State v. Nevarez

• Decision Date: 02 November 2005
• Docket Number: No. 30486.,30486.
• Citation: 130 P.3d 1154,142 Idaho 616
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Amalia NEVAREZ, Defendant-Appellant.
• Court: Idaho Court of Appeals

130 P.3d 1154

142 Idaho 616

STATE of Idaho, Plaintiff-Respondent, v. Amalia NEVAREZ, Defendant-Appellant.

No. 30486.

Court of Appeals of Idaho.

November 2, 2005.

Review Denied March 22, 2006.

Nevin, Benjamin McKay, LLP, Boise, for appellant. Dennis A. Benjamin argued.

Hon. Lawrence G. Wasden, Attorney General; Lori A. Fleming, Deputy Attorney General, Boise, for respondent. Lori A. Fleming argued.

GUTIERREZ, Judge.

Amalia Nevarez appeals from the judgment of conviction entered upon the jury's verdict finding her guilty of trafficking in, and conspiring to traffic in, cocaine. Nevarez asserts that the district court abused its discretion in denying her motion for a new trial and in failing to properly instruct the jury regarding co-conspirator liability. We affirm in part and reverse in part.

I. FACTUAL AND PROCEDURAL SUMMARY

In 2002, Nevarez was charged by a seven-count information. Count I alleged that Nevarez conspired with her husband, Eusebio Nevarez, and her son, Michael Nevarez, to traffic in cocaine. Counts II and III charged that Nevarez trafficked in cocaine by actually or constructively possessing and aiding in the delivery of at least twenty-eight grams of cocaine. Nevarez was found guilty on the first three counts and acquitted of the remaining counts involving trafficking in methamphetamine.

Both Eusebio and Michael testified at trial. Michael had previously pled guilty to two counts of conspiracy to deliver cocaine from charges arising out of this same investigation. Michael testified that he lived in his parents' home and that he was involved in drug sales with his father. Michael also testified that his mother did not use drugs, did not permit drugs in the home, and was opposed to illegal drugs.

Eusebio also had pled guilty to two counts of conspiring to deliver methamphetamine, but subsequently filed a motion to withdraw his guilty plea, which the district court denied. Eusebio appealed and his appeal was pending at the time of Nevarez's trial.¹

During Eusebio's testimony at Nevarez's trial, the district court advised Eusebio that his testimony might incriminate him in the future and advised him of his right against self-incrimination. The district court specifically addressed Eusebio's appeal and advised Eusebio that if his appeal was successful, his testimony at Nevarez's trial could be used against him at his retrial. Eusebio was informed that he had the right to refuse to answer any question that would implicate him in a crime. Eusebio stated that he understood these rights and proceeded to testify. The questioning turned to how Eusebio became involved in drug trafficking. Eusebio answered the questions as to his own involvement but did not mention Nevarez except to note that she was not present the first time he was approached regarding the storage of drugs. Eusebio did not state whether Nevarez was involved in the transactions. At this point, the district court advised Eusebio that he had the right to be represented by an attorney, noting that "if you continue to answer questions concerning any knowledge you may have with drugs and your involvement with drugs, those statements would likely convict you of the offense of which you've been charged." The district court then called a recess to allow Eusebio to contact his lawyer.

After the recess, Eusebio informed the district court that his attorney advised him to not answer any further questions. Eusebio then asserted his Fifth Amendment privilege against self-incrimination and after brief questioning by defense counsel, the district court excused Eusebio from testifying further. The state requested that the district court strike the testimony given by Eusebio prior to his assertion of his Fifth Amendment right on the basis that the state would not have an opportunity to cross-examine Eusebio on this testimony. The district court granted the state's motion to strike Eusebio's testimony.

The jury returned a verdict finding Nevarez guilty of counts I, II and III. Nevarez subsequently filed a motion for a new trial stating several grounds, including that the district court talked Eusebio out of testifying after Eusebio had informed the court that he understood his Fifth Amendment rights. The district court denied Nevarez's motion for a new trial, entered judgment against Nevarez, and imposed concurrent sentences of fifteen years with three years determinate on each count. Nevarez appeals, contending that the district court abused its discretion by denying her motion for a new trial and that the district court erred in instructing the jury regarding co-conspirator liability.

