Freshly-minted Judge Keith Faulder presided over his first criminal jury trial last week, and by Thursday afternoon it looked like the defendant, Mark Johnson of Willits would have to finish his testimony on Monday, July 3rd, as the Superior Court reserves the courtroom on Fridays to clear the routine calendar for the week.
Johnson is charged with possession for sale of methamphetamine and butane honey oil, both felonies, along with possession of marijuana for sale, now a misdemeanor, resulting from a bust in April 2015. Other drugs in his possession included psylopsybin mushrooms and ecstasy pills, heroin, cocaine — and these were all displayed for the jury, along with two handguns.
You might describe Johnson as a kind of alternative apothecary, albeit an armed one.
The jurors were told they could walk by the table and “have a visual” of the drugs and weapons, but they would not be allowed to take any of it into the deliberation room with them because of “contamination issues,” never mind ingestion issues.
As the jurors filed past some of them leaned over, adjusting their glasses, to get a really close look at the drugs.
A year ago, we covered the preliminary hearing for Johnson and got this comment in response on our website from a poster named Feather Sullivan:
“Unfortunately this article is mostly told from somebodies perspective that lives in a Looney toones cartoon world. The facts in this article are far and few between. I think that it is completely unfair that somebody can write an article and publish it about somebody that is all wrong and honestly I do believe if he were a good journalist he would hAve gone to Mr. Johnson and gotten his side of the story. And deputy Stolfi has had this journalist write this article to pressure the judge into ruling in one direction on this case. I declare a rematch. The reason the judge has not ruled on this case is due to the fact that they are waiting mr Johnson out to see if he will take a plea bargain. This is a miscarriage of justice. People don’t want to see a person walk on a technicality but the situation here is that warrant was obtained because of lies that the deputy fed the judge just like the lies in this article.”
The reason I don’t go to the defendants and get “their side of the story” is the same reason I don’t go to the police and get “their side of the story” — because it doesn’t matter! It is in the interest of the accused to minimize, just like it is in the interest of the cops to maximize, and so neither side can be trusted. The legal system — rightly or wrongly — understands that and eliminates it by the rules of evidence. The prosecution has to prove the accusation and the defense has to disprove it. What Feather Sullivan misses is that I’m not reporting on what happened with Mark Johnson and the cops — I’m telling you what happened in the courtroom, where what was said and done really matters! Comprende?
When Mr. Johnson took the stand to tell his side of the story, the judge wouldn’t allow it, either. Even though Johnson tried and tried to dodge the rules, Judge Faulder made him follow the rules of evidence — which means he wasn’t allowed to snow the jury with a blizzard of little white lies!
“If you’d just let me tell my story,” Johnson complained bitterly, “I could explain it all.”
“You’ll get your chance to tell your story, Mr. Johnson,” Faulder said. “But you have to follow the rules and do it by answering the lawyer’s questions.”
This happened after the prosecutor, Deputy DA Brian Morimune, was cross-examining Johnson, after the softball questions from Johnson’s defense lawyer, Monte Hansen of Santa Rosa, were over with, and the “truth” was starting to raise its irrefutable head.
What that “truth” is, only Johnson knows, but since it is in his interest to lie, only a fool like Feather Sullivan would want to hear it. What was presented as “evidence” was pretty much what I covered in the preliminary hearing report last summer. Namely, that after a traffic stop that netted 12 pounds of marijuana in a rental car, Deputy Jim Wells got a search warrant and served it on Johnson at his 481 Locust Lane residence where two ounces of meth was found in a secret room hidden behind a bookcase, along with other drugs found elsewhere in the house that included the 44 pounds of processed marijuana and nearly six pounds of butane honey oil on sheets of parchment paper, sorta like big blocks of peanut brittle without the nuts. After over two years in the evidence locker, it was very brittle.
Prosecutor Morimune called Deputy Hank Stolfi to testify on the traffic stop, then Deputy James Wells for the search of the house. One of the issues was the large amount of meth, approximately two ounces (57 grams), which defense claimed was for personal use — a common theme since the passage of Proposition 47 which reduced possession of meth for personal use, a $20-sack (2/10th of a gram), to a misdemeanor — unless it was possessed for purposes of sale. Since then more and more sizable amounts have been claimed for personal use — to the point even the defendants find it funny. Two ounces, or about 5700 doses, was an hilarious amount to claim for personal use.
