County District Court No. 13CR443 Honorable Valerie J.
Cynthia H. Coffman, Attorney General, Brock J. Swanson,
Assistant Attorney General, Denver, Colorado, for
Douglas K. Wilson, Colorado State Public Defender, Anne
Stockham, Deputy State Public Defender, Denver, Colorado, for
1 Defendant, Kelly Gene Davis, appeals the judgment of
conviction entered on a jury verdict finding him guilty of
conspiracy to distribute a schedule II controlled substance
and court verdicts finding him guilty on several habitual
criminal charges. His primary contention on appeal is that
the People were required to prove, and the jury was required
to find, that he committed a particular overt act in
furtherance of the alleged conspiracy. We hold, however, that
where the People properly charge a single conspiracy, they
are required to prove only that the defendant committed an
overt act in furtherance of the conspiracy; that is, the jury
must agree unanimously that the defendant committed such an
overt act, but it need not agree unanimously that the
defendant committed a particular overt act. It follows that
the district court did not err in failing to require the
prosecution to elect a particular overt act on which it was
relying to prove the charge or in failing to give the jury a
special unanimity instruction. Because we also reject
defendant's other contentions of error, we affirm the
judgment of conviction.
2 In January 2013, the Grand Junction Police Department and a
Drug Enforcement Agency Taskforce began investigating the
activities of Leonel Gonzalez-Gonzalez. The investigation
entailed wiretapping several of Mr. Gonzalez-Gonzalez's
telephones from February 2013 through April 2013. Police
recorded several telephone calls between him and defendant
during that time.
3 As a result of the investigation, the People charged
defendant with one count of conspiracy to distribute a
schedule II controlled substance (methamphetamine) and
several habitual criminal counts.
4 At trial, Deziree Fisher, a named co-conspirator, testified
to participating in and witnessing drug transactions
involving defendant. She said that she provided defendant
with drugs, which he would then sell, using the money he made
to pay her back. Ms. Fisher also said that she had been
convicted of intent to distribute a controlled substance for
her role in drug sales involving defendant and other
co-conspirators, and that she was testifying in the hope of
receiving a sentence reduction.
5 Terry Lawrence testified that he was present in January or
February 2013 when Mr. Gonzalez-Gonzalez and his associate
delivered an ounce or more of methamphetamine to defendant
and collected money from him. At the time of the trial, Mr.
Lawrence had been charged with racketeering and conspiracy to
distribute drugs. He testified that he had not yet been
convicted or entered into a plea agreement, and that he was
testifying in the hope of receiving a favorable plea offer.
6 Detective Jason Sawyer testified that in phone calls
recorded in February through April 2013, Mr.
Gonzalez-Gonzalez agreed to supply defendant with
methamphetamine to sell. He also testified that a series of
recorded calls from April 1, 2013, showed Mr.
Gonzalez-Gonzalez and defendant planning to rent a car to use
to pick up drugs. Police officers watched the car rental
franchise where the two had arranged to meet and identified
one of the people who arrived at the meeting as defendant.
7 A jury convicted defendant of the conspiracy charge, and
the district court, after finding that defendant was a
habitual criminal, sentenced him to forty-eight years in the
custody of the Department of Corrections.
8 Defendant contends that the district court erred in (1) not
(a) requiring the prosecution to elect the overt act on which
it was relying to prove the conspiracy charge or (b) giving
the jury a special, modified unanimity instruction regarding
the particular overt act; (2) not providing a limiting
instruction to preclude the jury from considering
witnesses' guilty pleas or desires to plead guilty as
evidence of his guilt; and (3) imposing an aggravated
sentence based on its own findings of prior criminality. We
address and reject each contention in turn.
Preservation and Standard of Review
9 The parties agree that this issue was not preserved:
defense counsel never requested that the prosecution elect a
particular overt act, nor did counsel request a special
unanimity instruction. Because of this, the People argue that
defendant waived his contention. That is so, they say,
because defendant didn't make a multiplicity challenge
under Crim. P. 12(b). But the supreme court recently rejected
this argument in People v. Zadra, 2017 CO 18, ¶
17, and Reyna-Abarca v. People, 2017 CO 15,
10 Reviewing defendant's contention requires us to
determine whether the court erred and, if so, whether the
error requires reversal.
11 Determining whether to require the prosecution to elect a
particular act on which it is relying to prove a charge
involves an exercise of the district court's discretion,
see Thomas v. People, 803 P.2d 144, 154 (Colo.
1990), as does determining whether to give a particular jury
instruction, People v. Marks, 2015 COA 173, ¶
53. So ...