137 P.3d 136 (Wyo. 2006), 05-129, Bolin v. State

Docket Nº:05-129.
Citation:137 P.3d 136, 2006 WY 77
Opinion Judge:KITE, Justice.
Party Name:Jesse Dan BOLIN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
Attorney:Representing Appellant: Diane E. Courselle, Director DAP; Joseph J. Petrone, Student Director. Argument by Mr. Petrone., Representing Appellee: Patrick J. Crank, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Matthew D. Obrecht, ...
Case Date:June 29, 2006
Court:Supreme Court of Wyoming
 
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Page 136

137 P.3d 136 (Wyo. 2006)

2006 WY 77

Jesse Dan BOLIN, Appellant (Defendant),

v.

The STATE of Wyoming, Appellee (Plaintiff).

No. 05-129.

Supreme Court of Wyoming

June 29, 2006

Page 137

[Copyrighted Material Omitted]

Page 138

Representing Appellant: Diane E. Courselle, Director DAP; Joseph J. Petrone, Student Director. Argument by Mr. Petrone.

Representing Appellee: Patrick J. Crank, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Matthew D. Obrecht, Student Intern. Argument by Mr. Obrecht.

Before HILL, C.J., and GOLDEN, KITE, VOIGT, and BURKE, JJ.

KITE, Justice.

[¶ 1] Jesse Dan Bolin was convicted by a jury of two counts of delivery of marijuana in violation of Wyo. Stat. Ann. § 35-7-1031(a)(ii) (LexisNexis 2005). He appeals claiming plain error occurred when the district court allowed expert testimony from a police detective concerning what is usually done in drug investigations rather than what was actually done in this investigation and the confidential informant's credibility. He also asserts the district court erred in allowing him to appear pro se during sentencing without first ensuring he voluntarily waived his right to counsel. We conclude no error occurred and affirm the conviction.

ISSUES

[¶ 2] Mr. Bolin presents the following issues for our review:

I. Plain error occurred when the district court permitted irrelevant expert testimony concerning evidence of what is usually done in drug investigations rather that what actually was done in this case; permitted testimony explaining procedures in methamphetamine and crack cocaine investigations not related to the present marijuana case; and permitted detective Harper to vouch for the confidential informant's credibility.

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II. The district court erred by allowing the defendant to proceed pro se during sentencing without first ensuring that his waiver of counsel was made voluntarily.

The State re-phrases the issues as follows:

I. Whether plain error occurred when detectives testified to standard department procedure related to the use of a confidential informant to make a controlled buy from a suspected narcotics dealer, and mentioned other illegal narcotics in addition to marijuana.

II. Whether plain error occurred when detective Harper testified concerning the procedure used to ensure that the confidential informant in this case provided the Cheyenne Police Department with reliable information during the controlled buys.

III. Whether the district court erred by allowing appellant to proceed pro se at his sentencing hearing.

FACTS

[¶ 3] On March 8, 2004, the Laramie County District Attorney's Office issued an information alleging Mr. Bolin delivered marijuana in violation of § 35-7-1031(a)(ii) on February 2, 9 and 20, 2004, and possessed marijuana with intent to deliver in violation of Wyo. Stat. Ann. § 35-7-1014(d)(xiii) (LexisNexis 2005) on February 23, 2004. The affidavit of probable cause issued with the information alleged a confidential informant told the Cheyenne Police Department where Mr. Bolin resided, what kind of vehicle he drove and that he was selling marijuana. The affidavit further alleged detectives decided to attempt a controlled buy from him after confirming Mr. Bolin lived at the address identified.

[¶ 4] The affidavit further alleged the details of the controlled buy. Detectives had the confidential informant place a recorded phone call to Mr. Bolin to make arrangements to purchase marijuana. They provided the informant with money for the purchase, fitted him with a wireless transmitter, and kept him under surveillance as he proceeded to the meeting spot with Mr. Bolin. During the encounter, detectives heard the informant count out $25.00 to Mr. Bolin. After the encounter, the informant turned over approximately ten grams of marijuana to detectives.

