State v. Maduro

State v. Maduro (2001-232); 174 Vt. 302; 816 A.2d 432

[Filed 25-Oct-2002]


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                                No. 2001-232


  State of Vermont	                         Supreme Court


                                                 On Appeal from
       v.	                                 District Court of Vermont,
                                                 Unit No. 2, Bennington Circuit 

  Samuel Maduro	                                 March Term, 2002


  Nancy Corsones, J.

  William H. Sorrell, Attorney General, and David Tartter, Assistant Attorney
    General, Montpelier, for Plaintiff-Appellee.

  Allison N. Fulcher of Martin & Associates, Barre, for Defendant-Appellant.


  PRESENT:  Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.


       MORSE, J.   Defendant Samuel Maduro, also known as Samuel Penney,
  appeals from the district court's judgment of conviction following a jury
  trial on charges of delivery of cocaine in violation of 18 V.S.A. §
  4231(b)(3) and conspiracy to sell cocaine in violation of 13 V.S.A. §
  1404(a).  He argues on appeal that the trial court improperly admitted
  evidence of prior uncharged bad acts as direct evidence of the conspiracy,
  as well as evidence of intent on the delivery charge, and that the court
  erroneously denied his motion for judgment of acquittal on the charge of
  delivery.  Because we agree that the evidence was erroneously admitted, we
  reverse and remand for a new trial.

 
          
       The charges at issue stem from events occurring in the spring of 1999. 
  The affidavit submitted in support of the charges alleged that, between
  February 1999 and May 1999, defendant engaged in a conspiracy to sell
  cocaine.  As laid out in the affidavit, the conspiracy consisted of the
  defendant providing materials such as crack cocaine, cash and scales to a
  juvenile, K.M., to hold for him when police searched his apartment pursuant
  to conditions of his furlough status, and included, on one occasion, asking
  K.M. to give crack cocaine to an individual in exchange for cash at
  defendant's apartment while he was not there.  The affidavit also alleged
  that on May 1, 1999, defendant delivered to K.M. roughly seventy-seven
  grams of crack cocaine to hold for him, which K.M. provided to the police
  when they contacted her in the course of investigating defendant's
  activities.  	

       Defendant was charged with the above crimes in June 1999.  A little
  less than a month before the case was set to go to trial in September 2000,
  the State disclosed an additional witness it intended to call who would
  provide "prior bad act" evidence.  Specifically, the State intended to call
  Keith Merrow to testify that defendant provided him with powder and crack
  cocaine at their common workplace to sell between January and May 1999. 
  Defendant moved in limine to exclude the evidence.  In response, the State
  argued that the evidence was not only admissible to show intent with regard
  to the conspiracy charge, but was also direct evidence of the conspiracy
  itself because Merrow also formed part of that conspiracy.  The court heard
  argument on the motion the first day of trial and denied defendant's
  motion.  The court decided to let the evidence in, both as direct evidence
  of the conspiracy itself and for the purpose of showing plan and intent on
  the conspiracy offense. 

 

       The trial resulted in a hung jury on both charges.  Prior to
  defendant's new trial, he again moved to exclude Merrow's testimony.  In
  response, the State simply renewed its previous arguments in opposition to
  defendant's motion.  At no time, however, between the first and second
  trial did the State attempt to amend its information charging defendant
  with conspiracy in any way, nor did it bring any additional charges against
  defendant.  The trial court issued an order indicating the motion would be
  taken up at the beginning of trial.  Following a short discussion
  revisiting its original ruling, the court indicated that it would not
  change the ruling and thus would make the same ruling on defendant's new
  motion.

       Accordingly, Merrow testified at trial that he had met defendant in
  jail and then later worked with him for the same employer.  He stated that
  defendant approached him at work and asked if he would sell cocaine for
  him.  Merrow agreed to do so and worked out an arrangement in which he
  found customers, found out how much of the drug they wanted, and then
  procured it from defendant.  He would then receive a percentage of the
  sale.  Merrow stated that defendant did not know who his customers were and
  that he never brought the customers to defendant's apartment.  He then
  testified that he remembered seeing a young girl at defendant's apartment
  on some of the occasions when he would visit to pick up drugs.  He also
  testified, however, that K.M. - presumably the young girl, although never
  directly identified by Merrow - did not participate in any of his
  transactions, did not provide him with drugs or money, and was never a
  witness to the transfers from defendant. 
   
