State v. Lee
Annotate this Case
State v. Lee (2002-512)178 Vt. 420; 886 A.2d 378
2005 VT 99
[Filed 19-Aug-2005]
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.
2005 VT 99
No. 2002-512
State of Vermont Supreme Court
On Appeal from
v. District Court of Vermont,
Unit No. 2, Bennington Circuit
Lamont Lee October Term, 2004
David A. Howard, J.
William D. Wright, Bennington County State's Attorney, and Brian K.
Marthage, Deputy State's Attorney, Bennington, for Plaintiff-Appellee.
Matthew F. Valerio, Defender General, and Anna Saxman, Deputy Defender
General, Montpelier, for Defendant-Appellant.
PRESENT: Dooley, Johnson, Skoglund and Reiber, JJ., and
Allen, C.J. (Ret.), Specially Assigned
¶ 1. DOOLEY, J. Defendant appeals his convictions on two counts
of felony sale of cocaine, possession of marijuana, and attempting to elude
a police officer. He argues that he was unfairly prejudiced by the
admission of photographic evidence of two guns the police found during
searches of defendant's home and vehicle. Defendant also challenges the
court's jury instructions. We affirm.
¶ 2. In August 2000, defendant was living in Pownal with his
girlfriend and her mother, Beverly Washington. Beverly became concerned
that defendant was dealing drugs, and she contacted law enforcement
authorities. Eventually, Beverly spoke with a trooper assigned to the
Southern Vermont Drug Task Force (SVDTF) and agreed to assist him in an
investigation of defendant's activities. Thereafter, Beverly purchased
cocaine from defendant on two occasions while wearing a hidden recording
device. The investigation ended when Beverly informed her contact at SVDTF
that defendant had acquired two guns. The information prompted the trooper
to arrest defendant.
¶ 3. On August 30, 2000, the police were watching defendant's
residence when they saw defendant drive towards Route 7. The officers
signaled for defendant to pull over, but he drove away. After some
pursuit, defendant pulled his vehicle over to the side of the road, jumped
out of the still moving vehicle, and ran. The police eventually caught up
with defendant, arrested him, and searched his home and vehicle pursuant to
a search warrant. During the search of defendant's car, the police found
an unloaded .410 caliber gun on the driver's side floor. Another gun,
along with marijuana, was found in a closet off of the bedroom defendant
shared with his girlfriend.
¶ 4. On August 31, 2000, the State filed informations in district
court charging defendant with attempting to elude a police officer,
possession of marijuana, and two counts of felony sale of cocaine. In May
2002, defendant filed notice with the court that he intended to raise
entrapment as an affirmative defense. Defendant also filed motions in
limine to exclude certain evidence, two of which are relevant to this
appeal. The first sought to exclude photographic evidence of the gun found
in defendant's car and the gun found in the bedroom where defendant was
staying. Defendant argued that the gun evidence would unfairly prejudice
him because it lacked any probative value. Defendant's motion noted that
because he was a previously-convicted felon, possession of the guns was a
federal offense, and he had already been convicted and sentenced for this
offense in federal court.
¶ 5. The second motion in limine related to evidence of a nighttime
intrusion into defendant's residence by two men sometime between August 24
and August 28, 2000. The intruders ransacked defendant's room, assaulted
him, and tied-up him and his girlfriend. The intruders shouted references
to crack cocaine during the break-in and assault. Defendant argued that
evidence of the home invasion was overly prejudicial and irrelevant to the
charges against him.
¶ 6. The court excluded evidence of defendant's federal gun
conviction and the intrusion into defendant's home, and admitted the
photographs of the guns. The court found that the gun evidence was
probative of three issues. First, the presence of a gun in defendant's car
could explain why he ran away from the police. Second, the guns were tools
of the drug-trade. Third, the fact that he possessed two firearms could
rebut an inference that Beverly and the police entrapped him into selling
cocaine-defendant's primary defense to the drug-sale charges.
¶ 7. Before the second day of trial began, defendant's attorney
announced that he wanted to present evidence about the break-in. He argued
that the gun evidence was so prejudicial to defendant that he was compelled
to rebut it by introducing the break-in to support defendant's claim that
he obtained the guns for protection. Noting that defendant's decision was
a strategic one, the court ruled that it would permit him to introduce
limited evidence about the break-in. The jury eventually convicted
defendant of all the charges against him, and this appeal followed.
