People v. Pollard
2013 COA 31
| Colo. Ct. App. | 2013Background
- Police found a plastic bag with crack cocaine (2.66 grams) on the center console of defendant Pollard's car in a vacant parking lot at 3 am.
- Defendant claimed the bag was probably bubble gum; friend testified the cocaine belonged to her and that defendant did not know she had it.
- Subsequently, a drug paraphernalia item was found in the friend's purse, not in the car itself.
- A later, separate transaction fourteen months after the charges showed Pollard sold crack cocaine to a woman, with crack cocaine recovered from the car center console.
- Pollard was convicted by jury of possession of more than one gram of cocaine and adjudicated an habitual offender, resulting in a 24-year sentence.
- The trial court admitted evidence of the subsequent drug transaction and prosecuted allegations, and also admitted evidence of Pollard's refusal to consent to a search of the car, which the court permitted in opening and closing arguments.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admission of subsequent bad act evidence | Prosecution linked the later sale to prove knowledge and motive. | Evidence was unfairly prejudicial and not admissible for the charged conduct. | Admission was within court's discretion; not reversible error. |
| Comment on defendant's refusal to consent to search | Refusal was part of chain of events; admissible to show context. | Penalty for exercising Fourth Amendment rights; violates due process. | Plain error; improper to admit and argue refusal to consent; reversible error requiring retrial. |
| Plain error standard application | Error affected trial fairness; warrants reversal. | No objection at trial; must show obvious and substantial error. | Error met plain error standard; reversal required for retrial. |
| Effect of refusal evidence on knowledge issue | Knowledge inferred from defendant's actions and refusals. | Refusal should not be used to infer knowledge. | Evidence of refusal improperly used to imply knowledge; reversal warranted. |
Key Cases Cited
- People v. Rath, 44 P.3d 1033 (Colo. 2002) (admissibility of other bad acts under CRE 404(b))
- People v. Garcia, 169 P.3d 223 (Colo. App. 2007) (trial court discretion in evidentiary rulings)
- United States v. Davis, 686 F.3d 1281 (10th Cir. 2011) (uncharged acts to show motive/knowledge when similar and close in time)
- United States v. Zamora, 222 F.3d 756 (10th Cir. 2000) (uncharged acts admissible to show knowledge and lack of accident)
- United States v. Olivo, 80 F.3d 1466 (10th Cir. 1996) (admission of subsequent, similar narcotics activity to show intent/knowledge)
- Prescott, 581 F.2d 1343 (9th Cir. 1978) (refusal to consent to search cannot be used to prove guilt)
- People v. Perry, 68 P.3d 472 (Colo. App. 2002) (due process limits on commenting on refusal to consent)