       Following Merrow's testimony, the trial court determined that the
  whole of his testimony went to the charged conspiracy and thus there was no
  need for any limiting instructions to the jury at that point in the trial. 
  Defendant objected, and the court overruled his objection.  At the close of
  trial, during the jury charge, the court affirmatively instructed the jury
  that it could consider 

 

  Merrow's testimony as direct evidence of the conspiracy charge involving
  K.M.  It also added, however, that, if the jury determined that Merrow's
  testimony was related to a separate uncharged conspiracy, it could still
  consider the evidence

    as proof of the opportunity to commit the crimes of which the
    defendant is charged; the defendant's intent to commit the crimes
    of which he is charged; the defendant's preparation for and plan
    to commit the crimes of which he is charged; the defendant's
    knowledge and absence of mistake in committing the crimes he is
    accused of.

       After the charge to the jury, defendant objected to the above-quoted
  portion, requesting that the court limit the instruction to the conspiracy
  charge and direct the jury not to consider it as evidence of opportunity,
  etc., with regard to the delivery charge.  Defendant argued that the
  testimony did not demonstrate those things with respect to the charged
  delivery, and that it also was unfairly prejudicial with respect to the
  delivery charge.  The court declined to do so.  Defendant now appeals to
  this Court.

       Defendant argues that the trial court's decision that the evidence was
  admissible as direct evidence of the charged conspiracy, as well as its
  ultimate admission of the evidence for somewhat more limited purposes under
  V.R.E. 404(b) on the delivery charge, was reversible error.  More
  specifically, defendant first argues that the trial court erroneously
  determined that V.R.E. 404(b) did not apply to the evidence with regard to
  the conspiracy charge.  He contends that the testimony was not direct
  evidence of the charged conspiracy, but was instead evidence of a separate
  uncharged conspiracy.  In other words, defendant argues that the trial
  court erroneously determined that the Merrow testimony was directly
  relevant as res gestae evidence with respect to the charged conspiracy.

 

       We have previously noted that "[c]rimes which form a body of evidence
  relating to the events surrounding the crime of which a defendant is
  charged are part of the res gestae."  State v. Norton, 147 Vt. 223, 235,
  514 A.2d 1053, 1061 (1986).  As such, they do not require a limiting
  instruction that would otherwise accompany evidence of uncharged bad acts. 
  Id.  As another court has noted, res gestae evidence "is generally linked
  in time and circumstances with the charged crime, or forms an integral and
  natural part of an account of the crime," and "is not subject to the
  general rule that excludes evidence of prior criminality."  People v.
  Quintana, 882 P.2d 1366, 1373 (Colo. 1994) (internal quotation marks and
  citations omitted) (holding three separate statements threatening to kill
  other people, made in the course of killing another individual, each
  constituted part of res gestae of a single incident of murder, as opposed
  to separate uncharged bad acts).  In fact, the trial court explicitly
  relied on Quintana when it concluded that Merrow's testimony described acts
  that formed part of the charged conspiracy.
   
       The determination of what acts constitute the res gestae of a single
  conspiracy, as opposed to multiple separate conspiracies, presents special
  challenges for a court, however.  Cf. 2 W. LaFave & A. Scott, Substantive
  Criminal Law § 6.5(a), at 89 (1986) ("The breadth of the law of conspiracy
  makes it subject to prosecutorial and judicial abuse.") (footnotes
  omitted); see also United States v. Evans, 970 F.2d 663, 668 (10th Cir.
  1992) (court is "mindful that the conspiracy doctrine in inherently subject
  to abuse and that the government frequently uses conspiracy to cast a wide
  net that captures many players").  The United States Supreme Court
  addressed the problem and the ensuing consequences of conflating multiple
  conspiracies with a single conspiracy in Kotteakos v. United States, 328 U.S. 750, 769-77 (1946), a case in which the government charged a single
  conspiracy involving thirty-two defendants.  It noted the confusion of "the
  common purpose of a single 

 

  enterprise with the several, though similar, purposes of numerous separate
  adventures of like character," in a scenario involving "separate spokes
  meeting in a common center, though . . . without the rim of the wheel to
  enclose the spokes."  Id. at 769, 755 (internal quotation marks omitted). 

       Notably in this case, the charge involves only defendant, and the
  affidavit in support of the charge names only K.M. as a coconspirator.  No
  mention is made of defendant's activities with Merrow in the charging
  documents.  Cf. Evans, 970 F.2d  at 674 n.13 ("The government has the power
  to define the scope of the conspiracy as broadly as it thinks the facts
  will justify, but if it fails to prove the conspiracy as charged, it will
  fail to obtain a conviction.").  Nevertheless, the court determined that
  the activities formed part of the conspiracy and thus allowed the evidence
  in directly.  We cannot agree.
   