¶ 8. We first address defendant's claim that the trial court erred
in admitting the gun evidence. In deciding whether to admit evidence, the
court must make an initial determination that the evidence is relevant.
V.R.E. 402 ("All relevant evidence is admissible, except as limited by
constitutional requirements or as otherwise provided by statute . . . .
Evidence which is not relevant is not admissible."). Relevant evidence
encompasses any evidence that makes the existence of a fact that is "of
consequence to the determination of the action" more probable than not.
V.R.E. 401. If relevant, the court may still exclude the evidence "if its
probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of
cumulative evidence." V.R.E. 403.
¶ 9. Defendant argues that evidence of his gun possession was
irrelevant to the crimes for which he was charged, and, even if relevant,
its probative value was so limited and its prejudicial impact so great that
it had to be excluded under Rule 403. The State responds that evidence of
the gun found in the closet was relevant to show he possessed the marijuana
also found in the closet, and evidence of the gun found in the car was
relevant to show his motive to elude the police when they attempted to
arrest him.
¶ 10. The decisions from other jurisdictions, particularly from the
federal courts, overwhelmingly support the main ground on which the court
relied-that the guns are relevant to show defendant is a drug dealer. (FN1)
Thus, in a leading case, the United States Court of Appeals for the Second
Circuit held: "Experience on the trial and appellate benches has taught
that substantial dealers in narcotics keep firearms on their premises as
tools of the trade almost to the same extent as they keep scales, glassine
bags, cutting equipment and other narcotics equipment." United States v.
Wiener, 534 F.2d 15, 18 (2d Cir. 1976). Other circuits have affirmed
admission of gun evidence on the same rationale. See United States v.
Martinez, 938 F.2d 1078, 1082-83 (10th Cir. 1991) (admitting evidence of
semi-automatic submachine gun found in house defendant entered during drug
transaction as "tools of the trade") (collecting cases); see also United
States v. Ward, 171 F.3d 188, 195 (4th Cir. 1999) ("Guns are tools of the
drug trade and are commonly recognized articles of narcotics
paraphernalia."); United States v. Price, 13 F.3d 711, 719 (3d Cir. 1994)
(recognizing that evidence of gun possession was highly probative of drug
conspiracy); United States v. Fagan, 996 F.2d 1009, 1015 (9th Cir. 1993)
(affirming admission of evidence of a gun and ammunition found in residence
of defendant charged with possession and distribution of cocaine).
Defendant argues that this relevancy theory does not apply in this case
because the drug sales occurred before defendant acquired the guns. The
relevancy theory does not depend on the use of the guns in the drug sale.
(FN2) See Martinez, 938 F.2d at 1083 (explaining that it is "basically
immaterial to the admissibility inquiry" whether defendant has been charged
with an offense involving use of the gun); State v. Smith, 1992 WL 61363,
No. CA-8715, at *3 (Ohio Ct. App. Mar. 16, 1992). The dissent emphasizes
that defendant obtained possession of the guns after the date of the drug
sales for which he is charged. While the time gap between the drug sales
and the possession of the guns may go to the weight of the evidence, we do
not believe that it makes the gun evidence irrelevant, as the dissent
argues. (FN3) In fact, defendant had owned the guns before the drug
sales, but had left them with a friend, apparently because it was a federal
offense for defendant to possess a gun.
¶ 11. In addition to challenging relevancy, defendant makes the
stronger argument that the gun evidence should have been excluded under
Rule 403 as unduly prejudicial. Here, however, defendant must overcome a
very deferential standard of review. Rule 403 rulings are "highly
discretionary," State v. Gibney, 2003 VT 26, ¶ 23, 175 Vt. 180, 825 A.2d 32, even more so when they refuse to exclude evidence because the rule
provides that the danger of unfair prejudice must substantially outweigh
the probative value of the evidence. State v. Percy, 158 Vt. 410, 415, 612 A.2d 1119, 1123 (1992). "Absent an abuse of discretion, in which the court
either totally withholds or exercises its discretion on clearly untenable
or unreasonable grounds, the trial court's evidentiary ruling stands on
appeal." State v. Ogden, 161 Vt. 336, 341, 640 A.2d 6, 10 (1993).
