State v. LeeState v. Lee
Lead Opinion
¶ 1. 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.
¶ 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. Y.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
¶ 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.
¶ 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,
¶ 12. We conclude that the balance to be struck falls within the wide discretion of the trial court. See Ward,
¶ 13. The dissent further asserts that the trial court’s error in concluding
¶ 14. Defendant fares no better in arguing that the court should have examined the admissibility of the gun evidence under Rule of Evidence 404(b). Rule 404(b) prohibits “[ejvidence of other crimes, wrongs, or acts” to prove an accused’s bad character, but permits such evidence as “proof of motive, opportunity, intent, preparation, plan, knowledge, identify, or absence of mistake or accident.” Defendant claims that the trial court failed to specifically articulate the reason it admitted the evidence under Rule 404(b). This argument is raised for the first time on appeal. Defendant never argued to the trial court that the gun evidence was inadmissible bad act evidence intended to demonstrate defendant’s character. Thus, the argument is not preserved for our review. V.R.E. 103(a)(1); State v. Lettieri,
¶ 15. Even if defendant had preserved the argument, the result would be no different because he has not explained how the mere possession of a firearm amounts to a bad act. The trial court’s ruling recognizes that gun ownership in Vermont is not unusual. The fact that defendant was convicted of possessing the guns unlawfully does not alter the analysis because the jury was unaware defendant was prohibited from possessing a firearm and of his resulting conviction. Absent evidence to demonstrate that defendant’s gun possession was somehow wrongful, the court was not required to analyze admission of the evidence under a Rule 404(b) standard.
¶ 16. Defendant also argues that the admission of the gun evidence was reversible error because it required him to explain why he possessed them by presenting testimony about the home invasion. Defendant characterizes his circumstances as a Hobson’s choice, because although he knew the home invasion evidence was prejudicial, he was forced to introduce it due to the trial court’s ruling on the gun evidence.
¶ 17. Defendant’s argument is unpersuasive. The trial court’s obligation is to rule on admissibility questions prior to trial when the evidence may affect defense strategy. See State v. Ryan,
¶ 18. Defendant’s last challenge is to the court’s jury instruction, explaining that evidence of defendant’s “alleged prior bad acts” had been admitted, but the evidence could be considered for a limited purpose only. The court explained that such evidence cannot be used to prove defendant has a bad character, and that because of this character, he committed the offenses charged. Defendant claims the instruction labeled the gun evidence as “bad,” thereby causing the prejudice the court said was absent from the mere ownership of guns in Vermont. He also contends that the court did not put the instruction in context by failing to identify the evidence to which it related and to explain its proper purpose.
¶ 19. We review this last claim for plain error because defendant did not object to any portion of the jury instructions, including the instruction he now asserts was erroneous. V.R.Cr.P. 30; State v. Little,
Affirmed.
Notes
We agree with the State that the gun found in the closet was admissible to show defendant possessed the drugs also found in the closet. The evidence discloses that defendant admitted to the police officer that he owned the gun.
We cannot agree, however, that evidence of the gun found in the car was relevant to show defendant’s motive for fleeing from the police. The jury members were not aware that defendant’s possession of the gun was a federal crime, and, as a result, they could not understand that defendant would flee from the police to avoid being found with the gun. Moreover, defendant was charged with attempting to elude a police officer, 23 V.S.A. § 1133, and this is a strict liability offense that does not contain an element of intent. State v. Roy,
The dissent characterizes this decision as a per se ruling that guns are always relevant in a drug prosecution. Our holding is not so broad. We simply affirm the trial court’s assessment that in this case, given our broad relevance standard, the evidence of the guns made it more probable than not that defendant sold drugs. See V.R.E. 401.
The dissent also concludes that the guns had ‘‘infinitesimal probative value,” post, ¶ 24, because of the other evidence linking defendant to the drug sales. This comparison is not the proper method for determining relevancy because “[t]he test of relevancy is... not whether the evidence makes the proposition for which it is offered more probable than competing propositions, but rather whether the evidence has any tendency to establish (or refute) the proposition.” Reporter’s Notes, V.R.E. 401. At the time the court ruled on the motion in limine, defendant had not admitted to the drug sales, and thus the State was required to prove the offenses with which he was charged including that defendant was engaged in “knowingly and unlawfully selling cocaine,” 18 V.S.A. § 4231(b)(1). As we hold above, the gun evidence was relevant to the State’s proof.
