                                 NO. 07-08-0315-CR

                           IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                   AT AMARILLO

                                      PANEL C

                              DECEMBER 30, 2009
                        ______________________________

                          ANTHONY G. HEREFORD, JR.,

                                                           Appellant

                                          v.

                              THE STATE OF TEXAS,

                                                    Appellee
                      _________________________________

           FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

             NO. 2007-416,858; HON. JIM BOB DARNELL, PRESIDING
                      _______________________________

                                   Opinion
                       _______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

                                    Background

      One thousand-one, one thousand-two, one thousand-three, one thousand-four, one

thousand-five, one thousand-six, one thousand-seven, one thousand-eight, one thousand-

nine, one thousand-ten, one thousand-eleven, one thousand-twelve, one thousand-

thirteen, one thousand-fourteen, one thousand-fifteen, one thousand-sixteen, one

thousand-seventeen, one thousand-eighteen, one thousand-nineteen, one thousand-
twenty. That was the amount of time Officer Arp initially tased Anthony G. Hereford, Jr.,

according to the instrument’s log. At the time, appellant was handcuffed and being held

down in a hospital emergency room. Arp wanted appellant to spit-out what he had in his

mouth. When appellant did not comply after Arp’s first foray, the tasings resumed. No one

viewed appellant as a threat to others during the episode. Nor had he attacked anyone.

Arp simply wanted appellant to comply.                When asked if “repeated taser use [was]

acceptable” and whether “20 seconds worth of tasering” was “okay,” the policeman

answered “yes” to both.

        Arp was not the first to tase appellant, though. Officer Williams had already done

so twice at a locale miles away from the hospital. He too wanted appellant to remove the

items, which Williams thought to be drugs, from his mouth, and met with no success. So,

Williams decided to take appellant to the hospital in effort to gain medical assistance.

        In continuing where Williams had failed, Arp said he administered all but one of the

electrical shocks to Hereford’s inner thigh region; others saw them being administered to

appellant’s “groin area.”1

        Finally, Arp reported seeing Officer Holmes, who also was present in the emergency

room, tase appellant at least once. Holmes denied this, though. So, by the time the

incident ended and within a span of about an hour, appellant was potentially shocked

eleven times.

        Anthony G. Hereford, Jr. now appeals his conviction for possessing a controlled

substance with intent to deliver. Several issues before us involve the trial court’s decision


        1
          Apparently, Arp used the taser on appellant’s arm or upper body to force him to release item s held
in his hand.

                                                     2
to deny appellant’s motion to suppress. Others involve the trial court’s refusal to permit

expert testimony on whether the acts undertaken by the officers were excessive and to

submit an article 38.23 instruction. Finding harmful error, we reverse the trial court’s

judgment.

       Issue One – Warrants Not Admitted into Evidence

       Appellant initially contends that the trial court erred in overruling his motion to

suppress because the State failed to tender into evidence the arrest warrants upon which

Officer Williams acted. We overrule the contention.

       Next, appellant is quite correct in arguing that the State was obligated to tender the

arrest warrant and affidavit supporting its issuance into evidence when the arrest is based

upon a warrant. Paulea v. State, 278 S.W.3d 861, 864 (Tex. App.–Houston [14th Dist.]

2009, pet. ref’d). That was not done here. Nonetheless, Officer Williams testified at the

suppression hearing that about a week before the arrest he saw appellant driving his car

without a front license plate. Knowing this to be a traffic violation, see TEX . TRANSP . CODE

ANN . §502.404(a) (Vernon Supp. 2009) (requiring a vehicle to carry a front license plate),

the officer directed appellant to pull over. Appellant allegedly said “no” and drove off.

Because the officer was on bike patrol at the time, he could not give chase. Yet, the officer

concluded that appellant evaded arrest by driving away, and that portended the

commission of a criminal offense. TEX . PENAL CODE ANN . §38.04(a) (Vernon 2009) (stating

that a person commits an offense if he intentionally flees from a person he knows is a

peace officer attempting lawfully to arrest or detain him). This testimony is of import

because a peace officer may arrest someone without a warrant for any offense committed

in his presence or within his view. TEX . CODE CRIM . PROC . ANN . art. 14.01(b) (Vernon

                                              3
2005). That the offense may have occurred sometime earlier does not affect the authority

granted under art. 14.01(b). Akins v. State, 202 S.W.3d 879, 889 (Tex. App.–Fort Worth

2006, pet. ref’d) (holding that an officer may make an arrest under art. 14.01(b) for a crime

committed at an earlier time); accord, Herrera v. State, No. 13-05-102-CR, 2006 Tex. App.