Defendant's prejudice argument is essentially that the jury would give too
much weight to the gun evidence, especially because defendant is black,
finding that he was a drug dealer solely because he possessed guns.
¶ 12. We conclude that the balance to be struck falls within the
wide discretion of the trial court. See Ward, 171 F.3d at 195 (decision
whether to admit gun evidence in a drug sales prosecution must be made on a
case-by-case basis by the trial court). The trial court noted that the
guns were probative of whether defendant was involved in the drug
transactions, and that possession of firearms is common in Vermont so the
danger of unfair prejudice was minimized. The dissent claims the gun
evidence was prejudicial because it depicted defendant as a dangerous
person and cumulative because neutral evidence could have established
defendant's possession of the marijuana. The dissent then goes on to do
its own balancing of the gun's probative weight versus the danger of unfair
prejudice or confusion of the issues, concluding that the "combination of
prejudice and cumulativeness tips the 403 scales toward the side of
exclusion," post, ¶ 36, so that the court's admission was error. "Our
precedents have not required that the trial court specify precisely the
weight it assigns to probative value or prejudicial effect or specify why
one overweighs the other." State v. Derouchie, 153 Vt. 29, 35, 568 A.2d 416, 419 (1989). We find no abuse of discretion in the decision to admit
the gun evidence under Rule 403.
¶ 13. The dissent further asserts that the trial court's error in
concluding that the prejudicial effect of the gun evidence did not
substantially outweigh its probative value under Rule 403 was not harmless
and requires reversal. Under our rules, erroneous admission of evidence is
harmless if the jury would have returned a guilty verdict regardless of the
error. State v. Wright, 154 Vt. 512, 519-20, 581 A.2d 720, 725 (1989); see
V.R.Cr.P. 52(a) ("Any error . . . which does not affect substantial rights
shall be disregarded."). The dissent speculates that the gun evidence so
influenced the jury's consideration of defendant's entrapment defense that
the verdict is compromised. Because we decide that the court's decision
was within its discretion, we do not reach the question of whether such an
error would be reversible.
¶ 14. Defendant fares no better in arguing that the court should
have examined the admissibility of the gun evidence under Rule of Evidence
404(b). Rule 404(b) prohibits "[e]vidence of other crimes, wrongs, or
acts" to prove an accused's bad character, but permits such evidence as
"proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident." Defendant claims that the
trial court failed to specifically articulate the reason it admitted the
evidence under Rule 404(b). This argument is raised for the first time on
appeal. Defendant never argued to the trial court that the gun evidence
was inadmissible bad act evidence intended to demonstrate defendant's
character. Thus, the argument is not preserved for our review. V.R.E.
103(a)(1); State v. Lettieri, 149 Vt. 340, 343-44, 543 A.2d 683, 685
(1988).
¶ 15. Even if defendant had preserved the argument, the result would
be no different because he has not explained how the mere possession of a
firearm amounts to a bad act. The trial court's ruling recognizes that gun
ownership in Vermont is not unusual. The fact that defendant was convicted
of possessing the guns unlawfully does not alter the analysis because the
jury was unaware defendant was prohibited from possessing a firearm and of
his resulting conviction. Absent evidence to demonstrate that defendant's
gun possession was somehow wrongful, the court was not required to analyze
admission of the evidence under a Rule 404(b) standard.
¶ 16. Defendant also argues that the admission of the gun evidence
was reversible error because it required him to explain why he possessed
them by presenting testimony about the home invasion. Defendant
characterizes his circumstances as a Hobson's choice, because although he
knew the home invasion evidence was prejudicial, he was forced to introduce
it due to the trial court's ruling on the gun evidence.
