July 16, 2019

Colorado Court of Appeals: Other Bad Act Evidence Admissible to Show Knowledge But Conviction Reversed on Fourth Amendment Grounds

The Colorado Court of Appeals issued its opinion in People v. Pollard on Thursday, March 14, 2013.

Possession of More Than One Gram of Cocaine—Habitual Offender for Sentencing—Other Bad Acts Evidence—Fourth Amendment Refusal to Consent to Search.

Defendant appealed the judgment of conviction entered on a jury verdict finding him guilty of possession of more than one gram of cocaine. He also appealed his adjudication as a habitual offender, for sentencing purposes. The judgment was reversed and the case was remanded for a new trial.

The police spotted defendant’s unoccupied car at 3:00 a.m. in an otherwise vacant parking lot in a park. An officer, looking inside the car, noticed on the center console a plastic bag he believed to be crack cocaine. When defendant returned to his vehicle with a female friend, he told the police that the car was his and the substance was probably bubble gum.

Defendant refused to give the police consent to search his car. He was arrested, and the bag—containing 2.66 grams of cocaine—was seized from the vehicle. Drug paraphernalia (a crack pipe, a glass vial, and two re-sealable cloth bags) were found only in his female friend’s purse.

At trial, defendant asserted the cocaine belonged to his friend and that he did not know it was in his car. The friend testified that the cocaine belonged to her, she had brought it with her in her purse, defendant didn’t know she had it, and she had put it on the car console only after defendant had gotten out of the car. Defendant argued he was charged and prosecuted due to racial stereotyping—that because he is black and his friend is a white woman, he was using the cocaine to obtain sex from her.

For purposes of showing motive, knowledge, identity and absence of mistake or accident, the prosecution presented evidence of a drug transaction that occurred fourteen months after the charges arose in this case. In that case, defendant sold crack cocaine to a woman in a grocery store parking lot. He was apprehended shortly thereafter and crack cocaine was recovered from the center console of his car.

The jury convicted defendant as charged. The trial court adjudicated him as a habitual offender and sentenced him to twenty-four years’ incarceration.

On appeal, defendant argued it was error to admit evidence of his subsequent drug transaction with the woman in the grocery store parking lot. The Court of Appeals disagreed. Defendant objected that the evidence was inadmissible under CRE 404(b). An abuse of discretion by a trial court will be found only on a showing that the court misconstrued or misapplied the law or otherwise reached a manifestly arbitrary, unreasonable, or unfair result. Evidence of other bad acts is inadmissible if its relevance depends only on an inference that the person has a bad character and acted in conformity therewith. Under CRE 410, 403, and 404(b), a trial court may admit evidence of a defendant’s other bad acts if (1) the evidence is offered for a proper purpose; (2) the evidence is logically relevant to a material issue in the case; (3) its relevance is independent of the intermediate inference that the defendant has a bad character; and (4) its probative value is not substantially outweighed by the danger of unfair prejudice. The Court concluded that the trial court acted within the scope of its discretion in admitting evidence of defendant’s subsequent possession and distribution of crack cocaine, particularly for the purpose of establishing his knowing possession in this case.

Defendant also argued that reversal was required because the prosecution improperly elicited evidence of, and commented on, his refusal to consent to a search of his car. The Court agreed. The prosecution repeatedly elicited evidence from the officer on the scene that when asked to consent to search of his car, defendant responded by saying, “Nobody searches my car.” Because defendant did not object to this and related statements, reversal was warranted only if it constituted plain error. The Court found it did. The Fourth Amendment gives a defendant a constitutional right to refuse to consent to entry and search. Evidence of a person’s refusal to consent to a warrantless search may not be used to support an inference of guilt. It is even more egregious to argue to the jury that such evidence is probative of guilt. The error in admitting this type of evidence in this case was so clear cut that the trial judge should have been able to avoid it without benefit of objection. Moreover, this was a substantial error because it was seriously prejudicial. Accordingly, the Court reversed defendant’s conviction and the case was remanded for a new trial.

Summary and full case available here.

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