The dissent contends that defendant’s acquisition of the guns was irrelevant as a matter of law because it was so far removed in time from the drug transactions. Although situations exist where acts are too remote to be relevant, such is not the case here where defendant obtained the guns within two weeks of the drug sales. See State v. Winter,
Dissenting Opinion
¶ 20. dissenting. I cannot agree with the majority’s holding that a defendant’s gun ownership is per se relevant to show that a defendant is a “drug dealer.” Although there may be specific instances in which gun evidence would be relevant to the State’s case against a defendant accused of selling drugs, this is not such a case. The State charged defendant with two counts of selling cocaine. A week after the second and final transaction upon which the charges were based, defendant acquired two firearms. Defendant neither used the guns as part of the drug transactions, nor even possessed the guns at the time the sales occurred. Nonetheless, the majority adopts the trial court’s conclusion that the gun evidence is probative of whether defendant was involved in the sales. I recognize that we have a broad standard for relevance, and that the trial court’s rulings on this issue will only be reversed on a showing that the court abused its discretion. Even under that deferential standard of review, I fail to see how the acquisition of firearms that occurs after and independently from a nonviolent drug sale tends to show that defendant sold drugs on the earlier occasions. Even if I were to accept this attenuated inference, I would still conclude that the after-acquired firearms should have been excluded because their slight probative value in this case is substantially outweighed by the prejudice and confusion of the issues that their introduction caused. I would hold that the guns were not relevant in the context of
¶21. The majority correctly notes that our rule-based relevance standard is broad. The majority is incorrect, however, in asserting that the “time gap between the drug sales and the possession of the guns” goes only to the weight the gun evidence should be given by the trier of fact. Ante, ¶ 10. Temporal remoteness may also be a bar to admissibility. Cf. State v. Winter,
' ¶ 22. In ruling on the motion to exclude, the trial court stated that it did not “feel that it’s that speculative; that an argument can be made that, you know, that firearms may be used in drug transactions,” and thus the guns had “some probative value as to the issue of whether [defendant] was involved in these transactions.” I agree that guns are sometimes used in drug transactions, either for the protection of the dealer or as tender in the exchange for drugs. It defies common sense, however, to suggest that guns that were not even in defendant’s possession at the time of the drug transactions somehow make it more likely that defendant participated in the earlier transactions.
¶ 23. Under Rule 401, evidence that does not pertain directly to an element of the crimes charged, such as the guns in this case, may still be relevant to the resolution of other factual disputes of “consequence.” But in this case, there is no logical connection between the guns and the evidentiary narrative relating to the drug charges. There is rio evidence that guns were used in the drug deals that defendant is charged with executing, or in any other drug deals for that matter. Nothing in the evidence suggests that defendant alluded to the guns in any way and at ány time prior to or during the drug deals. Similarly, the State has not suggested that defendant purchased the guns with proceeds from the drug sales, and thus that the guns represent fruits of defendant’s criminal enterprise. Instead, the State’s case is based on testimony from the police informant who purchased the drugs directly from defendant while wearing a recording device, and the police officers who facilitated and supervised the informant. The State also introduced the taped conversation that transpired between defendant arid the informant at the time of the second purchase, and the cocaine that the informant obtained after her encounters with defendant.
¶ 24. When compared to the substantial direct evidence that defendant was in fact involved in the alleged transactions, and in light of the majority’s recognition of and reliance on the fact that gun ownership is common in Vermont, the gun evidence here is circumstantial evidence with infinitesimal probative value. In view of its after-the-fact remoteness and slight probative value, the gun evidence should have been excluded as a matter of law.
• ¶ 25. A close inspection of the cases cited by the majority in support of its
¶ 26. For example, in United States v. Martinez,
¶ 27. The defendant in United States v. Wiener,
¶ 28. Similarly, in United States v. Price,
¶ 29. By lifting broadly worded pronouncements out of these federal cases, without appreciation for the significant factual distinctions involved here, I fear that the majority has adopted a per se rule that guns are always relevant and sufficiently probative in drug sale cases. This Court is ordinarily wary of adopting per se rules in criminal cases. See, e.g., State v. Leggett,
¶ 30. Relevance rulings are case-specific by their very nature, and should remain so. I agree that there may be future drug cases where evidence of a defendant’s gun possession may be relevant and highly probative of the issues involved, but this is not one. By adopting the “tools of the trade” theory into our law in a case where defendant did not possess the tools in question until a week after the crime was committed, the majority creates a broad, generally-applicable presumption in favor of relevance without regard to the remoteness issues that may arise in future cases.
¶ 31. Curiously, the State has made no attempt to support the “tools of the trade” rationale on appeal, omitting any mention of this theory from its brief. Instead, it suggests alternative grounds for admission of the gun evidence, urging this Court to affirm “even where the trial court... reaches the right result for the wrong reason.” See State v. Willis,
¶ 32. On appeal, the State argues two grounds for admission of the guns: (1) that one of the guns was relevant to the attempting-to-elude charge because it was in defendant’s car at the time the police arrested him, thus explaining his motivation in fleeing; and (2) that the gun found in his closet was relevant to show that defendant, who admitted to owning the gun, also owned the marijuana found nearby. The majority correctly points out that the gun evidence was not relevant to the charge for attempting to elude a police officer because it is a strict liability offense for which no showing of intent is required, and furthermore, that the jury lacked background information necessary to understand why the guns would motivate defendant to flee. Ante, ¶ 10 n.l. Accordingly, the trial court erred by assigning the gun evidence probative weight based on its relevance to the attempting to elude charge. As to the State’s new argument, I agree with the majority and the State that one of the two guns was relevant to, and probative of, the possession of marijuana charge. But I cannot conclude that the trial court’s Rule 403 analysis would still have resulted in admission of the gun evidence if the only weight properly on the scale had been its relevance to show possession of the marijuana.
