People v. Davis

Citations

• 2017 COA 40
• 415 P.3d 838
• 2017 WL 1279704
• 2017 Colo. App. LEXIS 391

Syllabus

Wiretapping—Conspiracy—Habitual Criminal—Unanimity Instruction—Single Transaction—Limiting Instruction—Prior Conviction—Jury. After an investigation that entailed wiretapping, the People charged defendant 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. 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 or not giving the jury a special, modified unanimity instruction regarding the overt act. 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 (one that tells the jury that it must agree unanimously as to the act proving each element) need not be given. A defendant can participate in a number of crimes or events to accomplish a single conspiracy. The Colorado Supreme Court has indicated that the following factors tend to show a single criminal episode: the alleged acts occurred during the same period, the type of overt act alleged is the same, the unlawful objective of the conspiracy is the same, and the same evidence would be relevant to the charges. 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. 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 prec