People v. Davis

• Decision Date: 04 May 2017
• Docket Number: Court of Appeals No. 14CA0842
• Court: Colorado Court of Appeals
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Kelly Gene DAVIS, Defendant-Appellant.

488 P.3d 186

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Kelly Gene DAVIS, Defendant-Appellant.

Court of Appeals No. 14CA0842

Colorado Court of Appeals, Division II.

Announced May 4, 2017

Cynthia H. Coffman, Attorney General, Brock J. Swanson, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Douglas K. Wilson, Colorado State Public Defender, Anne Stockham, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE J. JONES

¶ 1 Defendant, Kelly Gene Davis, appeals the judgment of conviction entered on a jury verdict finding him guilty of conspiracy to distribute a schedule II controlled substance and court verdicts finding him guilty on several habitual criminal charges. His primary contention on appeal is that the People were required to prove, and the jury was required to find, that he committed a particular overt act in furtherance of the alleged conspiracy. We hold, however, that where the People properly charge a single conspiracy, they are required to prove only that the defendant committed an overt act in furtherance of the conspiracy; that is, the jury must agree unanimously that the defendant committed such an overt act, but it need not agree unanimously that the defendant committed a particular overt act. It follows that the district court did not err in failing to require the prosecution to elect a particular overt act on which it was relying to prove the charge or in failing to give the jury a special unanimity instruction. Because we also reject defendant's other contentions of error, we affirm the judgment of conviction.

I. Background

¶ 2 In January 2013, the Grand Junction Police Department and a Drug Enforcement Agency Taskforce began investigating the activities of Leonel Gonzalez-Gonzalez. The investigation entailed wiretapping several of Mr. Gonzalez-Gonzalez's telephones from February 2013 through April 2013. Police recorded several telephone calls between him and defendant during that time.

¶ 3 As a result of the investigation, the People charged defendant with one count of conspiracy to distribute a schedule II controlled substance (methamphetamine) and several habitual criminal counts.

¶ 4 At trial, Deziree Fisher, a named co-conspirator, testified to participating in and witnessing drug transactions involving defendant. She said that she provided defendant with drugs, which he would then sell, using the money he made to pay her back. Ms. Fisher also said that she had been convicted of intent to distribute a controlled substance for her role in drug sales involving defendant and other co-conspirators, and that she was testifying in the hope of receiving a sentence reduction.

¶ 5 Terry Lawrence testified that he was present in January or February 2013 when Mr. Gonzalez-Gonzalez and his associate delivered an ounce or more of methamphetamine to defendant and collected money from him. At the time of the trial, Mr. Lawrence had been charged with racketeering and conspiracy to distribute drugs. He testified that he had not yet been convicted or entered into a plea agreement, and that he was testifying in the hope of receiving a favorable plea offer.

¶ 6 Detective Jason Sawyer testified that in phone calls recorded in February through April 2013, Mr. Gonzalez-Gonzalez agreed to supply defendant with methamphetamine to sell. He also testified that a series of recorded calls from April 1, 2013, showed Mr. Gonzalez-Gonzalez and defendant planning to rent a car to use to pick up drugs. Police officers watched the car rental franchise where the two had arranged to meet and identified one of the people who arrived at the meeting as defendant.

¶ 7 A jury convicted defendant of the conspiracy charge, and the district court, after finding that defendant was a habitual criminal, sentenced him to forty-eight years in the custody of the Department of Corrections.

II. Discussion

¶ 8 Defendant contends that the district court erred in (1) not (a) requiring the prosecution to elect the overt act on which it was relying to prove the conspiracy charge or (b) giving the jury a special, modified unanimity instruction regarding the particular overt act; (2) not providing a limiting instruction to preclude the jury from considering witnesses' guilty pleas or desires to plead guilty as evidence of his guilt; and (3) imposing an aggravated sentence based on its own findings of prior criminality. We address and reject each contention in turn.

