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People v. Davis

Court of Appeals of Colorado, Second Division

April 6, 2017

The People of the State of Colorado, Plaintiff-Appellee,
v.
Kelly Gene Davis, Defendant-Appellant.

         Mesa County District Court No. 13CR443 Honorable Valerie J. Robison, Judge

          Cynthia H. Coffman, Attorney General, Brock J. Swanson, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Douglas K. Wilson, Colorado State Public Defender, Anne Stockham, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

          OPINION

          J. JONES JUDGE

         ¶ 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.

         I. Background

         ¶ 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.

         II. Discussion

         ¶ 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.

         A. Unanimity

         1. 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).[1] But the supreme court recently rejected this argument in People v. Zadra, 2017 CO 18, ¶ 17, and Reyna-Abarca v. People, 2017 CO 15, ¶¶ 38-45.

         ¶ 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, ΒΆ 53. So ...


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