State of Vermont v. Lamont Lee
No. 02-512
Supreme Court of Vermont
August 19, 2005
2005 VT 99 | 886 A.2d 378
Present: Dooley, Johnson, Skoglund and Reiber, JJ., and Allen, C.J. (Ret.), Specially Assigned
Opinion Filed August 19, 2005
¶ 20. Here, as with the other challenged testimony, the trial court declined to declare a mistrial, but promptly instructed the jury to disregard Slater‘s statement. Its decision was a proper exercise of its discretion. In State v. Potter, 148 Vt. 53, 57-58, 529 A.2d 163, 166 (1987), we held that the trial court did not abuse its discretion in denying the defendant‘s motion for a mistrial after a witness indirectly referred to the fact that the defendant may have been incarcerated at some point immediately prior to the incident in question. 148 Vt. at 57-58, 529 A.2d at 166. We concluded that the district court‘s prompt curative instruction eliminated the need for a mistrial. Id. at 58, 529 A.2d at 166.
¶ 21. Here, the trial court also responded with an immediate curative instruction directing the jury to disregard Slater‘s statement about a plea agreement as nonresponsive. Additionally, the statement itself was unsolicited and vague — Slater did not refer to specific terms of any particular plea arrangement, or even that defendant had pled guilty. Furthermore, Slater was obviously mistaken in his belief that the matter was settled by a plea agreement, given that he was testifying in defendant‘s criminal trial at the time. Finally, the jury acquitted defendant of one of the charges, indicating that it performed its duty, uninfluenced by Slater‘s passing reference. Again, defendant has failed to demonstrate prejudice, and the record does not reflect that the trial court abused its discretion or that the jury disregarded the court‘s limiting instructions.
Affirmed.
Matthew F. Valerio, Defender General, and Anna Saxman, Deputy Defender General, Montpelier, for Defendant-Appellant.
¶ 1. Dooley, J. 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
¶ 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.
¶ 4. On August 31, 2000, the State filed informations in district court charging defendant with attempting to elude a police officer, possession of marijuana, and two counts of felony sale of cocaine. In May 2002, defendant filed notice with the court that he intended to raise entrapment as an affirmative defense. Defendant also filed motions in limine to exclude certain evidence, two of which are relevant to this appeal. The first sought to exclude photographic evidence of the gun found in defendant‘s car and the gun found in the bedroom where defendant was staying. Defendant argued that the gun evidence would unfairly prejudice him because it lacked any probative value. Defendant‘s motion noted that because he was a previously-convicted felon, possession of the guns was a federal offense, and he had already been convicted and sentenced for this offense in federal court.
¶ 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
¶ 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.
¶ 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
¶ 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
establish (or refute) the proposition.” Reporter‘s Notes,
¶ 11. In addition to challenging relevancy, defendant makes the stronger argument that the gun evidence should have been excluded under
¶ 13. The dissent further asserts that the trial court‘s error in concluding that the prejudicial effect of the gun evidence did not substantially outweigh its probative value under
¶ 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).
¶ 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
¶ 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, 135 Vt. 491, 497, 380 A.2d 525, 528-29 (1977) (directing trial court to rule on motion at inception of trial if ruling will affect defense strategy). After an admissibility ruling, it is the defendant‘s decision how to proceed with trial strategy. See State v. Byrne, 149 Vt. 257, 263, 542 A.2d 667, 671 (1988) (holding that once defendant decided to open the door to a line of questioning, defendant could not claim error on appeal). Defendant adopted the trial strategy of showing the home invasion although, in retrospect, it may have reinforced the impression that defendant wanted to avoid — that he obtained the guns to combat the kind of violence associated with drug dealing. As a result, the testimony focused in detail on the guns, where the references to them would otherwise have been brief. Defendant, not the trial court, bears the responsibility for these choices.
¶ 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
¶ 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.
Affirmed.
¶ 20. Johnson, J., 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
¶ 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, 162 Vt. 388, 396-97, 648 A.2d 624, 629 (1994) (holding that remoteness of evidence of accused‘s prior crimes affects admissibility as well as weight). As the Reporter‘s Notes to
¶ 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
¶ 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 “tools of the trade” per se relevance theory reveals several important distinctions between those cases and the instant case. Most of the cases the majority cites in support of its rationale involve drug conspiracies. Unlike the present case, where the prosecution has ample direct evidence of defendant‘s involvement in the drug deals, prosecutors in conspiracy cases should receive greater latitude with circumstantial evidence, which is often the only type of evidence available to prove the conspiracy. See State v. Berger, 733 A.2d 156, 164 (Conn. 1999) (“Because of the secret nature of conspiracies, a conviction usually is based on circumstantial evidence.“); United States v. Infante, 404 F.3d 376, 385 (5th Cir. 2005) (“[B]ecause secrecy is the norm in drug conspiracies, each element of the crime may be established by circumstantial evidence.“).
