October 17, 2017

Colorado Court of Appeals: No Error in Failing to Specify Which Act Furthered Conspiracy

The Colorado Court of Appeals issued its opinion in People v. Davis on Thursday, May 4, 2017.

Wiretapping—Conspiracy—Habitual Criminal—Unanimity Instruction—Single Transaction—Limiting Instruction—Prior Conviction—Jury.

After an investigation that entailed wiretapping defendant’s telephones, defendant was charged with one count of conspiracy to distribute a schedule II controlled substance (methamphetamine) and several habitual criminal counts. A jury convicted defendant of the conspiracy charge, and the district court, after finding that defendant was a habitual criminal, sentenced him to 48 years in the custody of the Department of Corrections.

On appeal, defendant contended that the district court erred in not requiring the prosecution to elect the overt act on which it was relying to prove the conspiracy charge. When the People charge a defendant with crimes occurring in a single transaction, they do not have to elect among the acts that constitute the crime, and a special unanimity instruction need not be given. A defendant can participate in a number of crimes or events to accomplish a single conspiracy. Here, the actions occurred in a relatively short time frame, evidence of defendant’s phone conversations with one person primarily established the conspiracy, and all the overt acts on which the jury could have relied were done in furtherance of the same unlawful objective. Therefore, the evidence presented in this case showed one criminal episode, and hence one conspiracy. Further, though the prosecution alleged numerous overt acts in furtherance of the single conspiracy, that did not require unanimous agreement by the jurors as to the precise overt act defendant committed. Therefore, the district court did not err, much less plainly err, in failing to require an election or to give the jury a special unanimity instruction.

Defendant also contended that the district court erred in not providing a limiting instruction to preclude the jury from considering witnesses’ guilty pleas or desires to plead guilty as evidence of his guilt. Here, defendant did not request a limiting instruction, and a trial court’s failure to give a limiting instruction sua sponte does not constitute plain error.

Lastly, defendant contended that his rights to a trial by a jury and to due process of law were violated when the judge, instead of a jury, found that he had been convicted of three prior felonies. The fact of a prior conviction is expressly excepted from the jury trial requirement for aggravated sentencing. Therefore, there was no error.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

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