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Wednesday, October 28, 2009
DA: Ruling 'Guts' School Zone Rule
By Scott Sandlin
Journal Staff Writer
A state Court of Appeals ruling involving drug trafficking in a school zone "pretty much guts the statute," contends Bernalillo County's top prosecutor.
The New Mexico Court of Appeals upheld Terry Wilson's conviction for trafficking cocaine, but reversed his conviction of conspiracy to traffic within a drug-free school zone because he didn't "knowingly" sell near a school.
Wilson will be resentenced.
Wilson, 43, was arrested near Louisiana and Zuni in March 2006 in an undercover street-level drug buy. The bust occurred about 900 feet from Emerson Elementary School.
The Legislature has established places, such as drug-free school zones, in which penalties are enhanced for crimes committed there. Drug-free school zones are within 1,000 feet of a school (excluding private residences).
While limited in scope, the decision "pretty much guts the statute," said District Attorney Kari Brandenburg. "We're never going to be able to prove these people were informed they were selling in a drug-free zone. It makes our burden almost impossible to bear," she said Tuesday.
By contrast, Mary Barket, the appellate defender who briefed the case, said, "This does not do away with or even significantly gut the school zone enhancement; it simply requires the state to show that the defendant knew or should have known about the school."
That could be done by presenting circumstantial evidence for instance, if the transaction takes place in full view of the school, with children walking to and from school, she said.
"In most cases, this will not be a particularly heavy evidentiary burden," she said.
Detectives posing as prospective buyers approached Wilson to buy $40 worth of crack cocaine and waited in a parking lot while Wilson went to retrieve the drugs. He returned to the detectives' car, got in and was arrested after officers arrived and swarmed the vehicle.
He was not initially charged with conspiracy to traffic in a school zone.
Indeed, the Court of Appeals decision notes that it was a week later that investigators at the District Attorney's Office, using a special computer program, realized the transaction had taken place within a school zone. Wilson was subsequently indicted on the school zone conspiracy charge.
"There is no evidence that defendant knew the drug transaction would occur at or near a school," Judge Jonathan Sutin wrote in an opinion, joined by Chief Judge Cynthia Fry and Judge Roderick Kennedy.
"Even the undercover detectives, who were likely aware of the significance of drug-free school zones, did not realize that the case may have involved a drug-free school zone. ... The lone fact that the school may have been visible at a distance of 893 feet does not suffice to prove conspiracy to traffic cocaine within a drug-free school zone beyond a reasonable doubt."
The opinion emphasizes that "we decide this case based on its facts. Where distribution in a drug-free school zone is charged, different facts could justify a different result."
The drug-free school zone provision is a sentencing enhancement created by the Legislature that turns ordinary trafficking into a first-degree felony for a knowing violation.
Brandenburg said her office charges about 33 such cases a year, half of them in juvenile court where the enhancement doesn't apply.
"Basically, if you are trafficking, it's nine years. If you're convicted of trafficking in a drug-free school zone, you're looking at 18 mandatory years. That's a huge difference," she said.
"The reality is, even the statute says 'knowingly,' so oftentimes we haven't used it because of that. And now the Court of Appeals has come down and said this is what 'knowingly' means, and it makes it more difficult."
Wilson's sentence could be affected by the decision, Barket said, but it will be up to the trial judge to decide exactly how.
"We're talking about complex issues," Brandenburg said. "The whole intent of (the statute) was that people shouldn't be dealing drugs around schools. Children need to be safe, and parents need to be assured they are safe. So it states a policy we all readily can agree with. The problem is in implementing it."
Barket agrees on the policy.
"Nobody disputes that the Legislature considers the protection of children in a school zone to be an important public policy, and this decision in no way negates that. In this case, however, there was no reason for Mr. Wilson to know that this was occurring in a school zone."
The drug transaction took place in the evening, with no children in sight, and even the officers seemed unaware of the school zone, she said.