¶ 34. Despite these facts, the gun evidence was substantially more prejudicial to defendant’s case than it was probative of the issues germane to the possession-of-marijuana charge. The trial court and the majority frame the issue of gun ownership as a neutral factor that cannot be considered, in and of itself, as prejudicial in a state like Vermont, where many people own guns. But this approach flatly ignores the context of this case. The references to the guns in the State’s case-in-chief imply that, once armed, defendant presented a danger to the community. The State first mentioned the guns in its opening statement, saying that six days after the second controlled drug buy, “[t]he Southern Vermont Drug Task force runs into a problem. They find out that the Defendant has acquired two firearms, and because of this, they decide to shut down this drug operation and arrest the defendant.” During direct examination of Detective Gazzaniga, the guns were again mentioned in the same context, explaining why the police moved to arrest defendant. The State covered the same ground with Detective Barsi, who also testified that the decision to arrest Lee was based, in part, on the fact that defendant had obtained two firearms. Detective Barsi also testified about one of the guns, describing it as a handgun, but noting that it “fires a much larger round than I would normally anticipate from a handgun.”
¶ 35. These repeated references to the guns unmistakably suggest that defendant is a dangerous person, who police arrested at a specific point in time out of fear that he might put the guns to illegal and violent use. The context here is not neutral gun ownership for skeet shooting or deer hunting. The jury would likely assign great credibility to this testimony coming from experienced police officers. While I do not question the validity of the officers’ assessment of the situation or the propriety of the actions they took in response, the admission of the evidence powerfully prejudiced the jury against defendant by raising the specter that he was preparing to commit a violent act.
¶ 36. Moreover, although one of the guns may be relevant to showing ownership of the marijuana, the other neutral evidence cited above accomplishes the same function as the gun evidence admitted over defense objection. Accordingly, under Rule 403, the cumulative nature of this highly prejudicial evidence must also be weighed against its probativeness. The combination of prejudice and cumulativeness
¶ 37. When viewed in light of defendant’s sole hope of acquittal at trial.— the entrapment affirmative defense — the admission of the gun evidence and its presentation by the State at trial cannot be considered harmless error. The purpose of the entrapment affirmative defense, as recognized in Vermont, is to “deter improper governmental activity in the enforcement of the criminal laws.” State v. Wilkins,
¶ 38. After using the gun evidence to suggest that defendant’s acquisition of firearms was a prelude to violence, thus necessitating urgent police intervention, the State effectively distracted the jury from considering the proper boundaries for law enforcement in drug-related investigations. Defendant conceded that he was a drug user, and claimed that he only made the sales at issue to placate the police informant, who also happened to be the mother of defendant’s girlfriend and the person that was providing defendant with a place to live. Admission of the gun evidence compromised the jury’s ability to consider whether repeated requests for drugs made by this informant, who had substantial influence over vital aspects of defendant’s life, amounted to improper police inducement or coercion, i.e., entrapment.
¶ 39. Defendant’s gun possession was remote in both time and place from the drug counts at issue here, and, therefore, not relevant to them. Under these circumstances, and in view of the prejudicial testimony that resulted from the admission of the gun evidence, I would reverse and remand for a new trial, holding that the trial court erred in admitting the gun evidence in this case, and that such error was not harmless. I would reverse defendant’s drug sale convictions, and remand for a new trial on those two counts. I am authorized to state that Justice Skoglund joins in this dissent.
The majority complains that this dissent engages in its own Rule 403 balancing, implying that this is a usurpation of the trial court’s function. To some extent balancing in the appellate court is unavoidable when the trial court factors errors of law into its Rule 403 balancing. The majority and the dissent agree that the trial court erred by finding evidence of the gun in the car relevant to and probative of the attempting-to-elude charge. The transcript shows that the trial court factored this error into its Rule 403 balancing. Thus, in reviewing the trial court’s decision, both the majority and the dissent have to reassess the balancing, taking into account the error. The majority and dissent disagree on the question of whether the trial court incorporated a second error of law into its balancing by concluding that the gun evidence was both relevant to and probative of the question of whether defendant “was involved in these [drug] transactions.” Accordingly, the dissent and majority reach different conclusions after conducting our own respective reassessments; this is a difference in result, not process.