¶ 17. Defendant's argument is unpersuasive. The trial court's
obligation is to rule on admissibility questions prior to trial when the
evidence may affect defense strategy. See State v. Ryan, 135 Vt. 491, 497,
380 A.2d 525, 528-29 (1977) (directing trial court to rule on motion at
inception of trial if ruling will affect defense strategy). After an
admissibility ruling, it is the defendant's decision how to proceed with
trial strategy. See State v. Byrne, 149 Vt. 257, 263, 542 A.2d 667, 671
(1988) (holding that once defendant decided to open the door to a line of
questioning, defendant could not claim error on appeal). Defendant adopted
the trial strategy of showing the home invasion although, in retrospect, it
may have reinforced the impression that defendant wanted to avoid-that he
obtained the guns to combat the kind of violence associated with drug
dealing. As a result, the testimony focused in detail on the guns, where
the references to them would otherwise have been brief. Defendant, not the
trial court, bears the responsibility for these choices.
¶ 18. Defendant's last challenge is to the court's jury instruction,
explaining that evidence of defendant's "alleged prior bad acts" had been
admitted, but the evidence could be considered for a limited purpose only.
The court explained that such evidence cannot be used to prove defendant
has a bad character, and that because of this character, he committed the
offenses charged. Defendant claims the instruction labeled the gun
evidence as "bad," thereby causing the prejudice the court said was absent
from the mere ownership of guns in Vermont. He also contends that the
court did not put the instruction in context by failing to identify the
evidence to which it related and to explain its proper purpose.
¶ 19. We review this last claim for plain error because defendant
did not object to any portion of the jury instructions, including the
instruction he now asserts was erroneous. V.R.Cr.P. 30; State v. Little,
167 Vt. 577, 578, 705 A.2d 177, 179 (1997) (mem.). To prevail under this
standard, defendant must show that the error was so grave and prejudicial
that "failure to recognize it would strike at the heart of defendant's
constitutional rights or result in a miscarriage of justice." State v.
Carrasquillo, 173 Vt. 557, 559, 795 A.2d 1141, 1144 (2002) (mem.). As we
discussed above, defendant's possession of the guns was not a bad act, and
there is no indication that the jury would have thought it so. Because we
have no transcript of a jury charge conference to show how the charge was
constructed, we do not know why the court included a bad act charge or to
what evidence it referred. See V.R.Cr.P. 26(c) (requiring court to give a
limiting instruction, "if requested," when evidence of "other criminal
offenses" is admitted). In any event, we cannot conclude that this
instruction prejudiced defendant and certainly cannot conclude that it
struck at the heart of defendant's constitutional rights or resulted in a
miscarriage of justice.
Affirmed.
FOR THE COURT:
_______________________________________
Associate Justice
------------------------------------------------------------------------------
Dissenting
¶ 20. JOHNSON, J., dissenting, I cannot agree with the majority's
holding that a defendant's gun ownership is per se relevant to show that a
defendant is a "drug dealer." Although there may be specific instances in
which gun evidence would be relevant to the State's case against a
defendant accused of selling drugs, this is not such a case. The State
charged defendant with two counts of selling cocaine. A week after the
second and final transaction upon which the charges were based, defendant
acquired two firearms. Defendant neither used the guns as part of the drug
transactions, nor even possessed the guns at the time the sales occurred.
Nonetheless, the majority adopts the trial court's conclusion that the gun
evidence is probative of whether defendant was involved in the sales. I
recognize that we have a broad standard for relevance, and that the trial
court's rulings on this issue will only be reversed on a showing that the
court abused its discretion. Even under that deferential standard of
review, I fail to see how the acquisition of firearms that occurs after and
independently from a nonviolent drug sale tends to show that defendant sold
drugs on the earlier occasions. Even if I were to accept this attenuated
inference, I would still conclude that the after-acquired firearms should
have been excluded because their slight probative value in this case is
substantially outweighed by the prejudice and confusion of the issues that
their introduction caused. I would hold that the guns were not relevant in
the context of this case, and, moreover, the court's refusal to exclude
them under Vermont Rule of Evidence 403 was an abuse of discretion.
Accordingly, I dissent.
¶ 21. The majority correctly notes that our rule-based relevance
standard is broad. The majority is incorrect, however, in asserting that
the "time gap between the drug sale and the possession of the guns" goes
only to the weight the gun evidence should be given by the trier of fact,
ante, ¶ 10. Temporal remoteness may also be a bar to admissibility. Cf.
