Almada v. State
| Decision Date | 21 December 1999 |
| Docket Number | No. 98-74.,98-74. |
| Citation | 994 P.2d 299 |
| Parties | Orlando ALMADA, Petitioner, v. The STATE of Wyoming, Respondent. |
| Court | Wyoming Supreme Court |
Representing Petitioner: Sylvia Lee Hackl, State Public Defender; Donna D. Domonkos, Appellate Counsel. Argument by Ms. Domonkos,
Representing Respondent: Gay V. Woodhouse, Chief Deputy Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Stephen E. Weichman, Special Assistant Attorney General. Argument by Mr. Weichman,
Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN, and HILL, JJ.
Petitioner Orlando Jose Marie Almada (Almada) entered into a plea agreement with the State, reserving his right to appeal pursuant to W.R.Cr.P. 11. The plea agreement was conditioned on his right to appeal from four adverse determinations of law by the district court. Specifically, he appeals from the denial of his motion to remand for a meaningful preliminary hearing, motions to dismiss for alleged speedy trial and speedy preliminary hearing violations, motion to suppress wiretap evidence and motion to suppress search evidence.
Almada's right to a speedy trial or preliminary hearing was not violated, as the majority of the delay occurred with the consent of Almada through express waivers of that right and four continuance motions. The district court did not err when it denied his motion for remand for a meaningful preliminary hearing because there is no right to discovery at that stage of a criminal proceeding. The slight inaccuracy in the affidavit supporting the request for a search warrant for Almada's residence did not affect the validity of the warrant or the search, and the warrant was supported by sufficient facts to support a finding of probable cause.
Wyoming's Communication Interception Act does not require a court order before obtaining information through the use of electronic devices when one of the parties has consented to the recording and transmission of the conversation.1 Finally, although we are not bound by them, we find the cases decided by the United States Supreme Court and a majority of our sister states most persuasive in their consideration of the constitutionality of participant monitoring without court authorization. Accordingly, we hold the use of transmitting and recording devices in Almada's home did not violate his state constitutional right against unreasonable search and seizure. Therefore, we affirm.
Petitioner Almada presents the following issues, in the form of arguments, for review:
Respondent State did not submit a statement of the issues.
On four occasions in May 1996, Almada sold marijuana and cocaine to two buyers who, in turn, delivered the drugs to confidential informants working for the Wyoming Department of Criminal Investigation (DCI). On the basis of affidavits prepared by DCI agents, the justice court issued a warrant to search Almada's apartment. The State's Information, charging Almada with conspiracy to deliver controlled substances, resulted in the issuance of a warrant for his arrest on the same day.
Arrangements were made for a large purchase of cocaine from Almada on June 4, 1996. On that day, Almada invited an undercover DCI agent, the two confidential informants, and one of the buyers into his home. The DCI agent and one of the confidential informants were wearing microcassette recorders and body transmitters. Immediately after he sold the cocaine to the DCI agent, Almada was arrested, the search warrant was executed, and officers found additional controlled substances and drug paraphernalia in the apartment.
After several continuances and motion hearings, which resulted in orders adverse to his defense, Almada entered into a conditional plea agreement with the State and changed his plea in the district court on June 9, 1997. Almada reserved the right to seek review of the district court's adverse rulings on four of his pretrial motions: 1) the denial of his motion to remand for a meaningful preliminary hearing or to dismiss counts from an amended information; 2) the denial of a motion to dismiss for violation of his right to a speedy preliminary hearing and speedy trial; 3) the denial of his motion to suppress "wiretap evidence;" and 4) the denial of his motion to suppress evidence he claims was obtained in an illegal search of his apartment.
Almada contends he did not receive a meaningful preliminary hearing because he was denied discovery before the preliminary hearing. Almada sought the cassette tapes of his conversations with the confidential informants and the identities of the undercover DCI agent and confidential informants before the preliminary hearing by way of a motion to the justice court pursuant to W.R.Cr.P. 16 and a subpoena duces tecum served on one of the DCI agents. At his July 15, 1996, preliminary hearing, Almada asked for a continuance because he had not received the tapes. The justice court ordered the State to allow Almada to listen to and copy the tapes and reset the preliminary hearing. However, the State sought a writ of review in the district court to determine whether the tapes were discoverable before the preliminary hearing. The district court ruled Almada was not entitled to discovery before the preliminary hearing and remanded the matter to the justice court.