LEXIS 10647 (Tex. App.–Corpus Christi, December 14, 2006, pet. ref’d) (not designated for

publication) (holding the same).     Given this, we conclude that a reasonable officer

presented with the circumstances confronting Williams would have been justified in

arresting appellant at the motel despite the absence of a warrant. See Amador v. State,

275 S.W.3d 872, 878 (Tex. Crim. App. 2009) (holding that determining whether an officer

had probable cause to arrest is an objective test based upon the totality of the

circumstances). This, in turn, means that the trial court did not abuse its discretion in

concluding that appellant’s initial arrest was lawful even though the arrest warrants were

not offered into evidence.

       Issue Two – Reasonableness of the Search and Seizure

       Appellant next contends that the evidence of drugs upon which his conviction was

based should have been suppressed given the manner in which it was obtained. He

believed it to be unreasonable, excessive, and a violation of due process. The trial court

rejected the argument but why it did went unexplained. We sustain the issue.

       One need only harken back to first year constitutional and criminal procedure class

to recall our United States Supreme Court stating: “[i]t has long since ceased to be true

that due process of law is heedless of the means by which otherwise relevant and credible

evidence is obtained.” Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 210, 96



                                             4
L.Ed.183 (1952). In Rochin, the police transported a suspect, who they thought swallowed

drugs, to the hospital to undergo the non-consensual pumping of his stomach. This was

done after their attempts to physically force Rochin to open his mouth met with no success.

Id. 342 U.S. at 166, 72 S.Ct. at 206. According to the Court, recognizing the use of “brutal

conduct” as a legitimate means of securing evidence is tantamount to “afford[ing] brutality

the cloak of law.” Id. 342 U.S. at 173, 72 S.Ct. at 210. And, most importantly, it opted

against that by viewing the police conduct as a denial of due process. See Brown v. State

of Mississippi, 297 U.S. 278, 287, 56 S.Ct. 461, 465-66, 80 L.Ed. 682 (1936) (holding that

whipping or beating of a suspect to gain his confession violated due process).

       Years later, in Winston v. Lee, 470 U.S. 753, 755, 105 S.Ct. 1611, 1614, 84 L.Ed.2d

662 (1985), the Supreme Court was asked to consider whether more than due process is

implicated when evidence is secured through forceful means. It recognized that such

conduct may also run afoul of the Fourth Amendment to the United States Constitution.

Whether it did depended upon the consideration of such indicia as whether the procedure

utilized by the police 1) threatened the suspect’s health or safety, 2) conformed to

accepted medical practices, 3) was performed by a trained professional, 4) arose from the

existence of probable cause to believe the suspect had evidence of a crime, 5) unduly

intruded upon the individual’s dignitary interests in personal privacy, and 6) was

commonplace of one to which individuals were often subjected. Id. 470 U.S. at 761-63,

105 S.Ct. at 1617-18. So too must the community’s interest in accurately determining

one’s guilt or innocence and the State’s need for the evidence be weighed. Id. 470 U.S.

at 762-67, 105 S.Ct. at 1617-20. Given that various indicia must be considered, there was



                                             5
and is no bright line rule resolving all situations; instead, the courts are to resolve the

matter case by case. Id. 470 U.S. at 760, 105 S.Ct. at 1616.

       We read the foregoing authority to require our public servants to comply with

particular standards of conduct and consciousness when performing their duties. Under

the umbrella of public servant walk policemen, and the standard applicable to their conduct

when gathering evidence of criminal activity is one of reasonableness. In other words, law

enforcement personnel must act reasonably when conducting searches and seizures. That

finds expression in the Fourth Amendment. Through it we are told that the “right of the

people to be secure in their persons, houses, papers and effects, against unreasonable

searches and seizures shall not be violated.” U.S. CONST . amend. IV (emphasis added).

This very concept is reiterated by the Court of Criminal Appeals decision in Hernandez v.

State, 548 S.W.2d 904 (Tex. Crim. App. 1977). When asked whether physical force could

be used to obtain evidence, it said yes but limited the measures utilized to “reasonable”

ones, which may include “reasonable physical contact.” Id. at 905.

