State v. Muhammad

State v. Muhammad (2005-475)

2007 VT 36

[Filed 08-May-2007]

                                 ENTRY ORDER

                                 2007 VT 36

                      SUPREME COURT DOCKET NO. 2005-475

                             FEBRUARY TERM, 2007


  State of Vermont                     }         APPEALED FROM:
                                       }
                                       }
       v.                              }         District Court of Vermont,
                                       }         Unit No. 2, Chittenden Circuit
  Joshua J. Muhammad                   }
                                       }         DOCKET NO. 1927-4-04 CnCr

                                                 Trial Judge: Michael S. 
                                                              Kupersmith

             In the above-entitled cause, the Clerk will enter:


       ¶  1.  Defendant appeals his conviction for sale of cocaine.  He
  asserts that the district court violated his constitutional rights and
  committed reversible error by denying his motion to dismiss based on the
  State's use of warrantless electronic monitoring, and by allowing a
  confidential source to refresh her recollection with the suppressed
  recording prior to testifying.  He further asserts that the court erred by
  permitting the State to introduce evidence of other bad acts.  We affirm.

       ¶  2.   The events underlying defendant's conviction took place on
  March 4, 2004.  A confidential source agreed to cooperate in a controlled
  drug buy with the Drug Enforcement Administration (DEA) in exchange for
  consideration on her own federal drug charge.  On the date at issue, she
  contacted Lauren Desautels, the woman defendant was living with, and set up
  a deal to purchase cocaine.  DEA officers then searched the source and her
  car, and equipped her with a wire and money to purchase the drugs. 
  Desautels failed to meet the source at the predetermined location, but the
  source later received a phone call from a man telling her to come to the
  house where defendant and Desautels lived together.  The officers followed
  the source to the residence and watched her enter through the front door. 
  About fifteen minutes later, the source emerged from the home.  She met the
  officers at a prearranged place, and handed over a bag containing cocaine. 
  She then informed the officers that defendant had given her the drugs.  
   
       ¶  3.  In April 2004, defendant was charged with one count of
  selling cocaine. (FN2)  18 V.S.A. § 4231(b)(2).  Prior to trial, defendant
  filed a motion to exclude and dismiss on the grounds that failure to obtain
  a warrant for the electronic monitoring in his home violated his rights
  under the Vermont Constitution.  In response, the State indicated that it
  would not use the illegal recording of the transaction at trial, or
  evidence derived from it, but would call the source to testify.  The court
  ordered that the recording be suppressed, but denied defendant's motion to
  dismiss.   

       ¶  4.  The day before trial, the court held a hearing to resolve
  evidentiary issues raised by the State.  Among these issues was whether the
  State could use the suppressed recording to refresh the source's
  recollection prior to trial, as the State intended to have her listen to
  the recording that afternoon.  The court ruled that the source could
  refresh her recollection with the suppressed recording.  The following
  morning, immediately preceding trial, defendant renewed his opposition to
  the State's use of the recording to refresh the source's recollection.  The
  court, however, determined that the issue was moot because the source had
  already listened to the recording.  At trial, Defendant was convicted of
  selling cocaine in violation of 18 V.S.A.§ 4231(b)(2). 

       ¶  5.  After trial, defendant sought a new trial on the ground that
  the court erroneously admitted evidence of other bad acts through a DEA
  officer's testimony.  See V.R.E. 404(b) (prohibiting evidence of other
  crimes, wrongs, or acts to prove propensity to act in conformity
  therewith).  The court denied the motion, finding that defendant had
  "opened the door to the introduction of the evidence" by cross-examining
  the officer on the theory that there was no evidence linking defendant to
  drug activity and that the officers acted out of racial bias because
  defendant was a black man living with a white woman.  This appeal followed.

       ¶  6.  Defendant now claims that the trial court committed
  reversible error in several respects.  He argues that the court erred by
  (1) denying his motion to dismiss based on the State's violation of his
  constitutional rights, (2) allowing the source to refresh her recollection
  using the suppressed evidence, and (3) permitting the State to introduce
  evidence of other bad acts at trial.
          