       When determining whether one or multiple conspiracies exist, courts
  have looked for the existence of  "(1) a common goal, (2) interdependence
  among the participants, and (3) overlap among the participants."  United
  States v. Portela, 167 F.3d 687, 695 (1st Cir. 1999) (footnote ommitted);
  see also Evans, 970 F.2d  at 668 (noting more general elements of
  conspiracy).  In a "wheel" conspiracy such as one at issue here, where the
  State argues defendant formed the hub, and K.M. and Merrow formed the
  spokes, there must be a "rim" for there to be one conspiracy.  See United
  States v. Rosnow, 977 F.2d 399, 405 (8th Cir. 1992) ([T]hose people who
  form the wheel's spokes must have been aware of each other and must do
  something in furtherance of some single, illegal enterprise.") (quoting
  U.S. v. Levine, 546 F.2d 658, 663 (5th Cir. 1977)); United States v. Kenny,
  645 F.2d 1323, 1334-35 (9th Cir. 1981) (to establish a rim, "the
  circumstances must lead to an inference that some form of overall agreement
  exists."); see also 2 LaFave & Scott, supra § 6.5(d)(2), at 100 (noting
  wheel conspiracy "is by its nature less likely to support the conclusion
  that 

 

  the parties had a community of interest" so as to support a single
  conspiracy charge).  The existence of the "rim" can be shown through
  evidence that the conspirators "intended to act together for their shared
  mutual benefit within the scope of the conspiracy charged."  Evans, 970 F.2d  at 671.  Alternatively, the State can demonstrate that the
  conspirators "had reason to believe that their own benefits were dependent
  on the success of the entire venture."  Kenny, 645 F.2d  at 1335 (internal
  quotation marks omitted).

    Establishing "interdependence" among the participants requires
    determining whether the activities of one aspect of the scheme are
    necessary or advantageous to the success of another aspect of the
    scheme.  Each individual must think the aspects of the venture
    interdependent, and each [participant's] state of mind, and not
    his mere participation in some branch of the venture, is key.

  Portela, 167 F.3d  at 695 (internal quotation marks and citations omitted). 
  An agreement among co-conspirators need not be explicit, however, and may
  be inferred from the participants' acts or other circumstantial evidence. 
  See Kenny, 645 F.2d  at 1335.
   
       Nowhere in its proffer of Merrow's testimony did the State point to
  evidence of such factors as listed above.  Furthermore, Merrow's and K.M.'s
  testimony at trial at best established that they simply recognized one
  another from defendant's apartment.  It did not establish an awareness of
  each other's participation in any way, general or otherwise, in the charged
  conspiracy.  And the State did not offer to prove, nor did the testimony
  demonstrate, that Merrow and K.M. were interdependent in any way, or shared
  a community of interest.  Thus, the wheel in this case lacks a rim to
  connect the two spokes to support one conspiracy instead of two.  Cf.
  Rosnow, 977 F.2d  at 406 (evidence insufficient to show single conspiracy
  instead of several).  Defendant's activities with Merrow were not part and
  parcel of the charged conspiracy involving K.M. as determined by the trial
  court.  

 

  Therefore, Merrow's testimony was not relevant as direct evidence of
  defendant's conspiracy with K.M. 

       Because the trial court improperly admitted the Merrow testimony as
  direct evidence of the charged conspiracy, and specifically instructed the
  jury that they could use it for that purpose, we must reverse defendant's
  conviction on that charge and remand for a new trial.  In essence, the
  admission, in combination with the court's instruction, allowed the jury to
  convict defendant on the conspiracy charge based on his activities with
  Merrow - a separate and uncharged conspiracy - as opposed to his activities
  with K.M.  Cf. Rosnow, 977 F.2d  at 407 ("When the proof at trial reveals
  the existence of more than one conspiracy, the adequacy of the trial
  judge's instructions are of critical importance in evaluating the
  likelihood [that] confusion or prejudice resulted from transference of
  guilt from one conspiracy to another.") (internal quotation marks omitted;
  alteration in original).
   
