I N D E X

INDEX......................................................................................................................................................................................................................... 1

TABLE OF AUTHORITIES....................................................................................................................................................................................... 2

ISSUE PRESENTED................................................................................................................................................................................................ 3

STATEMENT............................................................................................................................................................................................................. 4

ARGUMENT.............................................................................................................................................................................................................. 5

TABLE OF AUTHORITIES

Cases

State v. Cherry, 361 S.C. 588, 606 S.E.2d 475 (2004)...................................................................................................................................... 7

State v. Hernandez, Unpublished Opinion No. 2007-UP-183, filed April 18, 2007.......................................................................................... 4

State v. Hudson, 277 S.C. 200, 284 S.E.2d 773 (1981)..................................................................................................................................... 7

State v. Kimbrell, 294 S.C. 51, 362 S.E.2d 630 (1987)...................................................................................................................................... 7

State v. McCombs, 368 S.C. 489, 629 S.E.2d 361 (2006)................................................................................................................................. 6

State v. Mitchell, 341 S.C. 406, 535 S.E.2d 126 (2000)...................................................................................................................................... 7

ISSUE PRESENTED

The lower courts erred by refusing to direct verdicts acquitting the three codefendants of trafficking in marijuana, since the State established nothing at trial other than mere presence and baseless suspicion.

STATEMENT OF FACTS

On March 22, 2004, an Edgefield County grand jury indicted Rafael Hernandez, Honorio Guerrero and Alfredo Avila-Arjona, as well as a fourth defendant, Fredy DeLeon, for trafficking in approximately 900 pounds of marijuana.  The four men stood trial before Judge William P. Keesley and a jury June 28 through July 6, 2004.  The jury found all four guilty and the judge sentenced them each to imprisonment for twenty-five years.

On direct appeal to the Court of Appeals, counsel argued:

The trial judge erred by refusing to direct verdicts acquitting the three codefendants of trafficking in marijuana, since the only thing the State’s evidence proved was that they were merely present and had no knowledge that others were transporting the drug by hiding it in cheap Mexican furniture.

The Court of Appeals affirmed.  See State v. Hernandez, Unpublished Opinion No. 2007-UP-183, filed April 18, 2007.  The Court denied rehearing June 28, 2007.

On July 30, 2007, counsel petitioned this Court for writ of certiorari on the directed verdict issue.  The Court issued the writ by order dated April 3, 2008.

ARGUMENT

The lower courts erred by refusing to direct verdicts acquitting the three codefendants of trafficking in marijuana, since the State established nothing at trial other than mere presence and baseless suspicion.

Federal narcotics agents intercepted an eighteen-wheeler entering the United States from Mexico at Laredo.  Inside the truck was approximately 900 pounds of marijuana hidden in cheap Mexican knock-off furniture.  The shipment was bound for Fredy DeLeon’s Tienda DeLeon in Trenton, South Carolina.  The feds replaced the truck’s original driver with their own and headed to Trenton. 

Once there, a portion of the furniture was unloaded at Tienda DeLeon.  DeLeon directed the driver to transport the rest to Billy’s Super Store, also in Trenton.  Hernandez, Guerrero and Avila-Arjona entered the picture at this point.

While these events were transpiring, Guerrero rented a Ryder truck in Rock Hill.  ROA p. 471, lines 13-18.  He, Hernandez and Avila-Arjona then drove to Trenton.  The three men were (as the current terminology goes) illegal aliens who spoke little English.  ROA p. 190, lines 7-9.  When they met the eighteen-wheeler on the road between Tienda DeLeon and Billy’s Super Store, they were promptly arrested.  ROA p. 378, line 17 – p. 379, line 13.  (The actual drug dealers fled and were never apprehended.)  That, in a nutshell, was the State’s case against Hernandez, Guerrero and Avila-Arjona.

There was no evidence connecting them to the eighteen-wheeler.  Nor was there any evidence connecting them with Fredy DeLeon.  ROA p. 397, lines 3-6; ROA p. 478, lines 8-16.  They were not at Tienda DeLeon when some of the furniture was unloaded.  ROA p. 447, lines 12-17. 

In fact, there was no evidence they ever saw the inside of the eighteen-wheeler or knew what it contained.  ROA p. 343, lines 18-25; ROA p. 430, lines 15-24.  Even if they had, the merchandise would have appeared to be “legitimate cargo.”  ROA p. 401, lines 6-15.  Neither Hernandez, Guerrero nor Avila-Arjona unloaded anything from that truck.  ROA p. 660, lines 4-6. 