       ¶  7.   Defendant's first argument-that illegal wiretapping requires
  the trial court not only to exclude evidence derived from the wire but also
  to dismiss the case outright-fails for lack of support.  We first addressed
  the constitutionality of warrantless electronic monitoring conducted in the
  home in State v. Blow, where we held that such surveillance violates
  Chapter I, Article 11 of the Vermont Constitution.  157 Vt. 513, 520, 602 A.2d 552, 556 (1991); see also State v. Geraw, 173 Vt. 350, 357-58, 795 A.2d 1219, 1225 (2002) (affirming trial court's grant of motion to suppress
  audio recording of police interview in defendant's home as violative of
  Article 11).  We noted, however, the "distinction between electronically
  recorded evidence obtained in a suspect's home by an informant posing as a
  would-be drug customer and testimony from such an informant who uses only
  senses and memory."  Blow, 157 Vt. at 519-20, 602 A.2d  at 556 (clarifying
  that our holding did not conflict with the outcome in State v. Zaccaro, 154
  Vt. 83, 95, 574 A.2d 1256, 1263 (1990), where the trial court excluded
  recordings taken from a body microphone but the conviction did not rely on
  the suppressed evidence and was therefore upheld).  Here, the trial court
  properly suppressed the recording as well as evidence derived from use of
  the electronic monitoring device.  Despite wearing a wire, the source was
  an eyewitness to the drug transaction at defendant's home and, as such, was
  entitled to testify as to her direct observations-observations she would
  have made regardless of the wire.  Contrary to defendant's assertions, the
  fruit-of-the-poisonous-tree doctrine does not apply here, as the testimony
  presented at trial was independently based on the witness's "senses and
  memory" and did not derive from the unlawful monitoring.  See State v.
  Dupaw, 134 Vt. 451, 453, 365 A.2d 967, 968 (1976) (citing Wong Sun v.
  United States, 371 U.S. 471, 487-88 (1963), for the proposition that
  evidence is not fruit of the poisonous tree if it was obtained by "means
  sufficiently distinguishable" from the "primary illegality").  Nothing in
  our case law leads us to the conclusion that electronic monitoring in
  violation of Article 11 compels dismissal, and the trial court's denial of
  defendant's motion to dismiss was therefore appropriate.

       ¶  8.  Defendant's next claim of error is likewise unavailing.  He
  asserts that the trial court committed reversible error when it allowed the
  source to listen to the suppressed recording to refresh her memory prior to
  testifying but failed to ensure "that [the source] actually had a present
  recollection and that otherwise inadmissible evidence [did] not slip in
  inadvertently for its truth."  20th Century Wear, Inc. v. Sanmark-Stardust
  Inc., 747 F.2d 81, 93 n.17 (2d Cir. 1984).  At trial, however, the source
  testified  to her present recollection, stating that she had "a pretty good
  memory of what happened" on the day of the drug buy and that her testimony
  was not based on the "refreshings" with police officers the day before. 
  She testified as an eyewitness-participant to the drug transaction, and was
  ably cross-examined by defense counsel and impeached by her earlier
  deposition testimony.  Much like the situation in Zaccaro, where we found
  that a police officer's alleged use of suppressed evidence to refresh his
  recollection was harmless because the defendant failed to show prejudice,
  we can discern no adverse effect on defendant here.  154 Vt. at 94-95, 574 A.2d  at 1263.  The critical question under Article 11 is whether the
  illegal recording or any evidence derived therefrom was introduced into
  evidence; it was not.  Barring such a situation, defendant's claim of
  reversible error fails.
        
