State v. Maduro, 01-232.

Decision Date25 October 2002
Docket NumberNo. 01-232.,01-232.
Citation816 A.2d 432
CourtVermont Supreme Court
PartiesSTATE of Vermont v. Samuel MADURO.

William H. Sorrell, Attorney General, and David Tartter, Assistant Attorney General, Montpelier, for Plaintiff-Appellee.

Allison N. Fulcher of Martin & Associates, Barre, for Defendant-Appellant.

Present: AMESTOY, C.J., DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.

MORSE, J.

Defendant Samuel Maduro, also known as Samuel Penney, appeals from the district court's judgment of conviction following a jury trial on charges of delivery of cocaine in violation of 18 V.S.A. § 4231(b)(3) and conspiracy to sell cocaine in violation of 13 V.S.A. § 1404(a). He argues on appeal that the trial court improperly admitted evidence of prior uncharged bad acts as direct evidence of the conspiracy, as well as evidence of intent on the delivery charge, and that the court erroneously denied his motion for judgment of acquittal on the charge of delivery. Because we agree that the evidence was erroneously admitted, we reverse and remand for a new trial.

The charges at issue stem from events occurring in the spring of 1999. The affidavit submitted in support of the charges alleged that, between February 1999 and May 1999, defendant engaged in a conspiracy to sell cocaine. As laid out in the affidavit, the conspiracy consisted of the defendant providing materials such as crack cocaine, cash and scales to a juvenile, K.M., to hold for him when police searched his apartment pursuant to conditions of his furlough status, and included, on one occasion, asking K.M. to give crack cocaine to an individual in exchange for cash at defendant's apartment while he was not there. The affidavit also alleged that on May 1, 1999, defendant delivered to K.M. roughly seventy-seven grams of crack cocaine to hold for him, which K.M. provided to the police when they contacted her in the course of investigating defendant's activities.

Defendant was charged with the above crimes in June 1999. A little less than a month before the case was set to go to trial in September 2000, the State disclosed an additional witness it intended to call who would provide "prior bad act" evidence. Specifically, the State intended to call Keith Merrow to testify that defendant provided him with powder and crack cocaine at their common workplace to sell between January and May 1999. Defendant moved in limine to exclude the evidence. In response, the State argued that the evidence was not only admissible to show intent with regard to the conspiracy charge, but was also direct evidence of the conspiracy itself because Merrow also formed part of that conspiracy. The court heard argument on the motion the first day of trial and denied defendant's motion. The court decided to let the evidence in, both as direct evidence of the conspiracy itself and for the purpose of showing plan and intent on the conspiracy offense.

The trial resulted in a hung jury on both charges. Prior to defendant's new trial, he again moved to exclude Merrow's testimony. In response, the State simply renewed its previous arguments in opposition to defendant's motion. At no time, however, between the first and second trial did the State attempt to amend its information charging defendant with conspiracy in any way, nor did it bring any additional charges against defendant. The trial court issued an order indicating the motion would be taken up at the beginning of trial. Following a short discussion revisiting its original ruling, the court indicated that it would not change the ruling and thus would make the same ruling on defendant's new motion.

Accordingly, Merrow testified at trial that he had met defendant in jail and then later worked with him for the same employer. He stated that defendant approached him at work and asked if he would sell cocaine for him. Merrow agreed to do so and worked out an arrangement in which he found customers, found out how much of the drug they wanted, and then procured it from defendant. He would then receive a percentage of the sale. Merrow stated that defendant did not know who his customers were and that he never brought the customers to defendant's apartment. He then testified that he remembered seeing a young girl at defendant's apartment on some of the occasions when he would visit to pick up drugs. He also testified, however, that K.M. — presumably the young girl, although never directly identified by Merrow — did not participate in any of his transactions, did not provide him with drugs or money, and was never a witness to the transfers from defendant. Following Merrow's testimony, the trial court determined that the whole of his testimony went to the charged conspiracy and thus there was no need for any limiting instructions to the jury at that point in the trial. Defendant objected, and the court overruled his objection. At the close of trial, during the jury charge, the court affirmatively instructed the jury that it could consider Merrow's testimony as direct evidence of the conspiracy charge involving K.M. It also added, however, that, if the jury determined that Merrow's testimony was related to a separate uncharged conspiracy, it could still consider the evidence

as proof of the opportunity to commit the crimes of which the defendant is charged; the defendant's intent to commit the crimes of which he is charged; the defendant's preparation for and plan to commit the crimes of which he is charged; the defendant's knowledge and absence of mistake in committing the crimes he is accused of.

