People v. Miller

Decision Date06 February 1995
Docket NumberNo. 93SC463,93SC463
Citation890 P.2d 84
PartiesThe PEOPLE of the State of Colorado, Petitioner, v. Gary Lee MILLER, Respondent. . En Banc
CourtColorado Supreme Court

Gale A. Norton, Atty. Gen., Stephen K. ErkenBrack, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., John Daniel Dailey, Deputy Atty. Gen., Robert Mark Russel, First Asst. Atty. Gen., Paul Koehler, Asst. Atty. Gen., Crim. Enforcement Section, Denver, for petitioner.

David F. Vela, State Public Defender, David M. Furman, Jamie Grimaldi, Deputy State Public Defenders Denver, for respondent.

Justice LOHR delivered the Opinion of the Court.

We granted certiorari to review the decision of the Colorado Court of Appeals in People v. Miller, 862 P.2d 1010 (Colo.App.1993), which reversed the judgment of conviction of Gary Lee Miller for offenses involving the possession and distribution of cocaine. The court of appeals' reversal was based on its holding that a criminal defendant who testifies in his own defense at trial automatically has the right to introduce evidence of his good character for truthfulness under CRE 404(a)(1) and that the trial court erred in denying Miller that right. The court of appeals also held that the trial court erred in allowing the prosecution to present evidence of uncharged other crimes without first obtaining a determination of admissibility outside the presence of the jury even though the prosecution did not present that evidence as part of its case in chief, but only to rebut the defendant's evidence. Because we conclude that the court of appeals erred in its analysis and resolution of those two issues, we reverse and remand the case to that court for consideration of the issues raised before it but not considered because of that court's remand of the case for a new trial.


The prosecution's case was based on evidence of two separate sales of cocaine by Miller on May 10, 1990, and cocaine discovered in his home and in his truck by execution of search warrants later that same day. At Miller's trial, testimony concerning the two sales was presented by a police informant, the informant's cocaine supplier, and police officers who maintained surveillance over the activities of the informant, the supplier, and Miller during the course of the day and who executed the search warrants. Miller testified in his own defense. He denied that he sold cocaine and offered innocent explanations for the activities observed by the police authorities and for the presence of the cocaine discovered in his home and truck.

The evidence presented by the prosecution supported the following version of the events. Police authorities in Loveland, Colorado, entered into an agreement with John Dean Bramwell that he would cooperate with the police by arranging to purchase cocaine from a supplier in exchange for concessions with respect to criminal charges pending against him and members of his family in cases unrelated to the one now before us. On May 10, 1990, the Loveland police attached a body microphone to Bramwell, gave him $1400 in cash that they had photocopied for identification purposes, and placed him under police surveillance. Bramwell went to the apartment of his friend and regular cocaine supplier, Brian McKinnon. He gave McKinnon the $1400 for one ounce of cocaine, and made arrangements to meet him an hour or two later to receive the cocaine. McKinnon then drove to the RC Thunder Speedway (the Speedway), owned by Miller and located in Loveland.

At the Speedway, McKinnon met with Miller and confirmed prior arrangements to purchase an ounce of cocaine for $1400. McKinnon placed the $1400 in the ashtray of Miller's truck and the two agreed that McKinnon would return later to pick up the cocaine. Miller then drove to his home and after a brief stay returned to the Speedway.

Meanwhile, McKinnon left the Speedway, only to return a few hours later. He entered the Speedway business office where Traci Kelley, who was a Speedway employee and Miller's girlfriend, handed him what appeared to be a box of cold medicine. McKinnon then returned to his apartment where Bramwell was waiting. McKinnon gave the box to Bramwell who looked inside and saw a vacuum sealed package containing a white powder. Bramwell then asked McKinnon if it would be possible to purchase five more ounces of cocaine and the two discussed the arrangements necessary for such a transaction. Bramwell left McKinnon's apartment and returned to his own residence where he delivered the box to the Loveland police authorities. The substance in the box proved to be cocaine.

