OTTAWA — Even if Eric Litwin can persuade a jury that Utica police made a bad drug bust, he may have to worry about a potentially incriminating call he made from jail.
Litwin, 45, of South Easton, Mass., is on trial this week for allegedly hauling 67 pounds of marijuana, though prosecutors announced Tuesday that just 24 pounds were processed and presented as evidence.
The Utica officer who pulled over Litwin in March 2012 testified Tuesday that he stuck his head in Litwin’s window and smelled pot. Litwin, he said, didn’t exactly deny it. The ensuing search yielded a suitcase on the back seat and three duffel bags in the trunk, all containing dope.
And if that weren’t enough, prosecutor Laura Hall told the jury, the state also taped a call Litwin made to his wife from La Salle County Jail. In a recording to be played later at trial, Litwin made what Hall characterized as incriminating comments including that he intended to pay a few bills. “I truly meant well,” Litwin said.
“What he didn’t mean to do, ladies and gentlemen, was get caught,” Hall told the jury during opening statements.
Litwin and his lawyers argued that the case isn’t as open-and-shut as Hall portrayed. Utica police Lt. Jerry Nanouski may say he smelled marijuana, they allowed, but then why didn’t a state police K-9 unit that arrived on scene alert to the car?
Litwin also appears far from finished with the much-disputed videotape Utica police Lt. Jerry Nanouski made of the traffic stop.
Nanouski testified Tuesday he did not have with him an “audio box” that would have picked up the conversation he had with Litwin. Nanouski testified he activated his decade-old VHS recorder and “I thought it was (working).”
It wasn’t. The tape played in open court was about 90 percent snow, with only snippets of police activity sandwiched in between extended voids.
“It doesn’t really show much of anything, does it?” Hall said.
“No,” Nanouski admitted.
To Hall, the tape is a non-issue. If the jury accepts Nanouski’s testimony that he smelled pot — grounds enough for a legal search and seizure — then the tape becomes at worst a flawed piece of corroborative evidence. In pre-trial rulings, Chief Judge H. Chris Ryan acknowledged the tape was bad but also ruled it wasn’t enough to throw out the traffic stop.
Upheld or not, Litwin’s lawyers still can use the tape to raise issues about the traffic stop.
Seven witnesses were expected to testify for the state. It was not yet clear whether Litwin will testify. A verdict is expected some time after Wednesday, when the courts are closed.
Tom Collins can be reached at (815) 220-6930 or email@example.com.