State v. Winter, 162 Vt. 388, 396-97, 648 A.2d 624, 629 (1994) (holding
that remoteness of evidence of accused's prior crimes affects admissibility
as well as weight). As the Reporter's Note to Rule 401 recognizes,
"evidence which is logically probative in a technical sense may still be
irrelevant for the familiar reason that it is of a matter too remote in
time or place." Accordingly, we have held that questions of remoteness lie
largely within the trial court's discretion, except at the "extremes of
relevance where the probative value of the evidence is . . . so slight as
to require its exclusion as a matter of law." Bradley v. Buck & Buck, 131
Vt. 368, 371, 306 A.2d 98, 101 (1973).
¶ 22. In ruling on the motion to exclude, the trial court stated
that it did not "feel that it's that speculative; that an argument can be
made that, you know, that firearms may be used in drug transactions," and
thus the guns had "some probative value as to the issue of whether
[defendant] was involved in these transactions." I agree that guns are
sometimes used in drug transactions, either for the protection of the
dealer or as tender in the exchange for drugs. It defies common sense,
however, to suggest that guns that were not even in defendant's possession
at the time of the drug transactions somehow make it more likely that
defendant participated in the earlier transactions.
¶ 23. Under Rule 401, evidence that does not pertain directly to an
element of the crimes charged, such as the guns in this case, may still be
relevant to the resolution of other factual disputes of "consequence." But
in this case, there is no logical connection between the guns and the
evidentiary narrative relating to the drug charges. There is no evidence
that guns were used in the drug deals that defendant is charged with
executing, or in any other drug deals for that matter. Nothing in the
evidence suggests that defendant alluded to the guns in any way and at any
time prior to or during the drug deals. Similarly, the State has not
suggested that defendant purchased the guns with proceeds from the drug
sales, and thus that the guns represent fruits of defendant's criminal
enterprise. Instead, the State's case is based on testimony from the
police informant who purchased the drugs directly from defendant while
wearing a recording device, and the police officers who facilitated and
supervised the informant. The State also introduced the taped conversation
that transpired between defendant and the informant at the time of the
second purchase, and the cocaine that the informant obtained after her
encounters with defendant.
¶ 24. When compared to the substantial direct evidence that
defendant was in fact involved in the alleged transactions, and in light of
the majority's recognition of and reliance on the fact that gun ownership
is common in Vermont, the gun evidence here is circumstantial evidence with
infinitesimal probative value. In view of its after-the-fact remoteness
and slight probative value, the gun evidence should have been excluded as a
matter of law.
¶ 25. A close inspection of the cases cited by the majority in
support of its "tools of the trade" per se relevance theory reveals several
important distinctions between those cases and the instant case. Most of
the cases the majority cites in support of its rationale involve drug
conspiracies. Unlike the present case, where the prosecution has ample
direct evidence of defendant's involvement in the drug deals, prosecutors
in conspiracy cases should receive greater latitude with circumstantial
evidence, which is often the only type of evidence available to prove the
conspiracy. See State v. Berger, 733 A.2d 156, 164 (Conn. 1999) ("Because
of the secret nature of conspiracies, a conviction usually is based on
circumstantial evidence."); United States v. Infante, 404 F.3d 376, 385
(5th Cir. 2005) ("[B]ecause secrecy is the norm in drug conspiracies, each
element of the crime may be established by circumstantial evidence.").
¶ 26. For example, in United States v. Martinez, 938 F.2d 1078 (10th
Cir. 1991), defendant was charged with cocaine distribution and conspiracy
to distribute cocaine. The court admitted guns that were hidden in a house
that defendant visited while under surveillance, along with a half pound of
cocaine found there, to prove a "key point in support of [the
prosecution's] evidentiary hypothesis" that the house was a " 'stash'
house" where defendant procured his drugs on the day of the deals leading
to his arrest. Id. at 1084. Thus, the court affirmed the district court's
decision to admit the items as probative of the defendant's participation
in the drug distribution business. Id. at 1083.
¶ 27. The defendant in United States v. Wiener, 534 F.2d 15 (2d Cir.
1976) was charged with one count of conspiracy and two counts of possession
with intent to distribute hashish. The court affirmed admission of a gun
found in his apartment on the day of his arrest. Id. at 18. The
defendant's apartment was the alleged "focal point" of his drug ring, and
the gun was found in a bag with marijuana and hashish smoking
paraphernalia. Id.
