
vacating in camera hearing is also denied.
**********