Colon v. State

938 P.2d 714, 113 Nev. 484, 1997 Nev. LEXIS 56

• Court: Nevada Supreme Court
• Decided: April 24, 1997
• Docket: 26617
• Status: Published

Opinions

OPINION

By the Court,

Rose, J.:

The State charged Michelle Colon (Colon) with selling methamphetamine to narcotics investigator Robert Meyers (Meyers) on two occasions. In both transactions, Meyers requested the drugs, Colon took the money from Meyers, procured the drugs from her source, and gave the drugs to Meyers. Colon asserted the procuring agent defense and claimed that she received none of the drugs or money from the transactions. However, because the State established that on each occasion Colon took and apparently used a portion of the methamphetamine, the jury was at liberty to then reject the procuring agent defense. We affirm the two drug sales convictions because there was evidence to establish that Colon was not acting solely for Meyers, the recipient, in these transactions.

FACTS

Meyers was a narcotics investigator for the Nevada Division of Investigations. He was not a drug recognition expert, but was familiar with recognizing persons under the influence of narcotics. An informant introduced Meyers to Colon at Colon’s apartment in Carson City on July 22, 1993. Also present at the apartment was Colon’s boyfriend, Jim. The informant asked Colon to obtain for Meyers a sixteenth of an ounce of methamphetamine for $100. Colon agreed and tried unsuccessfully to contact a source by telephone. Meyers then drove Colon and the informant to the Indian Hills area to obtain the drug. Colon told Meyers that she had recently bailed her source out of jail after he had been arrested for possession of methamphetamine. She had been dealing with this source for some time. In looking for the source, Colon had Meyers drive to a house where she said a quantity of marijuana was being grown indoors. Meyers testified that police later arrested the owner of the house.

Colon finally located her source, who told her to meet him alone at a grocery store. As Meyers drove Colon to the grocery store, they saw Jim walking, and Colon said that she had sent him to get some marijuana for some other people. According to Meyers, Jim “was walking right towards the location where the marijuana grow was.” When Meyers dropped Colon off at the store, Colon said that she wanted a pinch of the methamphetamine.¹ When he indicated some reluctance, she said that if she did not get a pinch, she would not get the drug for him. Meyers told her to do what she had to do and gave her $100. He estimated that a sixteenth ounce of methamphetamine was selling for $80 to $100 at that time. Meyers left the grocery store and picked Colon up a little later. She produced some methamphetamine and said, “ ‘Killer, this is killer. Smell it.’ ” It appeared to Meyers from a change in Colon’s demeanor that she had ingested some of the methamphetamine; she seemed happier, more active, and more talkative. He also thought she had used some because the amount she gave him appeared to be quite a bit less than a sixteenth ounce. She asked for another pinch, but he said that it was short already and that maybe she could have more another time if he made a larger purchase. Colon told Meyers that if he wanted more methamphetamine, her source could bring it to her apartment that afternoon.

Meyers went to Colon’s apartment again in mid-August of 1993 and tried to get more information about the indoor marijuana in Indian Hills. Another man was present at that time, and Meyers testified he wanted to obtain a half ounce of marijuana. Defense counsel objected on the grounds that the testimony was hearsay and irrelevant character evidence. The district court ruled that no hearsay had been presented and that the evidence was admissible under NRS 48.045(2), which permits evidence of other bad acts to show intent, preparation, and proof of a motive. Meyers testified that the man who was present left to use a pay phone to try to locate some marijuana. Colon then asked Meyers if he wanted to buy more methamphetamine. He said maybe later. Meyers left and was to return later that day to give Colon and the man a ride downtown, but Meyers’s supervisor did not allow him to return out of a concern for safety.

Meyers went to Colon’s apartment again on August 31, 1993, and asked about buying an eighth ounce of methamphetamine, an “eight-ball.” Meyers testified that an eighth ounce would be about seven grams and that the weight actually purchased is nearly always slightly lighter. Colon said an eighth ounce would cost $200. Also present at the apartment were Jim, Colon’s sister, and two other men, Sam and Mike. Meyers returned later, and it appeared to him that the people in the apartment had just ingested methamphetamine; Colon was much more hyper than before. Jim told Meyers that the eight-ball would cost $225, and Meyers agreed and gave Colon $240. He did not expect to get change. Colon left with Sam and did not return for quite some time. After they returned, she took Meyers to a bedroom and handed him some methamphetamine. Meyers became upset because it was well short of an eight-ball. When he asked if Colon had taken half of it, she got angry and left the room. Meyers asked Sam if they had used half of it, and Sam said, “Yes.” Jim then came in and told Meyers that he would make it right and that Meyers should deal with him from that point on. Meyers did not get any of the $240 back.

Meyers returned to Colon’s apartment in September but was not able to buy any drugs from her. She was later arrested and charged with two felony counts of selling a controlled substance.

