State v. Nelson

• Decision Date: 10 December 2010
• Docket Number: No. 08-1384.,08-1384.
• Citation: 791 N.W.2d 414
• Parties: STATE of Iowa, Appellee, v. Calvin Clarence NELSON, Jr., Appellant.
• Court: Iowa Supreme Court

791 N.W.2d 414

STATE of Iowa, Appellee,
v.
Calvin Clarence NELSON, Jr., Appellant.

No. 08-1384.

Supreme Court of Iowa.

Dec. 10, 2010.

791 N.W.2d 416

Mark C. Smith, State Appellate Defender, and Nan Jennisch, Assistant State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Kevin R. Cmelik, Assistant Attorney General, John P. Sarcone, County Attorney, and Stephanie L. Cox and James P. Ward, Assistant County Attorneys, for appellee.

WIGGINS, Justice.

The State seeks further review of a court of appeals decision reversing a defendant's first-degree murder conviction. A jury found the defendant guilty of first-degree murder. On appeal, the court of appeals reversed the conviction because it concluded the district court should not have admitted evidence of the defendant's drug dealing. On further review, we find the evidence is not excludable under Iowa Rule of Evidence 5.404( b ). Therefore, we vacate the decision of the court of appeals and affirm the judgment of the district court.

I. Background Facts and Proceedings.

On the evening of June 26, 2007, Michael Collins and his girlfriend, Tracy Lewis, bought some crack and smoked it at a friend's house. Afterwards, Collins and Lewis left to purchase more crack. Eventually, they parked at the intersection of Seventh Street and Hickman Road in Des Moines.

Collins was willing to approach strangers to purchase crack. At approximately midnight, Collins got out of the car, took Lewis's cell phone, and told her he was going to walk to an apartment complex located at the intersection of Eighth Street and Jefferson Avenue where he had previously purchased crack. Accordingly, Collins

791 N.W.2d 417

began to walk south on Seventh Street while Lewis waited in the car. Lewis waited for approximately fifteen to twenty minutes and began to worry. Just as she was about to start the car and go looking for Collins, she heard two "pop pop" sounds. Lewis drove to the intersection of Seventh Street and Franklin Avenue and saw Collins lying in the grass.

Earlier, at approximately 11 or 11:30 p.m. the same day, Calvin Nelson Jr. and his paramour, Dody Lester, were at the Double Deuce bar. While there, Nelson received a phone call and told Lester that he had to "go make things right with a friend of his." Nelson told Lester his friend "wanted some stuff," but all he had was gank, which is fake crack. Eventually, Nelson and Lester drove to a house located at Seventh Street and Franklin Avenue, where Nelson's friend lived. When they pulled up to the house, there were a large number of people standing in the yard. Nelson repeatedly tried to call his friend but he would not answer. While there, Lester observed a white male talking on a cell phone on the corner of Seventh Street and Franklin Avenue. The white male was Collins.

Nelson finally got in touch with his friend and told him to meet Nelson on Eighth Street. Lester parked their vehicle on Washington Avenue between Seventh and Eighth Street; Nelson got out and waited in the road for his friend to arrive. His friend never arrived, but Collins approached Nelson and the two began to converse. In response to Collins' statements, Lester heard Nelson say twice, "I don't know what you're talking about." Subsequently, Nelson got back into the vehicle with Lester, and they again headed towards Seventh Street and Franklin Avenue.

As they pulled up to Seventh Street and Franklin Avenue, Nelson saw his friend standing outside. Nelson exited the vehicle, while Lester waited inside. Nelson and the friend talked for a few minutes, and then Collins approached Nelson again. Nelson said, "Who are you, dude?" Nelson's friend then said, "I don't know who he is." Nelson pulled a gun out of his pocket and pointed it at Collins. Collins put his hands in the air and said, "I am nobody, I am nobody." Nelson then shot Collins in the face, and he fell to the ground. Collins was on all fours, trying to crawl away. Nelson walked towards Collins and shot him again in the back of the head. Lester witnessed the entire incident between Nelson and Collins. After the shooting, Nelson got back into the vehicle with Lester and drove away. Paramedics rushed Collins to Mercy Medical Center, where he was pronounced dead.

Lester saw Nelson again later the next day. Nelson told her he did not want to kill Collins, but he thought Collins was a police officer trying to apprehend him for drugs and he had to kill Collins because Collins had seen his face. Nelson also threatened to kill Lester if she told anyone about the shooting.