The authorities did not bother with much in the way of an investigation.  ROA p. 505, lines 7-15.  For example, they did not check Guerrero’s cellphone for incoming and outgoing calls because, one officer testified lamely, “the battery went dead on it.”  ROA p. 632, lines 3-7.  (It apparently never occurred to investigators to recharge the phone.  ROA p. 669, lines 21-24.)

With remarkable candor, an investigator with the Edgefield County Sheriff’s Department revealed the true reason Hernandez, Guerrero and Avila-Arjona were being prosecuted:

Q. [Y]ou had all this marijuana.  You had to arrest somebody, didn’t you?

A. That’s it.  I wasn’t gonna let 905 pounds of marijuana walk outta Edgefield County.

ROA p. 698, line 24 – p. 699, line 2.  Who better to take the fall than three clueless Mexicans already in the country illegally?

At the conclusion of the State’s case, counsel for the three codefendants moved for directed verdicts of acquittal on the grounds the State had proved no more than mere presence and had completely failed to prove “the knowledge element.”  ROA p. 793, line 8 – p. 795, line 24.  The judge denied the motions.  ROA p. 795, line 25 – p. 796, line 4.  Counsel unsuccessfully renewed the directed verdict motions at the conclusion of Fredy DeLeon’s case.  ROA p. 830, lines 1-15.  (Neither Hernandez, Guerrero nor Avila-Arjona offered any evidence.) 

A defendant is entitled to a directed verdict when the State fails to produce any evidence of the offense charged.  State v. McCombs, 368 S.C. 489, 629 S.E.2d 361 (2006).  When considering a directed verdict motion, the trial judge is concerned with the existence or nonexistence of evidence, not its weight.  State v. Cherry, 361 S.C. 588, 606 S.E.2d 475 (2004).  This is so even where the State relies exclusively on circumstantial evidence.  Id.  The judge should grant a directed verdict when the evidence merely raises a suspicion the accused is guilty.  State v. Mitchell, 341 S.C. 406, 535 S.E.2d 126 (2000).

Proof of constructive possession requires a showing that the accused had dominion and control over either the drugs or the location where the drugs were found, as well as knowledge of the presence of the drugs.  State v. Hudson, 277 S.C. 200, 284 S.E.2d 773 (1981).  Mere presence in an area where drugs are found does not constitute constructive possession.  State v. Kimbrell, 294 S.C. 51, 362 S.E.2d 630 (1987).  

Viewing the evidence in the light most favorable to the State, it proved that somebody had hired three hapless illegal aliens – Hernandez, Guerrero and Avila-Arjona – to rent a truck and help move furniture.  Although the three men arrived on the scene just in time to be arrested, the record is devoid of any evidence from which it could be inferred that they knew marijuana was hidden inside the furniture carried by the eighteen-wheeler or that they had even seen the inside of the truck.  The authorities’ lackadaisical attitude toward the investigation of this case is indicative of their belief in its merits: further investigation would only have turned up more evidence that the three men were innocent.  And, as the investigator testified, somebody had to take the fall. 

In its return to the certiorari petition, the State makes the surprising claim that “the integrity of the police investigation … is completely irrelevant to whether [petitioners’] directed verdict motions should have been granted or denied.”  To the contrary, the State’s failure to adduce substantial evidence to prove its case is precisely the issue.

The Court of Appeals concluded that the petitioners’ “behavior and actions while at Billy’s Super Store were markedly suspicious, and the ensuing course of events was inconsistent with what a reasonable delivery of furniture would entail. … [Their] actions and behavior were inconsistent with the seemingly innocuous task of unloading furniture.”  It is telling that the Court fails to support these conclusory assertions with any direct or circumstantial evidence. 

In short, the State failed to prove that Hernandez, Guerrero and Avila-Arjona were guilty of anything other than being strangers in an increasingly hostile land.  The Court should direct verdicts acquitting them of trafficking in marijuana, so that they may be returned to Mexico. 

 

Respectfully submitted,

 

                                               
Joseph L. Savitz, III
Chief Appellate Defender

ATTORNEY FOR PETITIONERS

This 5th day of  August, 2008


STATE OF SOUTH CAROLINA
IN THE SUPREME COURT


Certiorari to Edgefield County

William P. Keesley, Circuit Court Judge


THE STATE, RESPONDENT,

                                                  V.

RAPHAEL HERNANDEZ,
HONORIO GUERRERO AND
ALFREDO AVILA-ARJONA PETITIONERS

                                                                                     


CERTIFICATE OF SERVICE


I certify that a true copy of the brief of petitioners in this case have been served on Christina J. Catoe, Esquire, this 5th day of August, 2008.  A copy of the brief has also been served on the Court of Appeals this 5th day of August, 2008.

