State v. Lee, 02-512.

• Decision Date: 19 August 2005
• Docket Number: No. 02-512.,02-512.
• Citation: 886 A.2d 378
• Parties: STATE of Vermont v. Lamont LEE.
• Court: Vermont Supreme Court

886 A.2d 378

STATE of Vermont v. Lamont LEE.

No. 02-512.

Supreme Court of Vermont.

August 19, 2005.

William D. Wright, Bennington County State's Attorney, and Brian K. Marthage, Deputy State's Attorney, Bennington, for Plaintiff-Appellee.

Matthew F. Valerio, Defender General, and Anna Saxman, Deputy Defender General, Montpelier, for Defendant-Appellant.

Present: DOOLEY, JOHNSON, SKOGLUND and REIBER, JJ., and ALLEN, C.J. (Ret.), Specially Assigned.

¶ 1. DOOLEY, J.

Defendant appeals his convictions on two counts of felony sale of cocaine, possession of marijuana, and attempting to elude a police officer. He argues that he was unfairly prejudiced by the admission of photographic evidence of two guns the police found during searches of defendant's home and vehicle. Defendant also challenges the court's jury instructions. We affirm.

¶ 2. In August 2000, defendant was living in Pownal with his girlfriend and her mother, Beverly Washington. Beverly became concerned that defendant was dealing drugs, and she contacted law enforcement authorities. Eventually, Beverly spoke with a trooper assigned to the Southern Vermont Drug Task Force (SVDTF) and agreed to assist him in an investigation of defendant's activities. Thereafter, Beverly purchased cocaine from defendant on two occasions while wearing a hidden recording device. The investigation ended when Beverly informed her contact at SVDTF that defendant had acquired two guns. The information prompted the trooper to arrest defendant.

¶ 3. On August 30, 2000, the police were watching defendant's residence when they saw defendant drive towards Route 7. The officers signaled for defendant to pull over, but he drove away. After some pursuit, defendant pulled his vehicle over to the side of the road, jumped out of the still moving vehicle, and ran. The police eventually caught up with defendant, arrested him, and searched his home and vehicle pursuant to a search warrant. During the search of defendant's car, the police found an unloaded .410 caliber gun on the driver's side floor. Another gun, along with marijuana, was found in a closet off of the bedroom defendant shared with his girlfriend. ¶ 4. On August 31, 2000, the State filed informations in district court charging defendant with attempting to elude a police officer, possession of marijuana, and two counts of felony sale of cocaine. In May 2002, defendant filed notice with the court that he intended to raise entrapment as an affirmative defense. Defendant also filed motions in limine to exclude certain evidence, two of which are relevant to this appeal. The first sought to exclude photographic evidence of the gun found in defendant's car and the gun found in the bedroom where defendant was staying. Defendant argued that the gun evidence would unfairly prejudice him because it lacked any probative value. Defendant's motion noted that because he was a previously-convicted felon, possession of the guns was a federal offense, and he had already been convicted and sentenced for this offense in federal court.

¶ 5. The second motion in limine related to evidence of a nighttime intrusion into defendant's residence by two men sometime between August 24 and August 28, 2000. The intruders ransacked defendant's room, assaulted him, and tied up him and his girlfriend. The intruders shouted references to crack cocaine during the break-in and assault. Defendant argued that evidence of the home invasion was overly prejudicial and irrelevant to the charges against him.

¶ 6. The court excluded evidence of defendant's federal gun conviction and the intrusion into defendant's home, and admitted the photographs of the guns. The court found that the gun evidence was probative of three issues. First, the presence of a gun in defendant's car could explain why he ran away from the police. Second, the guns were tools of the drug trade. Third, the fact that he possessed two firearms could rebut an inference that Beverly and the police entrapped him into selling cocaine—defendant's primary defense to the drug-sale charges.

¶ 7. Before the second day of trial began, defendant's attorney announced that he wanted to present evidence about the break-in. He argued that the gun evidence was so prejudicial to defendant that he was compelled to rebut it by introducing the break-in to support defendant's claim that he obtained the guns for protection. Noting that defendant's decision was a strategic one, the court ruled that it would permit him to introduce limited evidence about the break-in. The jury eventually convicted defendant of all the charges against him, and this appeal followed.