McKinnon called Miller later that same day and arranged to purchase an additional five ounces of cocaine for $5500. They agreed to meet for dinner and complete the purchase. In the meantime, the Loveland police gave Bramwell $5750 in photocopied cash which Bramwell delivered to McKinnon. 1 McKinnon drove to the Speedway, went to dinner with Miller, and during their time together exchanged $5500 for a cracker box that contained cocaine in a vacuum sealed package. McKinnon returned to his own apartment where Bramwell was waiting and delivered the cracker box and its contents to Bramwell. Bramwell inspected the contents of the box and then gave a pre-arranged signal through his body microphone to the police authorities indicating that the exchange had been consummated. The police authorities entered the apartment, seized the cracker box, and arrested McKinnon. The box contained a white substance that later tested positive as cocaine.

The Loveland police authorities next obtained and executed search warrants for the Speedway, for Miller's residence and truck, and for Traci Kelley's truck. At Miller's residence, the police authorities found a small package of cocaine in a filing cabinet, the $1400 used to make the first cocaine purchase, and various other items, such as a vacuum packaging machine and scales. $5500 of the money earlier supplied to Bramwell was found in Kelley's truck. Two other sealed aluminum folds of cocaine were found in a black hip pouch inside Miller's truck.

Both Miller and Kelley were arrested. Miller was charged by an information in Larimer County District Court with two counts of aggravated distribution of cocaine, 2 a class three felony, and one count of possession of cocaine, also a class three felony. 3 Miller pleaded not guilty to each of the three counts. Kelley was separately charged, and the two cases were consolidated for trial.

Prior to his trial, Miller filed a "Motion For Disclosure of Prior Bad Acts," seeking an order requiring the prosecution to "disclose whether it intends to introduce any evidence in its case-in-chief regarding prior or subsequent criminal conduct against either defendant charged in this case." At a pretrial motions hearing on July 20, 1990, Miller argued that he had filed the motion to determine whether the prosecution intended to offer evidence pursuant to CRE 404(b). 4 The deputy district attorney indicated that he was "aware of no similar transactions specifically that the People will seek to introduce"; consequently, the trial court did not rule on the motion.

The jury trial in the two consolidated cases began on October 24, 1990. The first witness to testify for the prosecution was Brian McKinnon. He first acknowledged that he had received concessions with respect to criminal charges against him in exchange for his truthful testimony in Miller's case. He then related the events that had transpired on May 10, 1990, and explained how he had purchased first one and then five ounces of cocaine from Miller on that date. On cross-examination by Miller's attorney, the following colloquy ensued concerning the nature and extent of McKinnon's acquaintance with Miller:

DEFENSE COUNSEL (DC): Now, up until May 10, 1990, I believe that you told the police you didn't know Gary Miller's last name; is that correct?

McKinnon: That's correct.

DC: But you knew Gary Miller, right?

McKinnon: Yes.

DC: Isn't it true that you met Gary Miller at the Orchard Raceways, which are [sic] another raceway for radio control cars?

McKinnon: Yes.

DC: You weren't friends with Gary Miller, were you?

McKinnon: Not at that time, no.

DC: In fact, you were just acquaintances through the speedway?

McKinnon: Yeah.

DC: Did you ever have any discussions with Gary Miller about doing some work at the speedway, like designing a sign or anything like that?

McKinnon: Yes, I did.

DC: Can you tell me about that?

McKinnon: Ah, when he purchased the speedway out there, he was wanting to design up a logo and I had gone to college for drafting, and so we talked about doing up some sketches and doing up a sign for his shop.

DC: And so you had some business discussions with Mr. Miller, then?

McKinnon: Yes.


DC: You used to frequent [Miller's] race track to race your cars; isn't that true?

McKinnon: Yes.

DC: Is that basically the total of your relationship pertaining--with Mr. Miller, the car business?

McKinnon: Yes.

In somewhat confusing testimony, McKinnon also admitted on cross-examination that he had purchased cocaine on several previous occasions from an unnamed individual in California, someone other than Miller. The apparent purpose of this part of the cross-examination was to suggest that Miller was not the source of the cocaine obtained by McKinnon on May 10 because McKinnon and Miller were not closely acquainted and McKinnon had another supplier of cocaine.

On redirect examination the prosecution attempted to clarify McKinnon's testimony regarding his previous drug transactions with the other individual and the extent of the relationship between McKinnon and Miller.

PROSECUTING ATTORNEY (PA): Counsel for Mr. Miller asked you about a number of drug transactions that occurred prior to this one. Do you remember her asking those questions?

McKinnon: Yeah.

PA: And you admitted that there was a transaction that occurred two months earlier where...

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