       ¶  9.  Finally, we reject defendant's argument that the trial court
  erred by admitting evidence of defendant's other drug-related activity and
  his involvement in an assault.  Defendant claims that the evidence was
  admitted in violation of Vermont Rule of Evidence 404(b) because its only
  relevance was to show defendant's propensity to engage in criminal conduct. 
  See State v. Catsam, 148 Vt. 366, 380, 534 A.2d 184, 193 (1987)
  (maintaining that other bad act evidence relevant only to show defendant's
  propensity for criminality is "absolutely inadmissible").  The record
  shows, however, that the court allowed the State to introduce evidence of
  defendant's involvement in another drug transaction on March 24 and a later
  assault, only after defense counsel opened the door to its introduction. 
  Specifically, defense counsel cross-examined the DEA officer about his
  knowledge of defendant prior to the controlled buy, implying that the
  officer had no information connecting defendant to drug activity at the
  time he began his investigation of defendant.  Furthermore, the defense
  questioned the officer about surveillance of defendant's home that took
  place between late January and March 4, suggesting that because the DEA
  officers did not gather enough evidence against defendant for a search
  warrant or arrest during that period, there was no evidence linking
  defendant to drug sales.  Finally, the defense asked the officer about a
  search of defendant's home and car on April 18, more than a month after the
  date of the controlled buy.  This prompted the officer to respond that
  nothing linking defendant to drugs was found during the search.  The trial
  court allowed the State to introduce testimony about defendant's March 24
  drug activity to rebut the inference created by defense counsel that the
  officers had no reason to suspect defendant other than some bias against
  him.  Likewise, the court allowed testimony that the April 18 search was
  pursuant to an assault charge, to counter the suggestion that the officers
  were merely on a fishing expedition for drug-related evidence and
  ultimately found nothing.  The trial court was entitled to use its
  discretion in admitting the evidence under Rule 404(b), not to show a
  propensity for criminality, but to correct the misimpression of bias
  created by the defense.  State v. Recor, 150 Vt. 40, 44, 549 A.2d 1382,
  1385-86 (1988) (sanctioning State's presentation of other bad acts in
  response to defense counsel's impeachment of witness's credibility "by
  painting an incomplete picture of unwarranted bias"); see also State v.
  Anderson, 2005 VT 17, ¶ 7, 178 Vt. 467, 868 A.2d 716 (mem.) (stating that
  review of trial court decision to admit evidence of other crimes, wrongs,
  or acts under Rule 404(b) is for abuse of discretion).

       ¶  10.  We agree with defendant that the trial court failed to
  conduct a proper Rule 403 balancing test in conjunction with its 404(b)
  ruling.  V.R.E. 403 (allowing otherwise admissible evidence to be excluded
  "if its probative value is substantially outweighed by the danger of unfair
  prejudice").  We have previously stated that the balancing test goes "hand
  in glove" with a Rule 404(b) determination, and must be conducted on the
  record, where a specific objection is made.  State v. Shippee, 2003 VT 106,
  ¶ 11, 176 Vt. 542, 839 A.2d 566.   Here, however, defendant failed to
  make a specific objection to the admission of the March 24 transaction and
  the later assault at trial, and therefore the Rule 403 claim was waived,
  absent a showing of plain error.  V.R.E. 103(a)(1), (d) (error cannot be
  predicated upon a ruling that admits evidence unless a timely objection is
  made "stating the specific ground for the objection, if the specific ground
  was not apparent from the context," or plain error exists); State v.
  Hooper, 151 Vt. 42, 46, 557 A.2d 880, 882 (1988).  Both the source and the
  DEA officer provided testimony that would reasonably lead a jury to believe
  that defendant handed the drugs to the source at his home on March 4. 
  Thus, we find no plain error and affirm the court's judgment.

       Affirmed.


                                       BY THE COURT:



                                       _________________________________________
                                       Paul L. Reiber, Chief Justice

                                       _________________________________________
                                       John A. Dooley, Associate Justice

                                       _________________________________________
                                       Denise R. Johnson, Associate Justice

                                       _________________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _________________________________________
                                       Christina C. Reiss, District Judge, 
                                       Specially Assigned




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                                  Footnotes

FN1.  Defendant was also charged with one count of domestic assault; however,
  the two counts were tried separately and defendant now appeals only the
  drug conviction.