¶ 28. Similarly, in United States v. Price, 13 F.3d 711 (3d Cir.
1994), where defendant was one of several accused drug conspirators, the
court upheld the admission of a prior gun conviction because it was "highly
probative of the large scale of a narcotics distribution conspiracy and the
type of protection the conspirators felt they needed to protect their
operation." Id. at 719 (quotations omitted). In contrast, defendant in
the instant case is charged only with two drug sales amounting to a total
of less than $200.
¶ 29. By lifting broadly worded pronouncements out of these federal
cases, without appreciation for the significant factual distinctions
involved here, I fear that the majority has adopted a per se rule that guns
are always relevant and sufficiently probative in drug sale cases. This
Court is ordinarily wary of adopting per se rules in criminal cases. See,
e.g., State v. Leggett, 167 Vt. 438, 444, 709 A.2d 491, 495 (1997)
(declining to adopt per se rule requiring reversal whenever hearsay
testimony is admitted without a finding of good cause to dispense with a
probationer's confrontation right); State v. Kirchoff , 156 Vt. 1, 8, 587 A.2d 988, 993 (1991) (rejecting per se approach to the privacy inquiry in
open-fields search and seizure cases under Article 11 ). For example, in
State v. Roy, 151 Vt. 17, 23, 557 A.2d 884, 888 (1989), we reviewed the
position taken by several of our peer jurisdictions that the omission of an
essential element of the offense from the charge to the jury is
automatically plain error warranting reversal. In rejecting this approach,
we stated our belief that "it would be bad policy to create a category of
errors which are plain per se." Id. It is equally bad policy to designate
a category of evidence-guns-as relevant per se in cases where a defendant
is charged with selling drugs-especially in Vermont where, as the majority
and trial court noted, gun ownership is a trait common to many people who
have nothing to do with the drug trade.
¶ 30. Relevance rulings are case-specific by their very nature, and
should remain so. I agree that there may be future drug cases where
evidence of a defendant's gun possession may be relevant and highly
probative of the issues involved, but this is not one. By adopting the
"tools of the trade" theory into our law in a case where defendant did not
possess the tools in question until a week after the crime was committed,
the majority creates a broad, generally-applicable presumption in favor of
relevance without regard to the remoteness issues that may arise in future
cases.
¶ 31. Curiously, the State has made no attempt to support the
"tools of the trade" rationale on appeal, omitting any mention of this
theory from its brief. Instead, it suggests alternative grounds for
admission of the gun evidence, urging this Court to affirm "even where the
trial court . . . reaches the right result for the wrong reason." See
State v. Willis, 145 Vt. 459, 477, 494 A.2d 108, 118 (1985) ("A trial court
may achieve the correct results for the wrong reasons."). Because I agree
with the State's apparent concession that the trial court erred in
admitting the guns as "tools of the trade," I have also considered whether
any other basis supports the trial court's evidentiary decision. After
reviewing the trial record, I conclude that the trial court's alternative
reasons for admitting the gun evidence were also based on legal errors, and
that probative weight assignable to the additional ground raised by the
State for the first time on appeal is overcome by the substantial potential
for prejudice and confusion of the issues that resulted from introduction
of the gun evidence. Accordingly, I cannot conclude that the court's
decision was harmless.
¶ 32. On appeal, the State argues two grounds for admission of the
guns: (1) that one of the guns was relevant to the attempting-to-elude
charge because it was in defendant's car at the time the police arrested
him, thus explaining his motivation in fleeing; and (2) that the gun found
in his closet was relevant to show that defendant, who admitted to owning
the gun, also owned the marijuana found nearby. The majority correctly
points out that the gun evidence was not relevant to the charge for
attempting to elude a police officer because it is a strict liability
offense for which no showing of intent is required, and furthermore, that
the jury lacked background information necessary to understand why the guns
would motivate defendant to flee. Ante, ¶ 10 n.1. Accordingly, the trial
court erred by assigning the gun evidence probative weight based on its
relevance to the attempting to elude charge. As to the State's new
argument, I agree with the majority and the State that one of the two guns
was relevant to, and probative of, the possession of marijuana charge. But
I cannot conclude that the trial court's Rule 403 analysis would still have
resulted in admission of the gun evidence if the only weight properly on
the scale had been its relevance to show possession of the marijuana. (FN4)
¶ 33. As the majority notes, defendant did not deny owning the gun
found in the closet with the marijuana. Thus, the gun tends to show that
defendant had access to and perhaps control over the closet where the
marijuana was found, making it more likely that the marijuana belonged to
defendant. The State could, however, have easily proved its case on this
charge without the gun evidence. The detective who discovered both the gun
and the marijuana while executing the search warrant for the home testified
that the closet could be accessed only through defendant's bedroom; that
the closet contained male clothing; and defendant was the only male living
in the home.
