People v. Pollard

• Decision Date: 09 May 2013
• Docket Number: No. 10CA0962,10CA0962
• Citation: 307 P.3d 1124
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Phillip James POLLARD, Defendant–Appellant.
• Court: Colorado Court of Appeals

307 P.3d 1124

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

v.Phillip James POLLARD, Defendant–Appellant.

No. 10CA0962

Colorado Court of Appeals, Div. III.

Announced March 14, 2013

As Modified on Denial of Rehearing May 9, 2013

Arapahoe County District Court, No. 05CR3741, Honorable J. Mark Hannen, Judge

John W. Suthers, Attorney General, Nicole D. Wiggins, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee

Springer and Steinberg, P.C., Michael P. Zwiebel, Denver, Colorado, for Defendant–Appellant

Opinion by JUDGE DAILEY

¶ 1 Defendant, Phillip James Pollard, appeals the judgment of conviction entered on a jury verdict finding him guilty of possession of more than one gram of cocaine. He also appeals his adjudication as an habitual offender, for sentencing purposes. We reverse and remand for a new trial.

¶ 2 The police spotted defendant's unoccupied car at 3 a.m. in an otherwise vacant parking lot in a park. Approaching the car to ensure that it was not stolen, an officer, when looking inside the vehicle, noticed on the center console a plastic bag containing a substance he believed to be crack cocaine. When defendant—who had been walking around the park with a female friend—returned to his vehicle, he told the police that the car was his and that the substance on the center console was probably bubble gum.

¶ 3 Defendant was asked but refused to give the police consent to search his car; he was subsequently arrested; and the bag—containing 2.66 grams of cocaine—was seized from the vehicle. Drug paraphernalia—in the form of a crack pipe, a glass vial, and two resealable cloth bags—was in the friend's purse but nowhere else in the car.

¶ 4 At trial, defendant asserted that the cocaine belonged to the friend, not him, and that he did not know that it was in his car. The friend testified that the cocaine belonged to her, that she had brought it with her in her purse, that defendant did not know she had it with her, and that she had placed it on the center console only after defendant had gotten out of the car. In argument, defendantattributed the decision to charge and prosecute him, rather than his friend, to racial stereotyping, that is, to an assumption that, because he was black, the drugs were his and he was using them to obtain sex from his “friend,” a white woman.

¶ 5 The prosecution presented, for the purpose of showing motive, knowledge, identity, and absence of mistake or accident, evidence of a drug transaction that occurred fourteen months after the charges arose in this case. On that subsequent occasion, defendant sold crack cocaine to a woman in a grocery store parking lot; he was apprehended shortly thereafter by police; and crack cocaine was recovered from the center console of his car.

¶ 6 The jury convicted defendant, as charged, and, after adjudicating him as an habitual offender, the trial court sentenced him to a term of twenty-four years incarceration.

I. Other Bad Act Evidence

¶ 7 Defendant contends that the trial court erroneously admitted evidence of his subsequent drug transaction with the woman in the grocery store parking lot. We disagree.

¶ 8 Despite his earlier objection to the receipt of other bad act evidence, at trial defendant admitted that it was relevant. He argued, though, that the evidence should be admitted only in the prosecution's rebuttal case because “questions of motive or accident, or inadvertence, mistake, have not yet been raised.” The court disagreed, ruling that the prosecution was not limited to presenting the evidence on rebuttal because there were “contested issues linking Defendant to this crack cocaine.”

¶ 9 On appeal, defendant reiterates his initial objection to the receipt of the evidence, that is, that it was inadmissible under CRE 404(b).

¶ 10 Trial courts have considerable discretion to decide questions concerning the admissibility of evidence, People v. Rath, 44 P.3d 1033, 1043 (Colo.2002), and an abuse of discretion will only be found upon a showing that the court misconstrued or misapplied the law or otherwise reached a manifestly arbitrary, unreasonable, or unfair result. See generallyPeople v. Garcia, 169 P.3d 223, 226 (Colo.App.2007).

¶ 11 Evidence of other bad acts is inadmissible if its relevance depends only on an inference that the person has a bad character and acted in conformity therewith. CRE 404(b); People v. Cooper, 104 P.3d 307, 309 (Colo.App.2004).

¶ 12 Under CRE 401, 403, and 404(b), however, a trial court may admit evidence of a defendant's other bad acts if (1) the evidence is offered for a proper purpose; (2) the evidence is logically relevant to a material issue in the case; (3) its relevance is independent of the intermediate inference that the defendant has a bad character; and (4) its probative value is not substantially outweighed by the danger of unfair prejudice. Rath, 44 P.3d at 1038.