On cross-examination of Meyers at the trial, defense counsel established that an eighth of an ounce weighs about three and a half grams, not seven. Meyers also explained that the amount of drugs purchased from street dealers was often less than the agreed upon amount because the dealer often takes some of the drugs for personal use before handing them to the buyer. Meyers admitted that the authorities had never arrested Colon’s source or sources for the methamphetamine and had never ascertained that Colon had kept any of the purchase money provided to her by Meyers.

On redirect examination, the prosecutor asked why Meyers had agreed to some extent with defense counsel that the investigation had failed. Meyers responded that

as far as “failed,” our goal is to start as high as we can and go up. If we have to start on the bottom — what we want to do is go up, meaning that we would arrest Ms. Colon and give her the opportunity to tell us her source, and take me or another undercover agent back to this source.

Q [PROSECUTOR] In fact, you guys did that, didn’t you?

[DEFENSE COUNSEL]: Objection. I didn’t open the door to post-arrest or post-incarceration investigations. It hasn’t been asked, and it’s not relevant.

After a discussion sidebar, the prosecutor continued:

Q Investigator Meyers, let me ask the question again: In fact, you, “you” meaning the Tri-Net Task Force, gave Ms. Colon the opportunity to cooperate, did you not?

A My understanding — I was not present, but my understanding was—

[DEFENSE COUNSEL]: Objection. There’s no foundation as to him being present. It’s not relevant.

THE COURT: If he has no personal knowledge because of participation, then I am sustaining the objection.

[PROSECUTOR] Who at the task force was involved in dealing with Michelle?

A I believe Investigator Heinrich, possibly Investigator VanDalinda. Investigator Heinrich was. Investigator Howell was for sure. Supervisor Milby was, I’m sure.

Q You do have knowledge then that there was follow-up, is what I’m getting at, done with Michelle to try and get to her source; is that correct?

A That was my understanding, yes.

Colon did not appear for the second and final day of trial; no comment regarding her absence was made to the jury before it rendered a verdict. Defense counsel did not object to any of the jury instructions or offer any additional instructions.

In closing argument, the prosecutor asserted: “If we couldn’t get to her source, the fault lies somewhere besides with the State . . . .’’He argued that “there is no other evidence in this case but that Michelle Colon sold these drugs to Investigator Meyers” and that defense counsel “accepted Mr. Meyers’s assertions about what Ms. Colon had said about the sequence of events, about the drug transactions and the agreements and amounts. All of those things were accepted. They were uncontroverted.”

In his closing argument, defense counsel stressed to the jury that the investigation “did not result in the arrest or conviction of any of the people that were selling the drugs, but resulted in the arrest of Michelle Colon, and in that regard, Michelle Colon is left holding the bag . . . .’’He argued that Colon had procured and possessed the drugs but was not guilty of selling them.

In final closing argument, the prosecutor said:

Are there facts which establish beyond a reasonable doubt that she sold drugs to Investigator Meyers? Yes. Why?

She’s an out-of-work addict. She’s a person who needs to support her habit, her use. How else is she going to do it, ladies and gentlemen? Where’s the money going to come from?

He also stated: “She never denied using the methamphetamine on either occasion.”

Jury instructions placed the burden on the State to prove beyond a reasonable doubt that Colon was not a procuring agent. The jury found Colon guilty of two counts of sales of a controlled substance. The district court sentenced her to two consecutive six-year prison terms.²

DISCUSSION

Whether the evidence was insufficient to prove that Colon was a seller, rather than procuring agent, of the drugs

In the case of Roy v. State, 87 Nev. 517, 489 P.2d 1158 (1971), we established the procuring agent defense when we held that it is fundamental that a person cannot be found guilty of being a seller of narcotics when he or she has not acted for the supplier, but rather, solely for the recipient. Id. at 519, 489 P.2d at 1159. In several cases we have reaffirmed this defense. See Dent v. State, 112 Nev. 1365, 929 P.2d 891 (1996); Love v. State, 111 Nev. 545, 893 P.2d 376 (1995); Paul Andre B., A Minor v. State, 108 Nev. 368, 830 P.2d 1344 (1992). In Love, we further explained the applicability of this defense:

Since Roy, we have established that the procuring agent defense in a prosecution for a sale of a controlled substance can be maintained only if the defendant was merely a conduit for the purchase and in no way benefited from the transaction. Thus, if a defendant receives part of the controlled substance involved in the transaction for his own use or any amount of money in consideration for the transaction, the defense of procuring agency is not available.

Love, 111 Nev. at 548, 893 P.2d at 378. Therefore, we must examine the record to determine if there was any evidence to show that Colon received part of the controlled substance for her own use or any money from the transactions.