       This resolution does not dispose of the delivery charge, however.  The
  question remains whether the trial court also improperly admitted the
  evidence under V.R.E. 404(b) with respect to the charge of delivering crack
  cocaine to K.M.  We briefly address defendant's challenge to the
  sufficiency of the evidence supporting the charge, however, as resolution
  in defendant's favor would obviate the potential for remand on the
  evidentiary issue.  Cf. State v. Durenleau, 163 Vt. 8, 10, 15, 652 A.2d 981, 984 (1994) (reaching sufficiency issue first because it disposed of
  case, and double jeopardy prevented retrial).  Defendant contends that the
  State has failed to prove that he had possession of the cocaine originally,
  prior to delivering it to K.M.  K.M. testified, however, that defendant
  physically gave it to her to hold for him while she was visiting him in his
  apartment in early May.  This sufficiently establishes that it was in
  defendant's possession before he transferred 

 

  it to K.M.  To the degree that defendant challenges K.M.'s reliability as a
  witness, such determinations are matters for the fact finder.  See State v.
  Couture, 169 Vt. 222, 227, 734 A.2d 524, 528 (1999).   

       We now turn to defendant's V.R.E. 404(b) argument.  As described
  above, the State originally offered the Merrow testimony under V.R.E.
  404(b) only to show intent on the conspiracy charge.  In response to
  defendant's motion in limine to exclude the evidence, the trial court
  determined that, in addition to coming in as direct evidence, it could
  alternately be admitted to show both plan and intent on the conspiracy
  charge.  At defendant's retrial, it renewed its ruling.  Although the
  Morrow testimony went only to the conspiracy charge and not to the delivery
  charge, the court issued no limiting instruction whatsoever at the time
  Merrow testified.  Furthermore, when it came time to charge the jury, the
  court instructed that the Merrow testimony could not only be used with
  respect to the delivery charge - going beyond its original ruling in that
  respect - but that is could be used to show opportunity, preparation,
  knowledge and lack of mistake,  in addition to just plan and intent. 
  Defendant objected. 

       As we have emphasized, when uncharged bad acts are at issue:

         The State has the burden to show precisely how the proffered
    evidence is relevant to the theory advanced, how the issue to
    which it is addressed is related to the disputed elements in the
    case, and how the probative value of the evidence is not
    substantially outweighed by its prejudicial effect.  The evidence
    must relate to an element of the offense or the defense that is
    genuinely in issue.

  State v. Winter, 162 Vt. 388, 393, 648 A.2d 624, 627 (1994) (citations
  omitted; emphasis added).
   
       Arguably defendant placed his opportunity to possess the seventy-seven
  grams of crack - a substantial amount - in issue by advancing the theory
  that the possibility of frequent, random 

 

  searches of his apartment resulting from his furlough status would preclude
  him from having drugs on the premises.  Additionally, defendant advanced
  the theory that the crack belonged to the boyfriend of K.M.'s mother and
  not him.  Nevertheless, the State never linked the Merrow testimony to
  dispelling either of these theories of defense to the delivery charge.  See
  State v. Ryan, 135 Vt. 491, 497, 380 A.2d 525, 529 (1977) ("Where there is
  doubt about the probative value of the prior crime evidence, that doubt
  should be resolved in favor of the defendant and the evidence ruled
  inadmissible.")  And the court's charge did not limit its use to these
  considerations, but rather allowed the jury to use the testimony for a
  laundry list of purposes on both charges.
   
       Because of the open-ended instruction, which was varied from its
  original ruling that the evidence would be admitted only to show intent and
  plan to commit the offense of conspiracy, we cannot affirm.  The court's
  admission cannot be said to be harmless with respect to the delivery charge
  given that the only evidence in support of that charge is K.M.'s testimony
  that the crack she gave to the police was provided to her by defendant. 
  See State v. Fuller, 168 Vt. 396, 408, 721 A.2d 475, 484 (1998) (harmless
  error analysis focuses on the evidence of guilt in the record absent the
  error).  Thus, we cannot say beyond a reasonable doubt that Merrow's
  testimony to repeated drug deals with defendant involving crack and powder
  cocaine did not contribute to the verdict.  See State v. Carter, 164 Vt.
  545, 553-57, 674 A.2d 1258, 1264-66 (1996) (adopting the standard applied
  in Chapman v. California, 386 U.S. 18 (1967) for constitutional and
  nonconstitutional error and noting standard was a restatement of principle
  that error "could not be harmless if there is a reasonable possibility that
  the evidence complained of might have contributed to the conviction")
  (internal quotation marks and citation omitted); see also Fuller, 168 Vt.
  at 408, 721 A.2d  at 484 ("Harmless error analysis requires the reviewing
  court to inquire if, absent the alleged error, it is clear beyond 

 

  a reasonable doubt that the jury would have returned a guilty verdict
  regardless of the error.") (internal quotation marks and citation omitted).

       Reversed and remanded for proceedings consistent with this opinion.



                                       FOR THE COURT:



                                       _______________________________________
                                       Associate Justice