II. ANALYSIS

A. Co-Conspirator Liability Jury Instructions

At trial, the state submitted proposed jury instructions based upon a theory of co-conspirator liability, to which Nevarez objected. On appeal, Nevarez asserts that the district court erroneously instructed the jury as to the bases on which it could find her guilty of trafficking in cocaine, as charged in counts II and III of the information. Specifically, Nevarez contends that Jury Instructions 16, 20 and 21 permitted the jury to find Nevarez guilty on counts II and III without finding that she either committed the criminal act or aided or abetted in its commission. Nevarez argues that Idaho does not recognize such a broad theory of co-conspirator liability.

The state responds that Idaho recognizes liability for criminal acts committed by a co-conspirator when the acts are themselves the object of the conspiracy. The state also asserts that even if Nevarez's contention that only principals are subject to criminal liability, Jury Instruction 19 instructed the jury that to find Nevarez guilty, her participation as a principal in the crime must have been proven beyond a reasonable doubt. Therefore, the state argues that the jury instructions as a whole did not lead the jury to find Nevarez guilty as a principal in the crime of trafficking in cocaine without finding that she participated in the crime in some way.

Whether the jury has been properly instructed is a question of law over which we exercise free review. State v. Gleason, 123 Idaho 62, 65, 844 P.2d 691, 694 (1992). When reviewing jury instructions, we ask whether the instructions as a whole, and not individually, fairly and accurately reflect applicable law. State v. Bowman, 124 Idaho 936, 942, 866 P.2d 193, 199 (Ct.App.1993). If contradictory jury instructions are given on a material issue, the error is prejudicial, for an error in one instruction cannot be cured by reference to a correct statement of the law in another. State v. Paciorek, 137 Idaho 629, 634, 51 P.3d 443, 448 (Ct.App.2002).

The question presented here is whether Idaho law allows conviction for a completed crime based on the co-conspirator theory of liability adopted by the United States Supreme Court in Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946). Pinkerton involved two brothers who were convicted of conspiracy to unlawfully remove, deposit and conceal certain commodities subject to taxation with the intent to defraud the United States of such tax. In addition to the conspiracy charge, the indictment also contained ten counts for the substantive crimes. Walter G. Pinkerton was convicted of nine substantive counts and W. Daniel Pinkerton was convicted of six substantive counts. Each of the substantive offenses was found to have been committed pursuant to the conspiracy. There was, however, no evidence to show that Daniel participated directly in the commission of the substantive offenses of which he was convicted. The United States Supreme Court held that so long as the partnership in crime continues, the partners act for each other in carrying it forward and the overt act of one partner in furtherance of the conspiracy may be the act of all without any new agreement specifically directed to that act. Pinkerton, 328 U.S. 646-47, 66 S.Ct. 1183-84, 90 L.Ed. 1496. The Supreme Court explained its reasoning as follows:

. . . .

The criminal intent to do the act is established by the formation of the conspiracy. Each conspirator instigated the commission of the crime. The unlawful agreement contemplated precisely what was done. It was formed for the purpose. The act done was in execution of the enterprise. The rule which holds responsible one who counsels, procures, or commands another to commit a crime is founded on the same principle. That principle is recognized in the law of conspiracy when the overt act of one partner in crime is attributable to all. An overt act is an essential ingredient of the crime of conspiracy under [the United States Criminal Code]. If that can be supplied by the act of one conspirator, we fail to see why the same or other acts in furtherance of the conspiracy are likewise not attributable to the others for the purpose of holding them responsible for the substantive offenses.

A different case would arise if the substantive offense committed by one of the conspirators was not in fact done in furtherance of the conspiracy, did not fall within the scope of the unlawful project, or was merely a part of the ramifications of the plan which could not be reasonably foreseen as a necessary or natural consequence of the unlawful agreement.

Id. at 647-48, 66 S.Ct. at 1184, 90 L.Ed. at 1496-97.

Nevarez notes that the Pinkerton case has not received widespread acceptance in the United States and many states have rejected Pinkerton liability as state policy. For example, the Washington State Supreme Court has determined that the Pinkerton theory of liability does not comport with the Washington State law on complicity because the Washington statute has been interpreted to require a showing that the defendant have knowledge that co-conspirators intended to commit the specific crime charged, as opposed to any foreseeable crime committed as a result of the conspiracy. State v. Stein, 144 Wash.2d 236, 241-42, 27 P.3d 184,...