¶ 13 On appeal, defendant contends that the evidence was not admissible for any of the purposes for which the court admitted it; that any purpose for which the evidence was proffered could not be proven from the subsequent transaction independently of an inference of bad character; and, that, in any event, the probative value of the evidence was substantially outweighed by the danger of unfair prejudice. We are not persuaded.

¶ 14 In our view, the trial court acted within the scope of its discretion in admitting evidence of defendant's subsequent possession and distribution of crack cocaine, particularly for the purpose of establishing his knowing possession of the crack cocaine in this case.

¶ 15 Defendant had originally told the police that the substance in the center console of his vehicle was probably bubble gum. Evidence of defendant's subsequent possession of crack cocaine found, again, in the center console of his car tended to prove, independently of any inference of bad character, that he was aware of the presence and nature of the crack cocaine in his car on this occasion as well. See generallyUnited States v. Davis, 636 F.3d 1281, 1298 (10th Cir.2011) (“We have consistently ‘recognized the probative value of uncharged acts to show motive, intent, and knowledge, whether the acts involved previous conduct or conduct subsequent to the charged offense, as long as the uncharged acts are similar to the charged crime and sufficiently close in time.’ ”) (quoting United States v. Zamora, 222 F.3d 756, 762 (10th Cir.2000)); United States v. Olivo, 80 F.3d 1466, 1468–69 (10th Cir.1996) (no error in admitting evidence of subsequent, similar narcotics activity separated by more than a year from the charged offense to show intent, knowledge, and lack of accident or mistake).

¶ 16 Further, assuming, as we must on appeal, the maximum probative value that a reasonable fact finder might give the evidence and the minimum unfair prejudice to be reasonably expected, People v. James, 117 P.3d 91, 94 (Colo.App.2004), we cannot conclude that the trial court was compelled to exclude the evidence because it was of such a character that the jury would have necessarily overlooked its legitimate probative force due to an overmastering hostility toward defendant.

¶ 17 Thus, we perceive no abuse of the court's discretion in admitting the other bad act evidence in this case. SeeOlivo, 80 F.3d at 1468–69; see alsoUnited States v. Kelley, 187 Fed.Appx. 876, 885 (10th Cir.2006) (evidence of defendant's sale of methamphetamine was admissible to show defendant's knowledge that the substance he was dealing with two and a half months earlier was methamphetamine); cf.People v. Warren, 55 P.3d 809, 815 (Colo.App.2002) (“[B]ecause defendant claimed a lack of knowledge, evidence that she had previously supplied methamphetamine to her roommate tended to make more probable than not that she was indeed aware of the methamphetamine in her bedroom dresser.”).

II. Defendant's Refusal to Consent to a Search of the Car

¶ 18 Defendant contends that reversal is required because the prosecution improperly elicited evidence of, and commented on, his refusal to consent to a search of his car. We agree.

¶ 19 At the inception of its opening statement, the prosecution informed the jury that “[t]his is a straightforward case wherein a failure to act speaks louder than words.” Subsequently, the prosecution told the jurors that, on two occasions, defendant had refused to give his keys to the police so that they could search his car, saying, on the first occasion, “Nobody's searching my car,” and, on the second occasion, “I'm not giving you my keys.”

¶ 20 Consistent with its opening statement, the prosecution elicited testimony, on direct examination, (1) from one officer, that the officer asked defendant “for consent to search his car and remove that bag,” and was told by him “that nobody searches his car”; and (2) from a second officer, that defendant was “not real cooperative,” in that he was not complying with requests to or “readily willing” to “open the door” so that police could recover whatever was sitting on the console. In rebuttal, the prosecution again elicited evidence from the first officer that, when asked for consent to search his car, defendant responded by saying, “Nobody searches my car.”

¶ 21 In closing argument, the prosecution stated:

[One officer] ... heard the Defendant essentially being uncooperative in terms of let me look at you [sic] car.... [T] he officer's bells are going off. I want to check it out. And the Defendant's saying, no, no, no.... I [t]'s proper for you to consider that evidence, because, again, the Judge let it in. And when you consider that your reason and common sense tells you what does he have to hide? Why not let him go in?

¶ 22 Defendant objected neither to the evidence of, nor to the prosecution's comment about, his refusal to consent to a search of the car. Consequently, reversal is not warranted in the absence of plain error. SeeCrim. P. 52(b).

¶ 23 In Hagos v. People, 2012 CO 63, 288 P.3d 116, the...