¶ 34. Despite these facts, the gun evidence was substantially more
prejudicial to defendant's case than it was probative of the issues germane
to the possession-of-marijuana charge. The trial court and the majority
frame the issue of gun ownership as a neutral factor that cannot be
considered, in and of itself, as prejudicial in a state like Vermont, where
many people own guns. But this approach flatly ignores the context of this
case. The references to the guns in the State's case-in-chief imply that,
once armed, defendant presented a danger to the community. The State first
mentioned the guns in its opening statement, saying that six days after the
second controlled drug buy, "[t]he Southern Vermont Drug Task force runs
into a problem. They find out that the Defendant has acquired two
firearms, and because of this, they decide to shut down this drug operation
and arrest the defendant." During direct examination of Detective
Gazzaniga, the guns were again mentioned in the same context, explaining
why the police moved to arrest defendant. The State covered the same
ground with Detective Barsi, who also testified that the decision to arrest
Lee was based, in part, on the fact that defendant had obtained two
firearms. Detective Barsi also testified about one of the guns, describing
it as a handgun, but noting that it "fires a much larger round than I would
normally anticipate from a handgun."
¶ 35. These repeated references to the guns unmistakably suggest
that defendant is a dangerous person, who police arrested at a specific
point in time out of fear that he might put the guns to illegal and violent
use. The context here is not neutral gun ownership for skeet shooting or
deer hunting. The jury would likely assign great credibility to this
testimony coming from experienced police officers. While I do not question
the validity of the officers' assessment of the situation or the propriety
of the actions they took in response, the admission of the evidence
powerfully prejudiced the jury against defendant by raising the specter
that he was preparing to commit a violent act.
¶ 36. Moreover, although one of the guns may be relevant to showing
ownership of the marijuana, the other neutral evidence cited above
accomplishes the same function as the gun evidence admitted over defense
objection. Accordingly, under Rule 403, the cumulative nature of this
highly prejudicial evidence must also be weighed against its probativeness.
The combination of prejudice and cumulativeness tips the 403 scales toward
the side of exclusion.
¶ 37. When viewed in light of defendant's sole hope of acquittal at
trial-the entrapment affirmative defense-the admission of the gun evidence
and its presentation by the State at trial cannot be considered harmless
error. The purpose of the entrapment affirmative defense, as recognized in
Vermont, is to "deter improper governmental activity in the enforcement of
the criminal laws." State v. Wilkins, 144 Vt. 22, 29, 473 A.2d 295, 298
(1983). Entrapment will be found where the inducement or persuasion
employed by the police is so great that even a hypothetical reasonable
person, i.e., one who is not otherwise ready to commit the criminal offense
charged, would succumb to such persuasion and commit the crime. Id. at 30,
473 A.2d at 299. The focus of the legal and factual entrapment inquiry is,
therefore, on the conduct of law enforcement in setting up the sting
operation that produced direct evidence of defendant's participation in the
two controlled drug buys. State v. George, 157 Vt. 580, 583-84, 602 A.2d 953, 955 (1991) (citing Sebesta v. State, 783 S.W.2d 811, 814 (Tex. Crim.
App. 1990) ("This is purely an objective test, and the trier of fact's
vision should focus solely upon the State's actions.")).