Meyers testified that on July 22, 1993, before obtaining methamphetamine from her source, Colon demanded that she get a pinch of it. She stated that if she did not get a pinch, she would not procure the drug. Meyers also testified to a change in Colon’s demeanor after she obtained the drug, which was consistent with her having used it. Finally, the amount of the drug was appreciably less than he had bargained for, and according to Meyers this was consistent with a street dealer taking some for personal use. Meyers testified that on August 31, 1993, he again received much less methamphetamine from Colon than he had paid her to obtain. When he confronted her and Sam, the man who helped her obtain the drug, with the apparently missing methamphetamine, Sam admitted that he and Colon had used some of it. Defense counsel did not object to evidence of Sam’s out-of-court statement, and it was admissible against Colon as her coconspirator’s statement, pursuant to NRS 51.035(3)(e).³

Meyers paid $240 and received no change in return, even though the price quoted was $225. It was reasonable for the jury to conclude that Colon and her colleagues retained this overpayment. Furthermore, the procuring agent defense does not apply when the defendant obtains drugs from a person with whom the defendant is associated in selling drugs. Hillis v. State, 103 Nev. 531, 536, 746 P.2d 1092, 1095 (1987). The State presented sufficient evidence that Colon was associated with the supplier in selling drugs in the first transaction.

The dissent claims that Colon was entrapped into selling drugs to Meyers. The defense of entrapment requires that the state lure someone into committing a crime he or she had no predisposition to commit. Hill v. State, 95 Nev. 327, 594 P.2d 699 (1979). However, evidence of a predisposition to sell a controlled substance will negate the entrapment defense. Paul Andre B., 108 Nev. at 371, 830 P.2d at 1346. There was abundant evidence to show Colon’s predisposition to sell, and this is probably why she did not raise the entrapment defense at trial.

The record supports a finding that Colon sold, not merely procured, the drugs in question and that the jury had ample evidence to reject the procuring agent defense.

Whether evidence was improperly admitted

Colon claims that most of the evidence and argument presented by the State at trial was intended solely to impugn her character. Colon’s counsel did not object to most of the testimony and argument now challenged, and this court will only address the claimed errors if they rise to the level of plain error. Sterling v. State, 108 Nev. 391, 394, 834 P.2d 400, 402 (1992). Admission of evidence is within the trial court’s sound discretion; this court will respect the trial court’s determination as long as it is not manifestly wrong. Petrocelli v. State, 101 Nev. 46, 52, 692 P.2d 503, 508 (1985). We must examine the evidence and arguments complained of to see if they amounted to plain error.

At several points in the trial, the State elicited testimony regarding a house in Indian Hills where marijuana was being grown. Defense counsel objected only once, and the objection apparently regarded Meyers’s conversation with another man regarding a possible marijuana buy, not Meyers’s reference to the indoor marijuana. The admission of this evidence was not plain or prejudicial error. Colon’s knowledge of the marijuana was arguably relevant to proving her role as a seller of drugs. The indoor marijuana was relevant to explain why Meyers approached Colon in mid-August seeking information on marijuana and to show that Colon brought up the subject of a methamphetamine sale without prompting by Meyers. The district court also thought NRS 48.045(2) permitted the receipt of these facts into evidence. The admission of this evidence was not plain error.

Colon also argues that testimony regarding the attempted marijuana buy with the man at Colon’s apartment was irrelevant to her case and was used simply to prejudice her by showing that her friends engaged in drug deals. She argues that the prejudice was worsened by reference to the “safety concerns” which prompted Meyers not to return and drive the man downtown. However, this evidence was relevant to the procuring agent issue because it showed that Colon on her own brought up a possible methamphetamine sale. See Hill, 95 Nev. at 330, 594 P.2d at 701 (holding that evidence that defendant previously supplied marijuana rebutted procuring agent defense).

Colon claims that the only reason the State introduced evidence that she bailed a person arrested for drug possession out of jail was to show her bad character. However, the State showed that this person was Colon’s supplier for the first drug transaction. The evidence was therefore relevant to show that Colon was not simply a procuring agent, but obtained the drugs from a person with whom she was associated in selling drugs. See Hillis, 103 Nev. at 536, 746 P.2d at 1095.

Colon contends that the prosecutor also erred by introducing the evidence discussed above without seeking a ruling under Petrocelli v. State, 101 Nev. 46, 692 P.2d 503 (1985). However, this evidence was clearly admissible because the State was required to disprove the procuring agency and that Colon had a predisposition to sell controlled substances. See Love v. State, 111 Nev. 545, 551, 893 P.2d 376, 379 (1995); Paul Andre B., A Minor v. State, 108 Nev. 368, 371, 830 P.2d 1344, 1346 (1992). A Petrocelli hearing was not required, and the prosecutor’s comments on this evidence in closing argument were not error.

