Colon v. State
| Decision Date | 24 April 1997 |
| Docket Number | No. 26617,26617 |
| Citation | 113 Nev. 484,938 P.2d 714 |
| Parties | Michelle COLON a/k/a Michelle White, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
The State charged Michelle Colon (Colon) with selling methamphetamine to narcotics investigator Robert Meyers (Meyers) on two occasions. In both transactions, Meyers requested the drugs, Colon took the money from Meyers, procured the drugs from her source, and gave the drugs to Meyers. Colon asserted the procuring agent defense and claimed that she received none of the drugs or money from the transactions. However, because the State established that on each occasion Colon took and apparently used a portion of the methamphetamine, the jury was at liberty to then reject the procuring agent defense. We affirm the two drug sales convictions because there was evidence to establish that Colon was not acting solely for Meyers, the recipient, in these transactions.
Meyers was a narcotics investigator for the Nevada Division of Investigations. He was not a drug recognition expert, but was familiar with recognizing persons under the influence of narcotics. An informant introduced Meyers to Colon at Colon's apartment in Carson City on July 22, 1993. Also present at the apartment was Colon's boyfriend, Jim. The informant asked Colon to obtain for Meyers a sixteenth of an ounce of methamphetamine for $100. Colon agreed and tried unsuccessfully to contact a source by telephone. Meyers then drove Colon and the informant to the Indian Hills area to obtain the drug. Colon told Meyers that she had recently bailed her source out of jail after he had been arrested for possession of methamphetamine. She had been dealing with this source for some time. In looking for the source, Colon had Meyers drive to a house where she said a quantity of marijuana was being grown indoors. Meyers testified that police later arrested the owner of the house.
Colon finally located her source, who told her to meet him alone at a grocery store. As Meyers drove Colon to the grocery store, they saw Jim walking, and Colon said that she had sent him to get some marijuana for some other people. According to Meyers, Jim "was walking right towards the location where the marijuana grow was." When Meyers dropped Colon off at the store, Colon said that she wanted a pinch of the methamphetamine. 1 When he indicated some reluctance, she said that if she did not get a pinch, she would not get the drug for him. Meyers told her to do what she had to do and gave her $100. He estimated that a sixteenth ounce of methamphetamine was selling for $80 to $100 at that time. Meyers left the grocery store and picked Colon up a little later. She produced some methamphetamine and said, " " It appeared to Meyers from a change in Colon's demeanor that she had ingested some of the methamphetamine; she seemed happier, more active, and more talkative. He also thought she had used some because the amount she gave him appeared to be quite a bit less than a sixteenth ounce. She asked for another pinch, but he said that it was short already and that maybe she could have more another time if he made a larger purchase. Colon told Meyers that if he wanted more methamphetamine, her source could bring it to her apartment that afternoon.
Meyers went to Colon's apartment again in mid-August of 1993 and tried to get more information about the indoor marijuana in Indian Hills. Another man was present at that time, and Meyers testified he wanted to obtain a half ounce of marijuana. Defense counsel objected on the grounds that the testimony was hearsay and irrelevant character evidence. The district court ruled that no hearsay had been presented and that the evidence was admissible under NRS 48.045(2), which permits evidence of other bad acts to show intent, preparation, and proof of a motive. Meyers testified that the man who was present left to use a pay phone to try to locate some marijuana. Colon then asked Meyers if he wanted to buy more methamphetamine. He said maybe later. Meyers left and was to return later that day to give Colon and the man a ride downtown, but Meyers's supervisor did not allow him to return out of a concern for safety.
Meyers went to Colon's apartment again on August 31, 1993, and asked about buying an eighth ounce of methamphetamine, an "eight-ball." Meyers testified that an eighth ounce would be about seven grams and that the weight actually purchased is nearly always slightly lighter. Colon said an eighth ounce would cost $200. Also present at the apartment were Jim, Colon's sister, and two other men, Sam and Mike. Meyers returned later, and it appeared to him that the people in the apartment had just ingested methamphetamine; Colon was much more hyper than before. Jim told Meyers that the eight-ball would cost $225, and Meyers agreed and gave Colon $240. He did not expect to get change. Colon left with Sam and did not return for quite some time. After they returned, she took Meyers to a bedroom and handed him some methamphetamine. Meyers became upset because it was well short of an eight-ball. When he asked if Colon had taken half of it, she got angry and left the room. Meyers asked Sam if they had used half of it, and Sam said, "Yes." Jim then came in and told Meyers that he would make it right and that Meyers should deal with him from that point on. Meyers did not get any of the $240 back.
Meyers returned to Colon's apartment in September but was not able to buy any drugs from her. She was later arrested and charged with two felony counts of selling a controlled substance.
On cross-examination of Meyers at the trial, defense counsel established that an eighth of an ounce weighs about three and a half grams, not seven. Meyers also explained that the amount of drugs purchased from street dealers was often less than the agreed upon amount because the dealer often takes some of the drugs for personal use before handing them to the buyer. Meyers admitted that the authorities had never arrested Colon's source or sources for the methamphetamine and had never ascertained that Colon had kept any of the purchase money provided to her by Meyers.
On redirect examination, the prosecutor asked why Meyers had agreed to some extent with defense counsel that the investigation had failed. Meyers responded that
as far as "failed," our goal is to start as high as we can and go up. If we have to start on the bottom--what we want to do is go up, meaning that we would arrest Ms. Colon and give her the opportunity to tell us her source, and take me or another undercover agent back to this source.
Q [PROSECUTOR] In fact, you guys did that, didn't you?
[DEFENSE COUNSEL]: Objection. I didn't open the door to post-arrest or post-incarceration investigations. It hasn't been asked, and it's not relevant.
After a discussion sidebar, the prosecutor continued:
Q Investigator Meyers, let me ask the question again: In fact, you, "you" meaning the Tri-Net Task Force, gave Ms. Colon the opportunity to cooperate, did you not?
[PROSECUTOR] Who at the task force was involved in dealing with Michelle?
A I believe Investigator Heinrich, possibly Investigator VanDalinda. Investigator Heinrich was. Investigator Howell was for sure. Supervisor Milby was, I'm sure.
Q You do have knowledge then that there was follow-up, is what I'm getting at, done with Michelle to try and get to her source; is that correct?
A That was my understanding, yes.
Colon did not appear for the second and final day of trial; no comment regarding her absence was made to the jury before it rendered a verdict. Defense counsel did not object to any of the jury instructions or offer any additional instructions.
In closing argument, the prosecutor asserted: "If we couldn't get to her source, the fault lies somewhere besides with the State...." He argued that "there is no other evidence in this case but that Michelle Colon sold these drugs to Investigator Meyers" and that defense counsel
In his closing argument, defense counsel stressed to the jury that the investigation "did not result in the arrest or conviction of any of the people that were selling the drugs, but resulted in the arrest of Michelle Colon, and in that regard, Michelle Colon is left holding the bag...." He argued that Colon had procured and possessed the drugs but was not guilty of selling them.
In final closing argument, the prosecutor said:
Are there facts which establish beyond a reasonable doubt that she sold drugs to Investigator Meyers? Yes. Why?
She's an out-of-work addict. She's a person who needs to support her habit, her use. How else is she going to do it, ladies and gentlemen? Where's the money going to come from?
He also stated: "She never denied using the methamphetamine on either occasion."
Jury instructions placed the burden on the State to prove beyond a reasonable doubt that Colon was not a procuring agent. The jury found Colon guilty of two counts of sales of a controlled substance. The district court sentenced her to two consecutive six-year prison terms. 2
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