A. Unanimity

1. Preservation and Standard of Review

¶ 9 The parties agree that this issue was not preserved: defense counsel never requested that the prosecution elect a particular overt act, nor did counsel request a special unanimity instruction. Because of this, the People argue that defendant waived his contention. That is so, they say, because defendant didn't make a duplicity challenge under Crim. P. 12(b). See Specht v. People , 156 Colo. 12, 16, 396 P.2d 838, 840 (1964) (a duplicity challenge is waived if not raised before trial); Russell v. People , 155 Colo. 422, 426, 395 P.2d 16, 18 (1964) (same).¹ But defendant isn't making a duplicity challenge on appeal: he isn't arguing that the People charged more than one offense in a single count. See Specht , 156 Colo. at 16, 396 P.2d at 840 ; Russell , 155 Colo. at 426, 395 P.2d at 18.² Rather, he argues that because the prosecution presented evidence of more than one overt act in furtherance of the conspiracy, it should have been required to elect or the court should have given the jury a special unanimity instruction. Because he doesn't assert that there is a defect in the charging document, Crim. P. 12(b) doesn't apply and there was no waiver. See Reyna-Abarca v. People , 2017 CO 15, ¶¶ 38-45, 390 P.3d 816.

¶ 10 Reviewing defendant's contention requires us to determine whether the court erred and, if so, whether the error requires reversal.

¶ 11 Determining whether to require the prosecution to elect a particular act on which it is relying to prove a charge involves an exercise of the district court's discretion, see Thomas v. People , 803 P.2d 144, 154 (Colo. 1990), as does determining whether to give a particular jury instruction, People v. Marks , 2015 COA 173, ¶ 53, 374 P.3d 518. So in reviewing both decisions for error, we must decide whether the district court abused its discretion.

¶ 12 But where the court did not have the opportunity to exercise discretion because the defendant did not move for an election or request the instruction now claimed to have been required, how can we even determine whether the court abused its discretion? We can do so by framing the inquiry in a slightly different way: had the defendant timely moved for an election or asked for the instruction, would the court have abused its discretion in refusing either of those requests?

¶ 13 If, in this case, we answer that question "yes" with respect to either requiring an election or instruction, because defendant did not timely move for an election or ask for an instruction, we must then determine whether the error was plain. Under that standard, we will reverse only if the error is obvious and so undermined the fundamental fairness of the trial as to cast serious doubt on the reliability of the judgment of conviction. People v. Miller , 113 P.3d 743, 750 (Colo. 2005).

2. Analysis

¶ 14 In Colorado, jury verdicts in criminal cases must be unanimous. § 16-10-108, C.R.S. 2016; Crim. P. 23(a)(8), 31(a)(3) ; People v. Durre , 690 P.2d 165, 173 (Colo. 1984). To ensure jury unanimity, when the prosecution offers "evidence of multiple acts, any one of which would constitute the offense charged, the People may be compelled to elect the acts or series of acts on which they rely for a conviction." Melina v. People , 161 P.3d 635, 639 (Colo. 2007) (citing People v. Estorga , 200 Colo. 78, 81, 612 P.2d 520, 523 (1980) ). But when the People charge a defendant with crimes occurring in a single transaction, they do not have to elect among the acts that constitute the crime, and a special unanimity instruction—that is, one telling the jury that it must agree unanimously as to the act proving each element—need not be given. Id. at 639-42. The first issue before us, then, is what constitutes a single transaction in the context of a conspiracy charge.

¶ 15 The General Assembly's enactments necessarily inform our inquiry. Section 18-2-204(1), C.R.S. 2016, provides that "[c]onspiracy is a continuing course of conduct which terminates when the crime or crimes which are its object are committed." (Emphasis added.) Another statute also specifies that "[i]f a person conspires to commit a number of crimes, he is guilty of only one conspiracy so long as such multiple crimes are part of a single criminal episode." § 18-2-201(4), C.R.S. 2016. Read together, the applicable statutes make clear that a defendant can participate in a number of crimes or events to accomplish a single conspiracy. Put another way, committing a number of crimes, or engaging in a number of noncriminal overt acts, does not necessarily mean there is more than one conspiracy.

¶ 16 Accordingly, we must determine how broadly the prosecution may define a conspiracy without the charge encompassing multiple criminal episodes, consequently requiring either an election or a special unanimity instruction.

¶ 17 We begin with the principle that a single conspiratorial agreement may not be divided into multiple charges. E.g. , United States v. Papa , 533 F.2d 815, 820 (2d Cir. 1976) ; United States v. Young , 503 F.2d 1072, 1075 (3d Cir. 1974) ; United States v. Palermo , 410 F.2d 468, 470 (7th Cir. 1969). The Supreme Court explained this principle in Braverman v. United States , 317 U.S. 49, 53-54, 63 S.Ct. 99, 87 L.Ed. 23 (1942) :

Whether the object of a single agreement is to commit one or many crimes, it is in either case that agreement which constitutes the conspiracy which the statute punishes. The one agreement cannot be taken to be several agreements and

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