       But, should the acceptable standards of conduct be breached, then the judiciary

must intervene to remedy the violation.         The corrective action available includes

suppressing the evidence obtained via the unacceptable procedure. Indeed, it was the

Supreme Court’s concern about an individual’s “freedom from all brutish means of coercing

evidence,” as well as the freedom from “state invasions of privacy” that eventually caused

it to apply the exclusionary rule to Fourth Amendment violations committed by state

authorities. Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 1691, 6 L.Ed.2d 1081 (1961).




                                            6
        One other preliminary matter bears comment. It involves the burden of proof and

the litigant responsible for carrying it. When an arrest or search is undertaken without a

warrant, the burden to show its legitimacy lies with the State. Amores v. State, 816 S.W.2d

407, 413 (Tex. Crim. App. 1991). As mentioned under issue one, the State failed to prove

that the arrest and search of appellant were undertaken per a valid warrant. Thus, it had

the burden to prove that the seizure by the officer at bar was reasonable. With that, we

turn to the record before us.

        As previously mentioned, no one accused appellant of being violent or physically

aggressive towards anyone throughout the incident. Of the witnesses asked about it and

who were present, none said that they felt threatened by him.2 The record further

illustrates that though appellant would not voluntarily remove the items from his mouth, his

effort to keep his teeth clenched, his shaking his head, and his screaming and moaning3

began after the officers endeavored to physically extract him from the squad car, applied

some throat hold on appellant, thrust him against the trunk of their police unit, tased him

on the back and leg, and eventually “pulled” him to the ground. This was done while

appellant’s hands remained cuffed behind his back. With regard to the aforementioned

throat hold, Officer Williams denied that it consisted of punching appellant. Rather, it


        2
            A physician did state that he feared having his finger bitten if he placed it in appellant’s m outh.
However, we are cited to nothing in the record upon which one could reasonably deduce that appellant would
have done so or that appellant sought to harm anyone. This sam e doctor also testified that appellant flailed
his hands while being forced to expel the item s from his m outh. Yet, according to the officer who arrested
appellant, the latter had his hands cuffed behind his back before being taken to the em ergency room and that
appellant rem ained cuffed. How one can flail his hands while they are cuffed behind his back is an event
difficult to picture.

        3
            Because of appellant’s refusal to spit out the substance, the officers deem ed him “non-com pliant.”
The latter was a buzzword often used by the officers here when describing appellant’s behavior and justifying
their response to it. W hat that rather am orphous term m eant was that appellant would not follow their orders
to spit it out.

                                                       7
purportedly encompassed the application of “pressure points” which eventually converted

to “grabbing” appellant’s throat “pretty sternly,” according to the officer.

        Realizing that their efforts were for naught and that appellant remained “non-

compliant,” the policemen at the scene returned appellant to the back seat of the squad

car and began debating what to do next. When asked why they thought it permissible to

engage in this discussion and risk the attendant delay, Williams told the trial court that he

was “not totally convinced that [appellant] swallowed [the item] as much as he’s just

continuing to hold it in his mouth.”4 That very same officer also knew that crack cocaine

(i.e. the substance he believed appellant had) would not dissolve if simply kept in one’s

mouth. This testimony coupled with the fact that appellant continued to retain the drug in

his mouth after being pulled from the squad car, grabbed by the throat, “pulled” to the

ground and tased twice hardly suggests that he sought to swallow or otherwise destroy the

contraband.5

        Once appellant arrived at the hospital, the tasing resumed. This was so despite the

method having achieved little success in the field. But rather than focus upon the locations

selected by Williams, Arp consciously opted for a “sensitive” one. That location, according

to Arp, was appellant’s upper, inner thigh, and there the tasing began anew. Yet, Williams

described seeing Arp apply the weapon to appellant’s “groin area” even though officers

        4
          This deduction appeared rather reasonable given appellant’s conduct once the item s were rem oved
from him . He grew calm and ceased his “non-com pliant” behavior. W hy we m ention this is because the
officers attem pted to attribute appellant’s flailing about, scream ing and m oaning as the effects of having
ingested the narcotic they thought was in his m outh. Yet, if he grew calm “im m ediately” after the drugs were
extricated and the tasing and other physical exertion undertaken by the police and m edical personnel at the
hospital stopped, we are left to wonder whether his conduct was less a result of ingesting drugs and m ore of
a response to being tased and physically m anhandled.

