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Evidentiary challenges spurned; ERP/CIP ineligibility upheld

State v. Tiron Justin Grant, 2014AP2965-CR, District 1, 11/24/2015 (not recommended for publication); case activity (including briefs)

The court serially takes up and rejects each of Grant’s challenges to his conviction, at trial, of possessing cocaine with intent to deliver, as well as the sentencing court’s denial of ERP/SAP and CIP eligibility.

Various police officers testified that Grant threw away a pill bottle while running from them. (¶¶4-6).  In the bottle, an officer stated that he found 23 corner cuts of cocaine, which were stored in evidence and ultimately sent to the state crime lab. (¶6). The bottle, for unclear reasons, was not produced at trial. (¶16). Grant argues that the bottle’s absence destroys the chain of custody for the cocaine, a claim the court dismisses, noting the testimony that the cocaine was placed by the officer in a sealed and labeled envelope later opened by the lab worker. (¶16). (The court later turns down Grant’s request to reverse in the interests of justice based on the same argument. (¶32).).

Grant also argued that his due process rights were violated because the bottle could have been exculpatory if it was too small to fit the cocaine or if its physical condition was inconsistent with the officers’ testimony. (¶21). Finding no evidence of bad faith, the court concludes the bottle was only “potentially useful,” defeating Grant’s claim. (¶¶20-22). See Arizona v. Youngblood, 488 U.S. 51 (1988).

The court likewise spikes a Daubert challenge (by way of ineffective assistance of trial counsel) to a detective’s testimony that the amount and packaging of the cocaine indicated intent to deliver rather than to personally ingest. (¶¶27-28). After summarizing the three-step Daubert test, the court holds the testimony admissible and counsel thus not ineffective. (¶¶27-31).

Finally, the court of appeals considers Grant’s claim that the trial court erroneously exercised its discretion by denying him eligibility for either the Substance Abuse Program or the Challenge Incarceration Program. The circuit court had noted that Grant appeared to have a “drug delivery problem,” rather than the “drug abuse problem” that the programs are intended to treat. (¶¶34, 36). The court of appeals finds sufficient evidence for this conclusion. (¶¶37-38).



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