Pubdate: Fri, 07 Jun 2013
Source: Austin American-Statesman (TX)
Copyright: 2013 Austin American-Statesman
Website: http://www.statesman.com/
Details: http://www.mapinc.org/media/32
Note: Letters MUST be 150 words or less
Author: Chuck Lindell
Page: B1

COURT TO DECIDE IF SWALLOWING DRUGS DESTROYS OR HIDES THEM

While emptying his pockets for a Dallas-area police officer in 2010,
shoplifting suspect Richard Rabb pulled out a small plastic bag of
pills, popped it into his mouth and swallowed.

The pills were lost, or at least not recovered by law enforcement, but
Rabb still got six years in prison for tampering with evidence - until
a Texas appeals court threw out his conviction, ruling in October that
he was improperly tried for destroying evidence when in fact he was
just trying to conceal it.

Now the state's highest criminal court has the case, and its nine
judges must decide whether Rabb's digestive tract was merely a hiding
place or a conduit that destroyed evidence of a crime.

In addition to weighing the legal meaning of "destroyed," the Court of
Criminal Appeals judges wrestled with the case's unique set of facts -
asking about the size of the swallowed bag, its thickness and how well
it was sealed - during oral arguments earlier this week.

Unfortunately, those answers aren't known, said Craig Stoddart, first
assistant district attorney for Rockwall County, where Rabb was
shopping at a Wal-Mart in April 2010 when he was pulled aside and
questioned for suspected shoplifting.

The police officer saw only a corner of the clear plastic bag in
Rabb's hand but not its contents, Stoddart said. Store surveillance
cameras showed Rabb - who has an extensive criminal record, including
convictions for theft, drug possession and bail jumping - push the
officer and, in the ensuing scuffle during which he swallowed the bag,
get subdued with the aid of Taser.

The officer called an ambulance to check on Rabb, who told a paramedic
that the bag contained prescription medication that didn't belong to
him. He never identified the pills, Stoddart said.

Judge Tom Price asked if the authorities tried to recover the
evidence.

"I don't want to get graphic in front of this court," Stoddart
replied, explaining that sifting through Rabb's waste was deemed
"quite extreme" for a case in which they had Rabb's word - relayed
through the paramedic - that he had swallowed prescription pills.

Defendants can be tried for tampering with evidence that was altered,
concealed or destroyed. Rockwall County prosecutors chose to allege
that Rabb destroyed the pills, believing it was their strongest case,
Stoddart said outside of court.

But the case against Rabb unraveled last year when the Amarillo
appeals court tossed out his conviction, saying there was insufficient
evidence to show that his actions destroyed the pills. The law doesn't
allow a judge or jury to speculate, and the available evidence "shows
nothing of the condition of the bags or pills," the court ruled. "The
evidence shows merely their location following (Rabb's) actions."

Arguing before the Court of Criminal Appeals, Stoddart compared
swallowing the bag of pills to throwing it into a "churning vat of
acid" and noted that court precedent established that something is
destroyed when it is "ruined or rendered useless."

"No one would use those pills for their intended purpose" even if they
emerged from Rabb intact, Stoddart told the court. "Couldn't we say
that it's worth arguing that these pills were destroyed?"

The lower court mistakenly drew a sharp line between an effort to
conceal and destroy evidence, he said. "There can be times when the
same action can both conceal and destroy," Stoddart said.

Rabb's lawyer, Gregory Gray, said the Legislature specified three
available avenues of prosecution - for evidence that is altered,
concealed or destroyed - with no overlap between the terms. "They are
mutually exclusive," he told the court.

Because prosecutors alleged that Rabb destroyed evidence of a crime,
they "had to prove the baggie was destroyed."

"A fact-finder can't speculate," he said. "Under these facts, there is
no evidence that the pills were destroyed."

Judge Michael Keasler worried that a ruling in Rabb's favor could
leave prosecutors "up a creek" on future destruction of drug evidence
cases, even in what he called the classic situation: someone flushing
cocaine down the toilet while police are at the front door.

Gray replied that tampering laws would continue to give prosecutors
the flexibility to pursue charges based on concealing evidence that
was flushed away and unable to be recovered.

The case is Texas v. Rabb, PD-1643-12.
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