After the charge to the jury, defendant objected to the above-quoted portion, requesting that the court limit the instruction to the conspiracy charge and direct the jury not to consider it as evidence of opportunity, etc., with regard to the delivery charge. Defendant argued that the testimony did not demonstrate those things with respect to the charged delivery, and that it also was unfairly prejudicial with respect to the delivery charge. The court declined to do so. Defendant now appeals to this Court.

Defendant argues that the trial court's decision that the evidence was admissible as direct evidence of the charged conspiracy, as well as its ultimate admission of the evidence for somewhat more limited purposes under V.R.E. 404(b) on the delivery charge, was reversible error. More specifically, defendant first argues that the trial court erroneously determined that V.R.E. 404(b) did not apply to the evidence with regard to the conspiracy charge. He contends that the testimony was not direct evidence of the charged conspiracy, but was instead evidence of a separate uncharged conspiracy. In other words, defendant argues that the trial court erroneously determined that the Merrow testimony was directly relevant as res gestae evidence with respect to the charged conspiracy.

We have previously noted that "[c]rimes which form a body of evidence relating to the events surrounding the crime of which a defendant is charged are part of the res gestae." State v. Norton, 147 Vt. 223, 235, 514 A.2d 1053, 1061 (1986). As such, they do not require a limiting instruction that would otherwise accompany evidence of uncharged bad acts. Id. As another court has noted, res gestae evidence "is generally linked in time and circumstances with the charged crime, or forms an integral and natural part of an account of the crime," and "is not subject to the general rule that excludes evidence of prior criminality." People v. Quintana, 882 P.2d 1366, 1373 (Colo.1994) (internal quotation marks and citations omitted) (holding three separate statements threatening to kill other people, made in the course of killing another individual, each constituted part of res gestae of a single incident of murder, as opposed to separate uncharged bad acts). In fact, the trial court explicitly relied on Quintana when it concluded that Merrow's testimony described acts that formed part of the charged conspiracy.

The determination of what acts constitute the res gestae of a single conspiracy, as opposed to multiple separate conspiracies, presents special challenges for a court, however. Cf. 2 W. LaFave & A. Scott, Substantive Criminal Law § 6.5(a), at 89 (1986) ("The breadth of the law of conspiracy makes it subject to prosecutorial and judicial abuse.") (footnotes omitted); see also United States v. Evans, 970 F.2d 663, 668 (10th Cir.1992) (court is "mindful that the conspiracy doctrine is inherently subject to abuse and that the government frequently uses conspiracy to cast a wide net that captures many players"). The United States Supreme Court addressed the problem and the ensuing consequences of conflating multiple conspiracies with a single conspiracy in Kotteakos v. United States, 328 U.S. 750, 769-77, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946), a case in which the government charged a single conspiracy involving thirty-two defendants. It noted the confusion of "the common purpose of a single enterprise with the several, though similar, purposes of numerous separate adventures of like character," in a scenario involving "separate spokes meeting in a common center, though ... without the rim of the wheel to enclose the spokes." Id. at 755, 769, 66 S.Ct. 1239 (internal quotation marks omitted).

Notably in this case, the charge involves only defendant, and the affidavit in support of the charge names only K.M. as a coconspirator. No mention is made of defendant's activities with Merrow in the charging documents. Cf. Evans, 970 F.2d at 674 n. 13 ("The government has the power to define the scope of the conspiracy as broadly as it thinks the facts will justify, but if it fails to prove the conspiracy as charged, it will fail to obtain a conviction."). Nevertheless, the court determined that the activities formed part of the conspiracy and thus allowed the evidence in directly. We cannot agree.

When determining whether one or multiple conspiracies exist, courts have looked for the existence of "(1) a common...

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1 cases
  • State v. Myers
    • United States
    • Vermont Supreme Court
    • May 18, 2011
    ...they “form[ed] a body of evidence relating to the events surrounding the crime of which a defendant is charged.” State v. Maduro, 174 Vt. 302, 306, 816 A.2d 432, 435 (2002) (quotation omitted). ¶ 7. In March 2006, the case was set for a jury draw. During voir dire, apparently in response to......

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