[¶ 5] The affidavit further alleged detectives and the confidential informant followed substantially the same process on February 9 and 20, 2004. The only material differences on those dates were the purchases occurred at Mr. Bolin's residence and the informant purchased one-half ounce of marijuana. On February 23, 2004, detectives arrested Mr. Bolin at his residence and charged him with three counts of delivery and one count of possession of marijuana.

[¶ 6] Pursuant to a motion filed by the district attorney's office, the district court dismissed the possession count prior to trial. 1 The remaining three counts of delivery of marijuana were tried to a jury on November 8 and 9, 2004. The State presented the testimony of three detectives and the confidential informant who described the events surrounding each of the drug transactions. At the close of the State's case, the defense moved for an acquittal, arguing the State had not proven its case because the only witness actually involved in the purchases, the confidential informant, was unreliable. The district court denied the motion on the grounds that determining witness credibility was a jury function. After the denial of its motion, the defense rested, presenting no witnesses of its own. The jury returned a verdict finding Mr. Bolin guilty on the first two counts of delivery of marijuana and not guilty on the third count. 2 Mr. Bolin was sentenced

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to consecutive terms of two to four years in the Wyoming State Penitentiary.

STANDARD OF REVIEW

[¶ 7] The defense did not object at trial to the expert testimony about which Mr. Bolin now complains in his first two issues. When no objection is made, the plain error standard applies. Plain error occurs when: 1) the incidents alleged as error clearly appear in the record; 2) the party claiming plain error demonstrates that a clear and unequivocal rule of law was violated; and 3) the party demonstrates he has been denied a substantial right resulting in material prejudice. Farmer v. State, 2005 WY 162, ¶ 26, 124 P.3d 699, 709 (Wyo.2005). Because of the constitutional implications present when a defendant is forced to appear pro se after refusing, either explicitly or implicitly, to accept the services of appointed counsel, we conduct a de novo review of Mr. Bolin's third claim. Trujillo v. State, 2 P.3d 567, 571 (Wyo.2000). 3

DISCUSSION

1. Plain Error

a. Expert Testimony Concerning Drug Investigations

[¶ 8] Mr. Bolin contends plain error occurred when detectives testified about the procedures generally followed by the Cheyenne Police Department when conducting drug investigations using a confidential informant but not about the procedures they followed in this drug investigation with this confidential informant. He also claims plain error occurred when the detectives testified concerning drug investigations involving methamphetamine and crack cocaine in addition to marijuana. The State argues no plain error occurred.

[¶ 9] In support of his claim of plain error in the testimony concerning general rather than specific investigative procedures, Mr. Bolin cites the following excerpt from Detective James Harper's trial testimony:

Q. You mentioned something about searching a car. What's that all about?

A. Well, if the informant is going to drive to a meet, we want to search the car. Basically, the only thing--we want to show that the only thing that the informant--only place he could have gotten drugs was from the dealer. So he can't have any drugs in his car. So we go on and search it.

Q. How was that done?

A. Well, everybody does it just a little bit differently. I usually start in the front seat, look over the visors, look on the dash, look in the ashtray, pull out the ashtray, look behind the ashtray. I--same thing with the glove box, look underneath the dash, any parts in the console, look in the console, see if any of those parts come out, and if they do, look in there and shine a flashlight around there, look under the front seat, look in the front seat.

If it's got, like, seat covers, pull those up and look underneath the seat covers. I already said underneath the dash.

He also quotes the following testimony from Detective Jason Moon:

Q. What's involved in a search like that?

A. We, basically, go through the interior of the vehicle, make sure there's no contraband, no narcotics, no weapons, anything of that sort in the vehicle before we sent them out.

[¶ 10] One difficulty with Mr. Bolin's argument is that it does not take into account other testimony and exhibits presented at trial. The State introduced the agreement signed by the confidential informant setting forth the terms under which this informant was to act on behalf of law enforcement in this case specifically. Additionally, Detective Harper testified he searched the informant in this case prior to the attempted purchase from Mr. Bolin. He stated:

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I had [him] take off his shirt, search that separately, kick off his shoes, and after the shoes are off, will feel around the socks, make sure there's [no] bulges or anything crinkly, anything like that, pat down the legs, feels down the legs all the way. I don't make him take off his pants, but basically, run my hands over just every part.

Detective Harper also testified the searches he conducts do not vary depending on the type or...

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