Adams County District Court No. 12CR1362 Honorable Thomas R. Ensor, Judge
Cynthia H. Coffman, Attorney General, Rebecca A. Adams, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Douglas K. Wilson, Colorado State Public Defender, Inga K. Nelson, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
¶ 1 What is the proper scope of uncharged misconduct evidence that the prosecution uses to prove that a defendant had a modus operandi or that he or she engaged in a common plan? The answer to this question obviously depends on the facts of each case. But, as a general matter, we conclude that, with the exception of sexual assault cases and domestic violence cases that are governed by specific statutes, a court should only admit (1) modus operandi evidence to prove the identity of the person who committed a crime; and (2) common plan evidence when the uncharged misconduct and the present crime have a nexus that shows that the defendant had a continuing plan to engage in certain criminal activity.
¶ 2 In this case, a jury convicted defendant, Barnett Williams, of distributing cocaine, a schedule II controlled substance. He appeals the judgment of conviction. He contends on appeal that the trial court erred when it admitted evidence of a prior drug deal to show that he had a distinctive modus operandi or that the two drug deals were part of a common plan. We agree with his contention, so we reverse his conviction, and we remand his case to the trial court for a new trial.
¶ 3 In early May 2012, police officers sent a paid confidential informant into an apartment in Aurora to buy cocaine from defendant. The informant wore a wire, and the officers gave her at least one twenty dollar bill to make the purchase. (There is confusion in the record whether the officers gave the informant twenty dollars or forty dollars. But the officer who handled the informant said that his memory about this fact may have been unclear because he had investigated many drug dealers. They often sold cocaine for twenty dollars or forty dollars.) The police had previously recorded the bill's serial number.
¶ 4 A female officer strip-searched the informant immediately before she entered the apartment building. (The officer who conducted the strip search did not examine the informant's body cavities, but she checked "anything [the informant] might be able to conceal inside clothes.") The investigating officer watched the informant go inside, and he monitored and recorded the conversation between the informant and defendant.
¶ 5 According to the informant, she was alone in the apartment with defendant. She said that he took a folded piece of paper from a table, and he handed it to her. She gave him the twenty dollar bill in return.
¶ 6 She left the building, and she met with the investigating officer. She gave him the folded paper. Inside was a rock of cocaine. The female officer strip-searched her again. The officer did not find any other drugs, and she did not find the twenty dollar bill.
¶ 7 Neither defendant nor the informant made any obvious or clear references to a drug deal during their recorded conversation. There were instead some vague statements that could have been in a kind of code. For example, the informant said, "[L]et me get one of your smokes from you." Defendant replied, "[Y]up, here you go." Then the informant mentioned that she would return later, promising, "I'll be back through 'cause you're like closest to me and my old man see he don't but I do."
¶ 8 If the informant and defendant were speaking in code, the informant could have used the word "smokes" for a rock of cocaine - which is often smoked in a pipe - and she could have promised that she would return to buy more cocaine because, although her "old man" did not use it, she did. But the record does not make clear that they were using a code. The informant may have simply asked to bum a cigarette.
¶ 9 The officers obtained a search warrant, and they searched defendant's apartment six days later. They did not find any rocks of cocaine, the twenty dollar bill, a large amount of other cash, any paraphernalia for smoking cocaine rocks, or any plastic baggies that are commonly used to package cocaine rocks.
¶ 10 (They found a digital scale and a box cutter that both had a white powder on them. The powder turned out to be cocaine, but the jury did not hear about that fact. The trial court barred the prosecution from introducing this evidence because the prosecution had not timely disclosed the results of the chemical test of the powder.)
¶ 11 The prosecution charged defendant with distribution of cocaine. Defendant's theory of defense was that the drug deal never happened; the informant made it up so that the police officers would pay her for the information.
¶ 12 Before trial, the prosecution filed a CRE 404(b) motion that asked the trial court to allow it to present evidence of a drug deal in which defendant had been involved in February 2012, about three months before the events in this case. In the February drug deal, acting on information that defendant was selling cocaine, police officers decided to watch a different apartment in a different building than the one that defendant used in the May drug deal. They saw six people come and go within an hour. None of them stayed longer than about a minute.
¶ 13 So the officers sent a different confidential informant into the apartment who bought forty dollars' worth of cocaine rocks. That informant later told the officers that he had bought cocaine rocks from defendant and that he had seen a sack containing twenty or more additional cocaine rocks in the apartment. When the officers searched the apartment, they found drug paraphernalia, $600 in cash, and several items - a pan, a mason jar, and a digital scale - on which they found a white residue.
¶ 14 (A chemist tested the residue on the pan. But the jury did not hear what the result of that test was because the prosecution had not timely informed the defense about the test results. The residue on the other two items had not been tested at the time of the trial in this case, and the trial court struck any reference to the residue.)
¶ 15 The prosecutor asserted that the evidence of the February drug deal was relevant to establish "common plan, scheme, design, modus operandi, motive, and guilty knowledge, " and to rebut any assertion that defendant might make of mistake or accident. The prosecutor said that the evidence of the February drug deal showed that defendant's "modus operandi" was to sell small rocks of cocaine in forty dollar "increments."
¶ 16 The judge who conducted the pretrial hearing, who was not the same judge who presided over defendant's trial, granted the prosecution's CRE 404(b) motion. But the first judge limited the purposes for which the jury could consider the evidence of the February drug deal to proving modus operandi and common plan, scheme, and design. (We will refer to the two judges cumulatively as "the trial court" from here on out because the first judge granted the prosecution's motion in a pretrial hearing, and the second judge overruled defendant's renewed objection at trial to exclude the uncharged misconduct evidence.)
¶ 17 The jury heard testimony about the February drug deal and the May drug deal. It convicted defendant of distributing cocaine in the charged offense, which concerned the May drug deal.
II. Uncharged Misconduct Evidence: ...