                                                                      

 

                                               
Joseph L. Savitz, III
Chief Appellate Defender

ATTORNEY FOR PETITIONERS

SWORN TO BEFORE ME this 5th day
of August, 2008.

                                                                 (L.S.)

Notary Public for South Carolina
My Commission Expires: March 19, 2017


 

STATE OF SOUTH CAROLINA

IN THE SUPREME COURT


Certiorari to Edgefield County

William P. Keesley, Circuit Court Judge


THE STATE, RESPONDENT,

V.

RAPHAEL HERNANDEZ,
HONORIO GUERRERO AND
ALFREDO AVILA-ARJONA, PETITIONERS


 

                                                        BRIEF OF PETITIONERS


 

Joseph L. Savitz, III
Chief Appellate Defender

South Carolina Commission on Indigent Defense
 Division of Appellate Defense
PO Box 11589
 Columbia, S. C. 29211-1589
(803) 734-1343

ATTORNEY FOR PETITIONERS

   

 

South Carolina Commission on Indigent Defense
Division of Appellate Defense
1330 Lady Street, Suite 401
Columbia
, South Carolina 29201-3332

Post Office Box 11589
Columbia, South Carolina 29211-1589
Telephone:   (803) 734-1330
Facsimile:      (803) 734-1397


Joseph L. Savitz, III, Chief Appellate Defender

Wanda H. Carter, Deputy Chief Appellate Defender

March 5, 2009

Christina J. Catoe, Esquire
Assistant Attorney General
Post Office Box 11549
Columbia, South Carolina 29211

Re:  The State v. Raphael Hernandez, Honorio Guerrero and Alfredo Avila-Arjona

Dear Christina:

Enclosed are two copies of the brief of petitioners in the above cases that I filed with the S.C. Supreme Court today.

If you have any questions concerning this matter, please contact me.

 

Sincerely,

Joseph L. Savitz, III
Chief Appellate Defender

JLS,III/kde

Enclosures


South Carolina Commission on Indigent Defense
Division of Appellate Defense
1330 Lady Street, Suite 401
Columbia
, South Carolina 29201-3332

Post Office Box 11589
Columbia, South Carolina 29211-1589
Telephone:   (803) 734-1330
Facsimile:      (803) 734-1397


Joseph L. Savitz, III, Chief Appellate Defender

Wanda H. Carter, Deputy Chief Appellate Defender

March 5, 2009

Mr. Raphael Hernandez #304976
Lee Correctional Institution
990 Wisacky Hwy.
Bishopville, SC  29010

Re:  Your appeal

Dear Mr. Hernandez:

Enclosed please find a copy of the brief of petitioner in your case that I filed today with the South Carolina Supreme Court on your behalf.

Should you have any questions concerning this matter, please contact me.

 

Sincerely,

Joseph L. Savitz, III
Chief Appellate Defender

JLS,III/kde

Enclosures


South Carolina Commission on Indigent Defense
Division of Appellate Defense
1330 Lady Street, Suite 401
Columbia
, South Carolina 29201-3332

Post Office Box 11589
Columbia, South Carolina 29211-1589
Telephone:   (803) 734-1330
Facsimile:      (803) 734-1397

Joseph L. Savitz, III, Chief Appellate Defender

Wanda H. Carter, Deputy Chief Appellate Defender

March 5, 2009

Mr. Honorio Hernandez Guerrero,  #304974
Lieber Correctional Institution
PO Box 205
Ridgeville, SC  29472

Re:  Your appeal

Dear Mr. Guerrero:

Enclosed please find a copy of the brief of petitioner in your case that I filed today with the South Carolina Supreme Court on your behalf.

Should you have any questions concerning this matter, please contact me.

 

Sincerely,

Joseph L. Savitz, III
Chief Appellate Defender

JLS,III/kde

Enclosure


South Carolina Commission on Indigent Defense
Division of Appellate Defense
1330 Lady Street, Suite 401
Columbia
, South Carolina 29201-3332

Post Office Box 11589
Columbia, South Carolina 29211-1589
Telephone:   (803) 734-1330
Facsimile:      (803) 734-1397

Joseph L. Savitz, III, Chief Appellate Defender

Wanda H. Carter, Deputy Chief Appellate Defender

March 5, 2009

Mr. Alfredo Avila-Arjona,  #304975
Lieber Correctional Institution
PO Box 205
Ridgeville, SC  29472

Re:  Your appeal

Dear Mr. Avila-Arjona:

Enclosed please find a copy of the brief of petitioner in your case that I filed today with the South Carolina Supreme Court on your behalf.

Should you have any questions concerning this matter, please contact me.

 

Sincerely,

Joseph L. Savitz, III
Chief Appellate Defender

JLS,III/kde

Enclosure