        5
          That the contraband stayed in his m outh until being forced to excrete it at the hospital further
confirm s this.

                                                      8
purportedly were trained (by Williams and others) to avoid “the private areas.” What was

meant by the “private area” is unknown though Williams conceded that the areas which

officers were prohibited from tasing included the “groin.” Other than this, though, we have

nothing before us about the extent of the taser training generally received by the police or

policies adopted by the police department regarding taser use. So, the State effectively

failed to establish that the conduct of both Williams and Arp comported with accepted

practice.

        Next, Williams described the tasing method applied here as “drive stun.”6 Being

drive stunned was “less violent” than being punched, kneed or struck with an asp, said the

officer. That nonetheless does not mean much. A bat may be “less violent” than a bullet,

yet both can cause grave injury or death. So, saying that the shock emitted from a taser

is “less violent” than being hit with a fist, struck with a knee, or beat with a steel baton fails

to allow one to reasonably gauge the actual amount of violence actually utilized. Indeed,

there may be situations wherein being tased is as egregious as being struck with a baton

depending upon the location of the blow.

        That it may be “less violent” also falls short of illustrating that the measure has a

reduced likelihood of inflicting severe pain or injury. Indeed, Williams conceded that being

shocked with the weapon “doesn’t feel great” and that it inflicted pain, though the pain




        6
           According to the record, a taser could be used by firing darts or electrodes into the target. The darts
were attached to the taser itself via wires. Depressing the taser’s trigger would allow voltage to travel down
the wires, through the darts, and into the target. “Drive stun,” however, did not require the officer to fire darts.
It sim ply consisted of touching the taser’s two electrodes to the target and pulling the trigger. The latter
m ethod obligated the officer to be m uch closer to the target, and the eventual shock norm ally affected a m uch
sm aller area.

                                                         9
stopped once the electrical charge ended.7 This may be why he agreed with defense

counsel’s characterization of tasers as “pain compliance” devices. And, though he opined

that “the taser alone has never actually killed anyone,” Williams acknowledged that not only

that it “may have been involved in an incident where an individual died,” but also that “there

is always a risk of death” when using it. Moreover, another witness, who happened to be

a physician present in the emergency room as Arp tased appellant, answered “yes” when

asked if he had heard of tasers “hurting anybody, killing anybody.” The same witness also

1) recalled that appellant would “scream” when tased, 2) opined that the procedure

“seemed painful,” and 3) related how appellant “was very frantic, because there was tasing

there in the ER . . . .” A nurse in attendance at the time also observed appellant’s screams

and appearance of being in pain when tased. That tasing via drive stun could also leave

scars and burns was also disclosed. And, while Williams may believe that the pain ends

once the electricity stops flowing, one may nonetheless suffer scars or burns thereafter.

Finally, logic would suggest that if the pain inflicted by the taser was as minimal as Williams

attempted to describe, the police department would not deem them very effective or useful.

Yet, they are being readily used to effect, as illustrated here.

        Additionally, that the weapon is known to inflict pain, is used for that purpose,

“always” involves the risk of death, and can burn flesh falls short of establishing it as a

nominal affront to human dignity and personal security. This is so even though it may be



        7
           At one point, an officer com pared the pain felt from a taser to the instantaneous sting of static
electricity. Apparently, he did so in effort to m inim ize its quantum . Yet, m ost know from experience that being
shocked by static electricity can be so unpleasant as to stim ulate expletives to pass one’s lips. Now,
m ultiplying that one shock of fractional duration by the num ber that would be experienced in the twenty-second
period that Arp initially tased appellant cannot but lead one to conclude that W illiam s was correct in saying
the event would “not feel great.”

                                                       10
“less violent” than a clubbing. Nor is it of much consequence that no one recalled specific

instances of a taser “actually” killing its victims. Far less is needed before a practice is

considered unreasonable. See, e.g. Dominguez v. Moore, 149 Fed. Appx. 281, 283, No.

04-41382, 2005 U.S. App. LEXIS 21337 at *3 (5th Cir. 2005) (not designated for publication)

(holding that the refusal to loosen handcuffs constituted unreasonably excessive force

because plaintiff's hands became “grossly swollen” and resulted in permanent scarring and

nerve injury).