The 5.85 pounds of butane honey oil appeared to have been made somewhere other than the Johnson residence, likely due to the danger of blowing the roof off, and defense had no trouble proving it. But, as Deputy Wells pointed out, Johnson wasn’t being charged with manufacturing BHO (as it is called by Law Enforcement; or Angel Tears as it’s called by the True Believers in the Cannabis Community) — only with possession for sale of the illegal substance.
Another point of contention that wasn’t contested was Mr. Johnson’s 215 card, or medical marijuana recommendation. Deputy Hank Stolfi had written Johnson a ticket for violating section 11360 of the Health & Safety Code because he didn’t have it with him when he was pulled over. For this part of the trial defense brought in Chris Conrad, whom we would have thought would no longer be in demand as a defense expert cannabis expert witness since the passage of Proposition 64, which reduces marijuana sales to a misdemeanor.
After Mr. Conrad listed his extensive credentials, and was deemed an expert by Judge Faulder — who has himself deployed Conrad many times when Faulder was a defense attorney —Conrad told the court that he’d reviewed the Mark Johnson case and was being paid $2500 for his appearance.
Attorney Hansen then asked if Conrad was familiar with the evidence concerning the traffic stop and the marijuana found in the trunk. Conrad said yes. And, yes, he had an opinion that it was for medical use, but Judge Faulder stopped him at that point, and said it would have to be discussed outside the presence of the jury.
Attorney Hansen for the defense had to change tack, asking about making butane honey oil, and again established that there was no evidence that the honey oil had been made on the property — something Johnson wasn’t even charged with. After the jury left, the judge brought up the medical marijuana issue.
Hansen said, “The officers were allowed to state their opinion that the marijuana was for sale, and I believe we have a right to ask Mr. Conrad in good faith if it’s his opinion whether the marijuana was Mr. Johnson’s medicine.”
Faulder said, “If you are going to present a medical marijuana defense, one of the first things that needs to be done is establish that your client is a medical marijuana patient — that’s your burden, now, Mr. Hansen, and Mr. Conrad is an expert in marijuana, but not a doctor, and therefore cannot testify as to whether or not the 13 pounds of marijuana was your client’s medicine. That’s not his area of expertise, so I’m not going to allow it.”
So when the jury came back Hansen launched into a series of questions about growing marijuana that was all very interesting and kept the jurors entertained, because expert witness Conrad is such an engaging and informative personality — those who didn’t know how to grow marijuana before the trial should have a good idea how to go about it now, and I noticed some people in the room diligently taking notes. But since Conrad’s testimony and opinion relating to the defendants medical needs wasn’t permissible, I failed to see how the $2500 will help his case.
Mark Johnson took the stand. He said he got pulled over on the way to birthday party, and had picked up some marijuana from a friend on the way.
Monte Hansen: “Did you have your medical marijuana recommendation with you?”
Mark Johnson: “I did. It was in the back of the car, yes.”
Hansen: “At some point were you asked to produce it?”
Johnson: “Yes.”
Hansen: “Did you?”
Johnson: “No.”
Hansen: “Why not?”
Johnson: “I was nervous… It was in the trunk… I forgot.”
Hansen: “Were you issued a citation?”
Johnson: “Yes.”
Hansen: “Then what did you do?”
Johnson: “I contacted a secretary at the DA’s Office and got a copy of it to them. Then a few days later, I got stopped by Deputy Stolfi and offered to show it to him, but he said it wasn’t necessary.”
Hansen: “Did you get your marijuana back?”
Johnson: “No.”
Hansen: “What did you do?”
Johnson: “I went back to my friend’s house to get some more.”
Hansen: “Did you anticipate they [law enforcement] would come to your house?”
Johnson: “Yes, it crossed my mind.”
Hansen: “Did you turn in the rental car?”
Johnson: “Yes.”
Hansen: “Did you use it to transport marijuana for sale?”
Johnson: “No.”
Hansen: “How long did you have it?”
Johnson: “Three weeks.”
Hansen: “Were you living in the house at the time of the search?”
Johnson: “No.”
Hansen: “But you were present?”
Johnson: “Yes, in the backyard, transferring some plants in the back yard.”
Hansen: “Were you aware of the police?”
Johnson: “Yes, they came roaring up the drive, kicking in the door, yelling…”
Hansen: “Why didn’t you go down and greet them?”
Johnson: “It seemed a little threatening.”
Hansen: “For what purpose did you design the secret room?”
Johnson: “As a walk-in closet, and I planned to extend it into a bathroom, because the living room was so long… It wasn’t really a secret room, it just turned out that the best way was to make the bookshelf into a door….”
Hansen: “Did you have your medical marijuana in there?”
Johnson: “Yes.”
