Pubdate: Sun, 02 Dec 2007
Source: Telegraph, The (Nashua, NH)
Copyright: 2007 Telegraph Publishing Company
Author: Andrew Wolfe, Telegraph Staff


CONCORD -- Prosecutors can't wrap multiple drug sales  into a single
trial, the state Supreme Court ruled  Friday.

The ruling comes in the case of a Nashua man, Sean  Brown, who was
convicted of selling heroin to two  people on four different occasions
in 2005.

The ruling is a significant change from past practice  in the state,
and a local defense lawyer, Eric Wilson  of Nashua, said it could
cause further backlogs in the  state trial courts, or lead to more
plea bargains in  drug cases.

The decision centers on the legal rule that past crimes  or other
"propensity evidence" can't be used to convict  a person for a
particular crime. The court ruled that  individual drug sales are not
sufficiently linked to  justify lumping them all into a single trial.

Wilson wasn't involved in Brown's case, but applauded  the ruling,
saying that it avoids the risk that a jury  might convict a defendant
on weak evidence, reasoning  that if a person didsomething repeatedly,
they must be  guilty.

"It's a pretty significant change," Wilson said. "Given  this ruling,
the Supreme Court has done away with the  presumption that where there
is smoke, there must be  fire."

In the past, accused drug dealers typically have faced  a single trial
for multiple sales, sometimes to  multiple buyers. Brown asked for
separate trials, but  the trial judge agreed with prosecutors that his
  alleged heroin dealing was all a single, common scheme.

Prosecutors argued buyers always called Brown by phone,  arranged to
meet at mutually convenient locations and  paid cash for the drug.
Still, each sale was a discrete  act, the Supreme Court ruled in a
unanimous opinion.

"The fact that the sales all took place under similar  circumstances
is not sufficient; acts must be  intertwined such that they are
mutually dependent in  order to be considered part of a common plan,"
Judge  Richard Galway wrote.

"The defendant did not formulate a plan that was  dependent upon the
success of each sale; he merely took  advantage of opportunities as
they arose," Galway added  later. "Each of the sales committed by the
defendant  was a discrete event and involved different people. The
success of any individual sale did not depend upon the  success of any
other sale."

The court's ruling sends Brown's cases back to  Hillsborough County
Superior Court for new trials, and  vacates his 5- to 14-year prison

Brown, 34, formerly of 49 Worcester St., was jailed  after his arrest
in 2005. He was accused of selling  small amounts of heroin to two
different police  informants on four occasions. The charges were
raised  to class A felonies, punishable by up to 7-1/2 to 15  years in
prison, because of Brown's prior drug  convictions.

Judge William Groff sentenced Brown to 3-1/2 to seven  years, half
what prosecutors had sought. Prosecutors  appealed the sentence to the
Sentence Review Board,  which agreed Groff was too lenient and raised
Brown's  sentence to 5 to 14 years in prison. While inadmissible  at
trial, prior criminal records are routinely cited to  justify stiffer
sentences for repeat offenders.

Brown served 46 months in federal prison after being  convicted on
federal heroin and methamphetamine charges  in 1999. He was arrested
again in 2004 after police  found 21 grams of alleged heroin and a
pistol in his  apartment while investigating a robbery. The brown
powder turned out to be only 10 grams of something  other than heroin,
and Brown argued the gun belonged to  his wife. Brown was ultimately
convicted only of  hindering apprehension, in connection with the
robbery  investigation.

Brown was free on bail in the hindering apprehension  case when he was
arrested on the heroin dealing charges  in 2005. The time he spent
awaiting trial counts toward  his sentence, so Brown has already
served nearly three  years for the sales.
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