We review discovery rulings for abuse of discretion. Dodge v. State, 562 P.2d 303, 307 (Wyo.1977). Wyoming law concerning discovery and preliminary hearings is clear:
Rule 5.1(b), W.R.Cr.P., provides an accused the right to subpoena and call witnesses during his preliminary hearing, but this right is not absolute. Garcia v. State, 667 P.2d 1148, 1154 (Wyo.1983). This right must be viewed in light of the true constitutional purpose of the preliminary hearing, which is to obtain a determination by a neutral, detached fact finder that there is probable cause to believe a crime has been committed and that the defendant committed it. Id. And although some discovery is the inevitable by-product of a preliminary hearing, discovery is not the purpose of the hearing. Id. Thus, discretion is left to the court to determine whether or not the purpose for which a defendant seeks to introduce testimony from a witness whom he has subpoenaed fits within the realm of discovery rather than the determination of probable cause. Id. To this end, we have stated that it is incumbent upon counsel to explain the relevance to the issue of probable cause of the testimony he seeks to introduce at the preliminary hearing, pursuant to a sufficient offer of proof. Id. at 1155.
Madrid v. State, 910 P.2d 1340, 1343 (Wyo. 1996).
Almada does not claim the information he sought was relevant to the determination of probable cause. The tapes he sought contained recordings from the drug transaction, and the subpoena requested the presence of those individuals who were a party to the transaction. However, both the State and Almada had witnesses prepared to testify about the transaction at the preliminary hearing. The finding of probable cause may be based upon hearsay evidence, in whole or in part. Hennigan v. State, 746 P.2d 360, 369 (Wyo.1987). Although Almada has not informed the Court of the reason for his request, other than the need for a "meaningful preliminary hearing," we infer that he questioned the reliability of the testimony from the State. In Hennigan, we held Hennigan, 746 P.2d at 369 (citing Wilson v. State, 655 P.2d 1246 (Wyo.1982)). In a felony case the right of discovery attaches under W.R.Cr.P. 16 only after the defendant has been bound over for trial in the district court. The justice court abused its discretion when it ordered the State to permit discovery of material which did not pertain to probable cause. As Judge Rogers opined in his well-reasoned order on writ of review:
In very few areas of the law has the Wyoming Supreme Court spoken so unequivocally and emphatically as it has in defining and reaffirming the purpose and the parameters of a preliminary hearing. These rules have been established and never modified in a string of approximately sixteen cases covering a period of the last twenty years.
The district court did not err in reversing the justice court's discovery order and quashing the subpoena duces tecum. Almada still received a meaningful preliminary hearing because the purpose of the hearing, establishing "the existence of probable cause to hold the accused for prosecution," was not affected by the absence of the information he sought through his discovery motions. Haight v. State, 654 P.2d 1232, 1235 (Wyo. 1982) (quoting Weddle v. State, 621 P.2d 231, 239 (Wyo.1980)).
Almada contends the lengthy delay between his arrest and acceptance of his plea violated both W.R.Cr.P. 48 and state and federal constitutional guarantees of a speedy trial. "This court performs a de novo review of a conviction to ensure that the mandates of W.R.Cr.P. 48 and the constitutional guarantee of a speedy trial have been met."...
To continue reading
Request your trial
-
State v. Skok
...719, 724 (N.D. 2010); State v. Sanders, 452 S.W.3d 300, 315 (Tenn. 2014); State v. Boone, 581 P.2d 571, 573 (Utah 1978); Almada v. State, 994 P.2d 299, 311 (Wyo. 1999). 11. Although the defendant contends that "[o]ver a dozen state [s]upreme [c]ourts have rejected the [third-party consent] ......
-
Huff v. Shumate
...the legislature enacts statutes with full knowledge of the existing conditions of the law and with reference to it. See Almada v. State, 994 P.2d 299, 306 (Wyo.1999). In conjunction with this principle, reviewing courts are to construe the challenged statutes in harmony with existing law an......
-
Ortiz v. State
...trial claims to ensure that the mandates of the rules of criminal procedure and constitutional guarantees have been met. Almada v. State, 994 P.2d 299, 304 (Wyo.1999). Our analysis will address both the state and constitutional questions. We begin by calculating the time between defendant's......
-
Dean v. State
...to a speedy trial is guaranteed by the Sixth Amendment to the United States Constitution and Wyo. Const. art. 1, § 10. Almada v. State, 994 P.2d 299, 304 (Wyo.1999). This Court has adopted W.R.Cr.P. 48(b) as a procedural mechanism for enforcing this constitutional right. Almada, 994 P.2d at......
-
Preliminary hearings
...the applicability of the rules of evidence at preliminary hearings: • They do not apply at all. [ E.g. , FRE 1101(d)(3); Almada v. State , 994 P.2d 299, 303 (Wyo. 1999).] • While they do not apply, the bind-over decision cannot be based entirely on hearsay or inadmissible evidence. [ E.g., ......