Opinion
No. 76-815
Decided March 1, 1979.
Convicted by a jury of the sale of narcotic drugs, defendant appealed.
Reversed
1. CRIMINAL LAW — Testimony — Other Offenses — General and Indefinite — Inadmissible. Where witness was permitted to testify that he had purchased heroin from narcotics defendant "say, around five times, something like that," but was unable to specify the dates or specific location of such purchases, that testimony concerning alleged other offenses was so general and indefinite that it was inadmissible to prove continuing plan, scheme, design, identify, or intent, and thus trial court erred in allowing jury to consider it.
Appeal from the District Court of the City and County of Denver, Honorable James C. Flanigan, Judge.
J. D. MacFarlane, Attorney General, David W. Robbins, Deputy Attorney General, Edward G. Donovan, Special Assistant Attorney General, Linda Palmieri Rigsby, Assistant Attorney General, for plaintiff-appellee.
J. Gregory Walta, Colorado State Public Defender, Ilene P. Buchalter, Deputy State Public Defender, for defendant-appellant.
Defendant, Jacqueline E. McNeal, appeals her jury conviction of sale of narcotic drugs (§ 12-22-302, C.R.S. 1973 (now in 1978 Repl. Vol. 5)). We reverse.
The prosecution's case was based primarily on the testimony of John E. Jones, a police informer working with agent I. H. Allen of the Drug Enforcement Administration. Jones testified that he arranged for agent Allen to purchase some heroin from defendant, and that on February 19, 1975, defendant and Jones met Allen in a parking lot where the sale was consummated.
Defense counsel objected to the district attorney's offer of proof relating to other sales of heroin by defendant to Jones. After a hearing, the trial court overruled the objections, and Jones was allowed to testify that between July 1974 and February 1975 he had purchased heroin from defendant, "say, around, five times, something like that." He was unable to specify any dates, and could testify only that the transactions "probably" took place in the Five Points area. On cross-examination, he testified that he could not remember whether he actually had five prior drug transactions with defendant, but that he had at least one.
Pursuant to Stull v. People, 140 Colo. 278, 344 P.2d 455 (1959), the trial court gave the jury a limiting instruction in connection with this evidence.
As a preliminary matter, we reject defendant's argument that a mistrial should have been granted because of pre-arrest delay. Several factors must be considered by the trial court in deciding whether due process has been denied by a delay in bringing charges, including whether the delay was intentional, whether defense witnesses have become unavailable by reason of delay, and the kind of evidence and the quantum available to prove the prosecution's case. People ex rel. Coca v. District Court, 187 Colo. 280, 530 P.2d 958 (1975); People v. Orr, 39 Colo. App. 289, 566 P.2d 1361 (1977). After reviewing this record with these factors in mind, we will not disturb the trial court's conclusion that a mistrial was unwarranted. See People v. Knapp, 180 Colo. 280, 505 P.2d 7 (1973).
[1] However, we agree with defendant that the trial court erred when it permitted Jones to testify about the prior drug transactions. Evidence of a defendant's other criminal acts is inadmissible to prove the offense for which he is on trial. People v. Ihme, 187 Colo. 48, 528 P.2d 380 (1974); Bell v. People, 158 Colo. 146, 406 P.2d 681 (1965). There are a number of exceptions to this rule, but none of them apply here.
Jones' testimony regarding the earlier transactions was so general and indefinite that it was inadmissible to prove a continuing plan, scheme, or design. Cf. People v. Plotner, 188 Colo. 297, 534 P.2d 791 (1975); People v. Bucher, 182 Colo. 211, 511 P.2d 895 (1973). For the same reason, it was inadmissible to prove intent. See United States v. Powell, 587 F.2d 443 (9th Cir. 1978); United States v. Burkhart, 458 F.2d 201 (10th Cir. 1972).
The effect of Jones' testimony could only have been to show that defendant had a propensity to engage in the criminal conduct charged. The probative value of such an inference is outweighed by its prejudice to the defendant, and the trial court erred in permitting the jury to entertain it.
The judgment is reversed and the cause remanded for a new trial.
JUDGE COYTE and JUDGE KELLY concur.