       Also problematic is the manner in which the police at bar viewed use of the pain-

inflicting device. Those officers who were asked saw no problem with “continuously” or

“repeatedly” discharging a taser on individuals within their custody but who were “non-

compliant.” Furthermore, non-compliance could include someone’s mere refusal to do that

asked of him, according to one officer. It was this very attitude that Arp exemplified in the

emergency room when shocking appellant either the four times to which he admitted or to

the eight times indicated by the taser’s log. He also was ready to continue if need be,

given his representations to appellant. It must be remembered that this representation and

accompanying conduct arose 1) after Williams found the taser ineffective and opted to try

something else and 2) while appellant was both handcuffed and held down. Whether this

comported with accepted departmental practice is unknown. Nonetheless, the lack of

concern about repeatedly tasing someone deemed “non-compliant,” coupled with the four

to eight tasings administered by Arp, the two by Williams, and the one which Arp accused

Holmes of administering evince a rather cavalier attitude towards the use of a weapon

known to inflict pain, cause burns, and “always” involves the risk of death.



                                             11
       Next, feeling the instantaneous sting of static electricity may be a common, everyday

happenstance. However, being subjected to 50,000 volts of electricity for twenty seconds

or more is not, and the State proffered no evidence suggesting otherwise. Simply put, the

procedure before us is not one that is part of ordinary life like that in Schmerber v.

California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) (the drawing of blood).

Indeed, it is unlikely that more than most will ever experience it in these United States.

       Regarding the matter of probable cause, appellant was under arrest when the

search and seizure began. Thus, the officers had the authority to search his person. See

McGee v. State, 105 S.W.3d 609, 615 (Tex Crim. App. 2003) (holding that a person may

be subjected to a search incident to his arrest). Furthermore, it is rather unquestionable

that State and its law enforcement representatives have an interest in securing and

preserving evidence of a crime. Id. Yet, the privilege to search and seize is not an

invitation for the officer to do whatever he chooses.        Again, the conduct must be

reasonable. Hernandez v. State, supra. So there are limitations.

       That the State and community have an interest in prosecuting individuals involved

in the drug trade is also beyond reasonable dispute. But here, appellant was already

subject to arrest and prosecution for other crimes. They included the crime of evading

arrest committed by appellant a week or so earlier or the crimes underlying the supposed

arrest warrants upon which Williams initially arrested appellant. And, though securing the

drugs from appellant was needed to prosecute the crime at bar, the State failed to illustrate

that their loss or destruction was imminent or even probable. Again, no one questions that

appellant had already held the substances in his hand and mouth for some time before



                                             12
they were forcibly removed. He did this even though previously having his throat “sternly”

grabbed, being thrown to the ground, being tased in the field, and being held down and

tased multiple times in the hospital. Had appellant intended to swallow, dispose, or destroy

the drugs, common sense suggests that he would have done so rather than risk the effects

of physical force.

       More importantly, no evidence of record suggested, much less illustrated, that the

drugs appellant clutched in his hand were imminently subject to being swallowed or lost.

So too should it be mentioned that Officer Williams had already decided against further

tasing and opted to seek medical help instead. Though the record indicates that some

effort was undertaken by medical personnel to have appellant expel the drugs (i.e. forcing

implements into his mouth and exposing him to ammonia capsules), the State did little to

negate the chance that other reasonable but less painful medical options were available.

       Of course, it is easy to say that the weapon ultimately proved effective. So too

would a cane and club be effective if used enough times. The problem, however, is that

our United States Supreme Court condemned beatings and whippings as a means of

obtaining evidence. Brown v. State of Mississippi, 297 U.S. at 285-86, 56 S.Ct. at 465.

Given that those measures and the application of a taser are founded upon the concept

of compliance through pain and the rather accurate premise that the more inflicted the

greater the chance of compliance, it would be reasonable to view two modes of obtaining

evidence as alike. Additionally, both can be quite brutal depending upon the manner of

and circumstances surrounding their application.