¶ 38. After using the gun evidence to suggest that defendant's
acquisition of firearms was a prelude to violence, thus necessitating
urgent police intervention, the State effectively distracted the jury from
considering the proper boundaries for law enforcement in drug-related
investigations. Defendant conceded that he was a drug user, and claimed
that he only made the sales at issue to placate the police informant, who
also happened to be the mother of defendant's girlfriend and the person
that was providing defendant with a place to live. Admission of the gun
evidence compromised the jury's ability to consider whether repeated
requests for drugs made by this informant, who had substantial influence
over vital aspects of defendant's life, amounted to improper police
inducement or coercion, i.e., entrapment.
¶ 39. Defendant's gun possession was remote in both time and place
from the drug counts at issue here, and, therefore, not relevant to them.
Under these circumstances, and in view of the prejudicial testimony that
resulted from the admission of the gun evidence, I would reverse and remand
for a new trial, holding that the trial court erred in admitting the gun
evidence in this case, and that such error was not harmless. I would
reverse defendant's drug sale convictions, and remand for a new trial on
those two counts. I am authorized to state that Justice Skoglund joins in
this dissent.
_________________________________
Associate Justice
------------------------------------------------------------------------------
Footnotes
FN1. We agree with the State that the gun found in the closet was
admissible to show defendant possessed the drugs also found in the closet.
The evidence discloses that defendant admitted to the police officer that
he owned the gun.
We cannot agree, however, that evidence of the gun found in the car
was relevant to show defendant's motive for fleeing from the police. The
jury members were not aware that defendant's possession of the gun was a
federal crime, and, as a result, they could not understand that defendant
would flee from the police to avoid being found with the gun. Moreover,
defendant was charged with attempting to elude a police officer, 23 V.S.A.
§ 1133, and this is a strict liability offense that does not contain an
element of intent. State v. Roy, 151 Vt. 17, 26-27, 557 A.2d 884, 890-91
(1989) Thus, we find that defendant's motive in fleeing from the police
was irrelevant to the offense.
FN2. The dissent characterizes this decision as a per se ruling that guns
are always relevant in a drug prosecution. Our holding is not so broad.
We simply affirm the trial court's assessment that in this case, given our
broad relevance standard, the evidence of the guns made it more probable
than not that defendant sold drugs. See V.R.E. 401.
The dissent also concludes that the guns had "infinitesimal probative
value," post, ¶ 24, because of the other evidence linking defendant to the
drug sales. This comparison is not the proper method for determining
relevancy because "[t]he test of relevancy is . . . not whether the
evidence makes the proposition for which it is offered more probable than
competing propositions, but rather whether the evidence has any tendency to
establish (or refute) the proposition." Reporter's Notes, V.R.E. 401. At
the time the court ruled on the motion in limine, defendant had not
admitted to the drug sales and thus the State was required to prove the
offenses with which he was charged including that defendant was engaged in
"knowingly and unlawfully selling cocaine," 18 V.S.A. § 4231(b)(1). As we
hold above, the gun evidence was relevant to the State's proof.
FN3. The dissent contends that defendant's acquisition of the guns was
irrelevant as a matter of law because it was so far removed in time from
the drug transactions. Although situations exist where acts are too remote
to be relevant, such is not the case here where defendant obtained the guns
within two weeks of the drug sales. See State v. Winter, 162 Vt. 388,
397-98, 648 A.2d 624, 629-30 (1994) (concluding prior act that occurred
four years previously too remote); Bradley v. Buck & Buck, 131 Vt. 368,
370-71, 306 A.2d 98, 100-01 (1973) (affirming exclusion based on remoteness
where over three years passed between events).
FN4. The majority complains that this dissent engages in its own Rule 403
balancing, implying that this is a usurpation of the trial court's
function. To some extent balancing in the appellate court is unavoidable
when the trial court factors errors of law into its Rule 403 balancing.
The majority and the dissent agree that the trial court erred by finding
evidence of the gun in the car relevant to and probative of the
attempting-to-elude charge. The transcript shows that the trial court
factored this error into its Rule 403 balancing. Thus, in reviewing the
trial court's decision, both the majority and the dissent have to reassess
the balancing, taking into account the error. The majority and dissent
disagree on the question of whether the trial court incorporated a second
error of law into its balancing by concluding that the gun evidence was
both relevant to and probative of the question of whether defendant "was
involved in these [drug] transactions." Accordingly, the dissent and
majority reach different conclusions after conducting our own respective
reassessments; this is a difference in result, not process.
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