Whether the prosecutor improperly elicited evidence of and commented on Colon’s election to remain silent

Colon contends that the State improperly commented on her right to remain silent by presenting evidence that she did not cooperate with police after she was arrested and by arguing that her defense counsel had accepted Meyers’s uncontroverted assertions.

Over objections by defense counsel, one of which was clearly sustained, the prosecutor in this case elicited testimony from Meyers to the effect that after arresting Colon, police had attempted without success to get her to cooperate and divulge the identity of her source for methamphetamine. Defense counsel did not object to the following remarks made during closing argument. The prosecutor argued: “If we couldn’t get to her source, the fault lies somewhere besides with the State . . . .’’He also argued that “there is no other evidence in this case” but that Colon sold the methamphetamine and that defense counsel “accepted” Meyers’s assertions and that they were “uncon-troverted.” Finally, the prosecutor stated: “She never denied using the methamphetamine on either occasion.”

The prosecution is forbidden to comment at trial upon a defendant’s election to remain silent after being arrested. Morris v. State, 112 Nev. 260, 264, 913 P.2d 1264, 1267 (1996). Such comment is harmless beyond a reasonable doubt and does not require reversal if the prosecution made only passing reference to the defendant’s post-arrest silence or if there is overwhelming evidence of guilt. Id. at 264, 913 P.2d at 1267-68.

The State argues that defense counsel opened the door to evidence of and comment on Colon’s failure to cooperate by raising the issue of the State’s failure to prosecute the person who supplied Colon with methamphetamine. While reference to her refusal to cooperate with police may have prejudiced her in the eyes of the jurors and made them less likely to give her the benefit of any doubt in regard to the selling charges, it was her counsel who raised the issue. It was not reversible error to admit such evidence in these circumstances.

In addition, the prosecutor went further during closing argument and argued that the defense had accepted Meyers’s assertions and that those assertions remained uncontroverted. Colon argues that this was a clear reference to her failure to testify. However, it could also be a reference to Colon’s refusal to answer when asked by Meyers if she had used some of the drug. The State’s informant was present at the first transaction, and two of Colon’s acquaintances were present at the second transaction. The prosecutor’s reference to uncontradicted evidence did not necessarily implicate only Colon’s failure to testify, especially if Colon declined to subpoena these people. Even if the comments were understood to be referring to Colon, they were indirect references; overwhelming evidence of Colon’s involvement in the drug transactions was presented, and Colon’s testimony was not in issue since she did not testify. As such, reversal because of these comments is not warranted. See McCraney v. State, 110 Nev. 250, 256, 871 P.2d 922, 926 (1994).

CONCLUSION

The evidence showed that Colon used a portion of the drugs she obtained for the narcotics investigator; therefore, she benefited from the transactions and did not act merely as a procuring agent. The State had the burden of proving the drug sales and disproving the agency defense beyond a reasonable doubt. The evidence that Colon knew of growing marijuana, that she bailed a man arrested for drug possession out of jail, and that a man at her apartment tried to obtain some drugs was admissible evidence necessary for the State to establish its case; it was neither irrelevant character evidence nor evidence of collateral offenses requiring a Petrocelli hearing before its admission. If any error was made by the prosecutor in commenting on the failure to refute certain evidence, it was harmless beyond a reasonable doubt.⁴

Shearing, C. J., and Young, J., concur.

1 This case involves the purchase and use of methamphetamine, a very dangerous and addictive illegal drug which the dissent has categorized with astonishing naivete as an “unprescribed mood-elevator.” While elevation of mood is one effect of methamphetamine use, other effects are confusion, depression, inability to sleep, convulsions, delusions, hallucinations, and delirium. These symptoms may resemble those of paranoid schizophrenia. 3B Roscoe N. Gray, M.D. & Louise J. Gordy, M.D., LL.B., Attorneys’ Textbook of Medicine § 103.13(5) (3d ed. 1993). The state Board of Pharmacy has recognized the dangerousness of methamphetamine and has classified the drug as a Schedule II narcotic. NAC 453.520. Schedule II drugs have a high potential for abuse, which may lead to severe psychological or physical dependence. NRS 453.176.

2 The dissenting opinion states that this court is going in an unenlightened and socially counterproductive direction by affirming Colon’s conviction, the effect of which is that Colon will have to serve twelve years in jail. Setting aside the concerns voiced in the dissenting opinion, we note that it is the function of the Legislature, not this court, to implement social policy and changes in the way drug users are punished. Our function is to enforce the law as made by the Legislature when that law is clear and unambiguous, which we have done in this instance.

3 NRS 51.035(3)(e) provides that a statement is not hearsay if it is offered against a party and is made “by a coconspirator of a party during the course and in furtherance of the conspiracy.”

4 The Honorable A. William Maupin, Justice, did not participate in the decision of this matter.