       Had the conduct before us encompassed only Williams’ initial application of a hold

upon appellant’s throat then the debate would be less complicated. This is so because

                                            13
authority recognizes that the administration of a choke hold may be reasonable to prevent

one from swallowing evidence. Hernandez v. State, supra; Lewis v. State, 56 S.W.3d 626,

628-29 (Tex. App.–Texarkana 2001, no pet.). Moreover, at least one court thought tasing

a suspect several times immediately after arrest was non-excessive when he had tried to

escape, had lunged at the officers, had actually began chewing and swallowing the drugs

hidden in his mouth, and physically resisted the officers’ efforts to have him spit out the

substance. Ellis v. Columbus City Police Dep’t., No. 1:07CV124-A-A, 2009 U.S. Dist.

LEXIS 95821 (N.D. Miss. September 15, 2009). Yet, we had more here. Admittedly, the

situation at bar would liken to Ellis had Williams alone tased appellant. But, Arp joined in

long after the arrest. Furthermore, our situation involved a controlled hospital environment

whereat trained medical personnel stood ready to help if appellant swallowed the drugs.

That was missing in Ellis for the officers were in the field and actually saw appellant begin

to swallow the drugs. There they had little choice but to react. Nor do we have before us

an individual who attempted to escape or tried to assault the officers, as in Ellis. Also

missing from that case is evidence that the officers intentionally selected the rather

sensitive “groin area” as their target of choice and administered possibly eleven tasings.

       The absence of evidence regarding the extent of taser training, if any, completed

by those given tasers at bar, the police department’s policy, if any, regulating the use of

tasers, whether the conduct of Williams and Arp comported with both their alleged training

and department policies hinders our ability to assess the reasonableness of force in

question. Whether any other authoritative organization or body implemented guidelines

or policies regulating the use of tasers would and whether the conduct of the police at bar

complied with them also would have been helpful in determining what a reasonable officer

                                             14
facing the same circumstances presented to Williams and Arp would have done. The

extent of Arp’s role at the hospital was also pertinent. Did his duty encompass the ability

to intervene in medical situations or was he simply there to protect medical personnel from

aggressive patients? The answer to those questions could be influential especially since

the record clearly illustrates that appellant was not a threat to third parties. Whether Arp

was invited by medical personnel to assist or whether he simply interjected himself without

affording them adequate opportunity to explore alternatives was also undeveloped. While

the medical care initially given appellant proved ineffective that does not mean they had

no other reasonable medical options available before Arp resorted to the taser.

       Our application of the record to the indicia itemized in Winston and policy

considerations mentioned in Brown, Rochin, and Mapp leads us to conclude that the State

failed to prove that force administered here was reasonable. See United States v.

Degollado, 696 F. Supp. 1136, 1140-41 (S.D. Tex. 1988) (wherein the court stated that

securing evidence through the use of an electrical prod and seltzer water warranted its

suppression); see also Bultema v. Benzie County, 146 Fed. Appx. 28, 35, No. 04-1772,

2005 U.S. App. LEXIS 17818 at *16 (6th Cir. 2005) (holding that “the gratuitous use of force

on a suspect who has already been subdued and placed in handcuffs is unconstitutional);

Champion v. Outlook Nashville, Inc., 380 F.3d 893, 900-01 (6th Cir. 2004) (holding that “it

was excessive for police officers to lay on top of a mentally retarded individual who had

stopped resisting arrest and posed no flight risk, and spray him with pepper spray even

after he was immobilized by handcuffs and a hobbling device”). The trial court erred in




                                            15
holding otherwise.8 We further deem the error harmful. That is, we cannot say beyond

reasonable doubt that the evidence secured through the police conduct had no effect on

the outcome. See TEX . R. APP. P. 44.2(a) (requiring reversal unless the court determines

beyond a reasonable doubt that the error did not contribute to the conviction or

punishment).

        Though other issues were presented by appellant, their resolution is unnecessary

to the disposition of this appeal. Since the cause will be remanded, they can be raised and

resolved by the trial court anew. Accordingly, we reverse the judgment entered below and

remand the cause.



                                                           Brian Quinn
                                                           Chief Justice

Publish.


Campbell, J., concurs in result.




        8
          It m ay well be that those guilty often find protection in what som e deem to be the “technicalities”
created by our constitutions. Those “technicalities” though exist to protect the innocent as well as to preserve
m inim um concepts of decency and acceptability in a civilized society. That the guilty also benefit from them
is not reason for their rejection. Throughout life we are told that we m ust accept the good with the bad. This
is especially so when the form er greatly outweighs the latter as it does here.

                                                      16