Hansen: “Who was actually living there?”
Johnson: “My brother, Jack. He’s my half brother. He came about two months before that for two days, but he’d been there for two months.”
Hansen: “Was he present on the day of the search?”
Johnson: “No.”
Hansen: “Had something happened?”
Johnson: “Yes. I’d tried to get him to leave — tools had been taken, the house was a mess, and when I came in he whipped out a big bag of meth and put it on the table…”
Johnson had to be stopped in his narrative repeatedly, and asked to wait for the questions from the lawyer — he couldn’t just go on and on. Yet he continued to do so, and the narrative was often rapid-fire, hard to keep up with, so I’ve used ellipsis to indicate these outbursts.
Hansen: “Had you given him permission to go into your bedroom?”
Johnson: “No, but he’d been going in there and in my daughter’s room.”
Hansen: “Where was he supposed to sleep?”
Johnson: “I don’t know. He had his things stored under the ping-pong table.” But I wouldn’t be surprised if he’d been sleeping in there…”
Morimune: “Objection. Non responsive. Move to strike.”
Johnson: “I wish I could just tell my story…”
Faulder: “I’ve told you before, you will get a chance to get your story out, but you will follow the rules of the court.”
Johnson: “What happened is we had an argument and I knocked him across the room and had Bill take him back to Santa Rosa…”
Hansen: “How did the meth get in the secret room?”
Johnson: “I took it and put it in there.”
Hansen: “Why?”
Johnson: “I wanted to get rid of it.”
Hansen: “Why didn’t you let him take it with him?”
Johnson: “I didn’t want him to transport it.”
Hansen: “What did you do after you dropped him off in Santa Rosa?”
Johnson: “I went back to Redwood Valley, then up to my place.”
Hansen: “Nothing further.”
Prosecutor Morimune: “The stop on April 8th, remember, with the thirteen and a half pounds of marijuana — who is the gentleman you got that from?”
Johnson: “Do I have to answer?”
Faulder: “You swore an oath to tell the truth, Mr. Johnson.”
Johnson: “Ivan Sloan.”
Morimune: “Where does he live?”
Johnson: “On the main street on the reservation — I don’t know the name of it.”
Morimune: “How long have you known him?”
Johnson: “Twelve years.”
Morimune put up the photo of the marijuana laid out on the hood of the rental car: “Is this it?”
Johnson: “I don’t know… it looks greener… maybe… I don’t know.”
Morimune: “In your experience, how long does it take to turn brown?”
Johnson: “A year or more.”
Morimune: “Isn’t this less than six months?”
Johnson: “No. It was some old stuff. It wasn’t worth anything.”
Morimune: “Didn’t you say it came from October of 2014?”
Johnson: “I don’t think so.”
Morimune: “From October to April, how long is that?”
Johnson: “I’m not sure what you’re getting at… The stuff I had was brown.”
Faulder: “Mr. Johnson, please just answer the questions.”
Johnson: “Grrrrr.”
Faulder: “You are required to answer the questions under penalty of perjury, do you understand?”
Johnson: “Yes.”
Morimune: “So this is the 13 pounds you had just bought?”
Johnson: “That marijuana there?”
Morimune: “Are you saying this is not the marijuana you were pulled over with?”
Johnson: “No. I’m saying it doesn’t look like it.”
Morimune: “You lied to Deputy Stolfi, didn’t you?”
Johnson: “Yes. But I thought it was a routine traffic stop so…”
Morimune: “Objection. Non-responsive.”
Faulder: “Sustained.”
Morimune: “Look at the photograph, Mr. Johnson.”
Johnson: “I can’t see it. There’s a lot of variables there. The evidence should be clear.”
Morimune: “It’s green, isn’t it?”
Johnson: “Yes, it looks fairly green… I’m not sure… I can’t see it that well… You gotta understand it doesn’t look the same.”
Morimune: “So you were given this for a week of watching your friend’s place?”
Johnson: “I’m not really good at trying to be clear.”
Morimune: “Safe to say a week of house-sitting isn’t really worth $13,000?”
Johnson: “It wasn’t worth that much — it was brown and I…”
Faulder: “Stop!”
It was 4:30 and the trial would resume on Monday.
Judge Faulder was having a grand time it seemed at his first criminal trial — he’d presided over a civil case the week previously, and it ended in a deadlock six to six. But criminal law has been his honor’s métier so this was more to his liking, and he seemed to enjoy it. Mr. Johnson certainly didn’t seem to be enjoying it, it wasn’t to his liking at all.
A verdict is expected this week.
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