¶ 26. For example, in United States v. Martinez, 938 F.2d 1078 (10th Cir. 1991), defendant was charged with cocaine distribution and conspiracy to distribute cocaine. The court admitted guns that were hidden in a house that defendant visited while under surveillance, along with a half pound of cocaine found there, to prove a “key point in support of [the prosecution‘s] evidentiary hypothesis” that the house was a “‘stash’ house” where defendant procured his drugs on the day
¶ 27. The defendant in United States v. Wiener, 534 F.2d 15 (2d Cir. 1976), was charged with one count of conspiracy and two counts of possession with intent to distribute hashish. The court affirmed admission of a gun found in his apartment on the day of his arrest. Id. at 18. The defendant‘s apartment was the alleged “focal point” of his drug ring, and the gun was found in a bag with marijuana and hashish smoking paraphernalia. Id.
¶ 28. Similarly, in United States v. Price, 13 F.3d 711 (3d Cir. 1994), where defendant was one of several accused drug conspirators, the court upheld the admission of a prior gun conviction because it was “highly probative of the large scale of a narcotics distribution conspiracy and the type of protection the conspirators felt they needed to protect their operation.” Id. at 719 (quotations omitted). In contrast, defendant in the instant case is charged only with two drug sales amounting to a total of less than $200.
¶ 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, 167 Vt. 438, 444, 709 A.2d 491, 495 (1997) (declining to adopt per se rule requiring reversal whenever hearsay testimony is admitted without a finding of good cause to dispense with a probationer‘s confrontation right); State v. Kirchoff, 156 Vt. 1, 8, 587 A.2d 988, 993 (1991) (rejecting per se approach to the privacy inquiry in open-fields search and seizure cases under Article 11). For example, in State v. Roy, 151 Vt. 17, 23, 557 A.2d 884, 888 (1989), we reviewed the position taken by several of our peer jurisdictions that the omission of an essential element of the offense from the charge to the jury is automatically plain error warranting reversal. In rejecting this approach, we stated our belief that “it would be bad policy to create a category of errors which are plain per se.” Id. It is equally bad policy to designate a category of evidence — guns — as relevant per se in cases where a defendant is charged with selling drugs — especially in Vermont where, as the majority and trial court noted, gun ownership is a trait common to many people who have nothing to do with the drug trade.
¶ 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, 145 Vt. 459, 477, 494 A.2d 108, 118 (1985) (“A trial court may achieve the correct results for the wrong reasons.“). Because I agree with the State‘s apparent concession that the trial court erred in admitting the guns as “tools of the trade,” I have also considered whether any other basis supports the trial court‘s evidentiary decision. After reviewing the trial record, I conclude that the trial court‘s alternative reasons for admitting the gun evidence were also based on legal errors, and that probative weight assignable to the additional ground raised by the State for the first time on appeal is overcome by the substantial potential for prejudice and confusion of the issues that resulted from introduction of the gun evidence. Accordingly, I cannot conclude that the court‘s decision was harmless.
¶ 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.1. 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
¶ 33. As the majority notes, defendant did not deny owning the gun found in the closet with the marijuana. Thus, the gun tends to show that defendant had access to and perhaps control over the closet where the marijuana was found, making it more likely that the marijuana belonged to defendant. The State could, however, have easily proved its case on this charge without the gun evidence. The detective who discovered both the gun and the marijuana while executing the search warrant for the home testified that the closet could be accessed only through defendant‘s bedroom; that the closet contained male clothing; and defendant was the only male living in the home.
¶ 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
¶ 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
¶ 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, 144 Vt. 22, 29, 473 A.2d 295, 298 (1983). Entrapment will be found where the inducement or persuasion employed by the police is so great that even a hypothetical reasonable person, i.e., one who is not otherwise ready to commit the criminal offense charged, would succumb to such persuasion and commit the crime. Id. at 30, 473 A.2d at 299. The focus of the legal and factual entrapment inquiry is, therefore, on the conduct of law enforcement in setting up the sting operation that produced direct evidence of defendant‘s participation in the two controlled drug buys. State v. George, 157 Vt. 580, 583-84, 602 A.2d 953, 955 (1991) (citing Sebesta v. State, 783 S.W.2d 811, 814 (Tex. Crim.
¶ 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.