At approximately 2:30 p.m. the next day, a seven-year-old boy found a gun under a rock in his backyard. The boy's mother called the police and turned the gun over to them. A firearms specialist from the Iowa Division of Criminal Investigation later confirmed the two cartridge cases found at the scene of the Collins' shooting were fired from the recovered gun. Nelson's girlfriend used to live at the duplex where the boy discovered the gun. Moreover, Nelson began calling the boy's mother numerous times the day after the shooting, urgently requesting to speak with her in person and asking if she had seen him in her backyard earlier that morning. After reporting this to the police, the mother agreed to meet Nelson at her home.

791 N.W.2d 418

When Nelson arrived, the police immediately arrested him. The State charged Nelson with the crime of murder in the first degree, in violation of Iowa Code sections 707.1 and 707.2 (2005).

Nelson filed a pro se motion in limine seeking to prohibit the testimony of narcotics officer Chad Nicolino. Nicolino's expected testimony concerned his general knowledge of crack and drug trafficking, which Nelson argued would be highly prejudicial. Nelson's counsel supplemented the pro se motion by filing an additional motion in limine. The motion sought to preclude the State from mentioning in voir dire and opening statement or offering any evidence at trial regarding Nelson's prior criminal record as well as to prohibit the testimony of Nicolino.

In considering the motion in limine, the court stated it was more inclined to allow Nicolino to testify about specific drug trafficking in the area where the crime occurred but not about the general nature of drug trafficking due to the prejudice it would engender. However, the court decided to reserve its ruling on the motion until it heard more about the evidence in the case.

The State never called Nicolino as a witness. Instead, the State called Sergeant Chris Hardy to testify against Nelson. Before he became a detective, Hardy worked as a plainclothes undercover narcotics officer. After Hardy described his involvement in the present case, the State asked to take up a legal issue with the court outside the presence of the jury. Subsequently, the State notified the court that the police found plastic bags and marijuana in Nelson's vehicle as well as an empty cardboard box for a digital scale in Nelson's home. The State informed the court that it planned to ask Hardy whether these items were consistent with drug dealing. Nelson's counsel argued this evidence was irrelevant and an attempt by the State to improperly show Nelson's bad character. In response, the State argued this evidence corroborated Lester's testimony, explained the context in which the crime took place, and explained why the crime occurred. The court requested the State to make an offer of proof.

After the offer of proof, Nelson's counsel again argued this evidence was not relevant. The court refused to allow Hardy to testify about the marijuana. As for the plastic bags and the empty cardboard digital scale box, the court ruled, "To the extent that the paraphernalia found in the van [and home] could be used in connection with crack sales, I will allow that testimony." Hardy then testified that, based on his experience as an undercover narcotics officer, he was knowledgeable about the items consistently found with crack dealers. Hardy testified plastic bags are consistent with crack sales. He stated that after the crack is weighed, it is placed inside a plastic bag, and a knot is tied so the crack can be kept in a person's pocket or mouth without dissolving. Hardy also testified crack dealers commonly use a gram or digital scale to weigh the drugs before they sell them.

The State also called identification technician Nancy Lamasters, who searched Nelson's vehicle pursuant to a search warrant. Through Lamasters, the State introduced pictures of the plastic bags and the plastic bags themselves into evidence. After each offer to introduce the pictures and plastic bags into evidence, Nelson's counsel renewed his previous relevance objection. In addition, the State called officer Jason Halifax, who assisted in the execution of a search warrant at Nelson's residence. Through Halifax, the State introduced pictures of the empty cardboard digital scale box and the box itself into evidence. After each offer to introduce the pictures and

791 N.W.2d 419

the box into evidence, Nelson's counsel again renewed his previous relevance objection.

The jury returned a verdict finding Nelson guilty of first-degree murder. Nelson filed a notice of appeal, and we transferred the case to the court of appeals. Considering Iowa Rule of Evidence 5.404( b ), the court of appeals concluded the evidence linking Nelson to drug dealing was marginally relevant to complete the story of the crime but not relevant to Nelson's motive or intent because these elements could be inferred from Nelson's use of a deadly weapon to commit the crime. Although determining the evidence was marginally relevant to complete the story of the crime, the court of appeals concluded this evidence primarily served to paint Nelson as a bad person. Therefore, the court of appeals concluded the evidence's probative value was far outweighed by its prejudicial effect. Consequently, the court of appeals held the admission of the drug-dealing evidence was not harmless...