¶ 8. We first address defendant's claim that the trial court erred in admitting the gun evidence. In deciding whether to admit evidence, the court must make an initial determination that the evidence is relevant. V.R.E. 402 ("All relevant evidence is admissible, except as limited by constitutional requirements or as otherwise provided by statute.... Evidence which is not relevant is not admissible."). Relevant evidence encompasses any evidence that makes the existence of a fact that is "of consequence to the determination of the action" more probable than not. V.R.E. 401. If relevant, the court may still exclude the evidence "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." V.R.E. 403.

¶ 9. Defendant argues that evidence of his gun possession was irrelevant to the crimes for which he was charged, and, even if relevant, its probative value was so limited and its prejudicial impact so great that it had to be excluded under Rule 403. The State responds that evidence of the gun found in the closet was relevant to show he possessed the marijuana also found in the closet, and evidence of the gun found in the car was relevant to show his motive to elude the police when they attempted to arrest him.

¶ 10. The decisions from other jurisdictions, particularly from the federal courts, overwhelmingly support the main ground on which the court relied—that the guns are relevant to show defendant is a drug dealer.¹ Thus, in a leading case, the United States Court of Appeals for the Second Circuit held: "Experience on the trial and appellate benches has taught that substantial dealers in narcotics keep firearms on their premises as tools of the trade almost to the same extent as they keep scales, glassine bags, cutting equipment and other narcotics equipment." United States v. Wiener, 534 F.2d 15, 18 (2d Cir.1976). Other circuits have affirmed admission of gun evidence on the same rationale. See United States v. Martinez, 938 F.2d 1078, 1082-83 (10th Cir. 1991) (admitting evidence of semi-automatic submachine gun found in house defendant entered during drug transaction as "tools of the trade") (collecting cases); see also United States v. Ward, 171 F.3d 188, 195 (4th Cir.1999) ("Guns are tools of the drug trade and are commonly recognized articles of narcotics paraphernalia."); United States v. Price, 13 F.3d 711, 719 (3d Cir.1994) (recognizing that evidence of gun possession was highly probative of drug conspiracy); United States v. Fagan, 996 F.2d 1009, 1015 (9th Cir.1993) (affirming admission of evidence of a gun and ammunition found in residence of defendant charged with possession and distribution of cocaine). Defendant argues that this relevancy theory does not apply in this case because the drug sales occurred before defendant acquired the guns. The relevancy theory does not depend on the use of the guns in the drug sale.² See Martinez, 938 F.2d at 1083 (explaining that it is "basically immaterial to the admissibility inquiry" whether defendant has been charged with an offense involving use of the gun); State v. Smith, 1992 WL 61363, at *3, No. CA-8715 (Ohio Ct.App. Mar. 16, 1992). The dissent emphasizes that defendant obtained possession of the guns after the date of the drug sales for which he is charged. While the time gap between the drug sales and the possession of the guns may go to the weight of the evidence, we do not believe that it makes the gun evidence irrelevant, as the dissent argues.³ In fact, defendant had owned the guns before the drug sales, but had left them with a friend, apparently because it was a federal offense for defendant to possess a gun.

¶ 11. In addition to challenging relevancy, defendant makes the stronger argument that the gun evidence should have been excluded under Rule 403 as unduly prejudicial. Here, however, defendant must overcome a very deferential standard of review. Rule 403 rulings are "highly discretionary," State v. Gibney, 2003 VT 26, ¶ 23, 175 Vt. 180, 825 A.2d 32, even more so when they refuse to exclude evidence because the rule provides that the danger of unfair prejudice must substantially outweigh the probative value of the evidence. State v. Percy, 158 Vt. 410, 415, 612 A.2d 1119, 1123 (1992). "Absent an abuse of discretion, in which the court either totally withholds or exercises its discretion on clearly untenable or unreasonable grounds, the trial court's evidentiary ruling stands on appeal." State v. Ogden, 161 Vt. 336, 341, 640 A.2d 6, 10 (1993). Defendant's prejudice argument is essentially that the jury would give too much weight to the gun evidence, especially because defendant is black, finding that he was a drug dealer solely because he possessed guns.

¶ 12. We conclude that the balance to be struck falls within the wide discretion of the trial court. See Ward, 171 F.3d at 195 (decision whether to admit gun evidence in a drug sales prosecution must be made on a case-by-case basis by the trial court). The trial court noted that the guns were probative of whether defendant was involved in the drug transactions, and that possession of firearms is common in Vermont so the danger of unfair prejudice was...