Apodaca v. State, 5437
| Decision Date | 08 May 1981 |
| Docket Number | No. 5437,5437 |
| Parties | Alfred APODACA, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Neil J. Short, Casper, for appellant.
Steven F. Freudenthal, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Crim. Div., and Marion Yoder, Asst. Atty. Gen. (argued), on brief, for appellee.
Before ROSE, C. J., and RAPER, THOMAS, ROONEY and BROWN, JJ.
From his conviction of and sentence for delivery of a controlled substance in violation of § 35-7-1014(d)(x), W.S.1977, 1 and § 35-7-1031(a)(ii), W.S.1977, 2 along with conspiracy to deliver a controlled substance in violation of § 35-7-1042, W.S.1977, 3 appellant has appealed on two bases. First, he claims that the admission of evidence regarding his sale of a substance which had been promoted by him as angel dust, 4 also known as PCP, unfairly prejudiced the jury against him and denied him a fair trial. Second, he argues that the failure of the information to allege an overt act in conjunction with the conspiracy charge rendered it fatally defective.
We will affirm.
In the course of his duties with the Natrona County Drug Task Force, an undercover investigator first telephoned the appellant on November 26, 1979. The investigator inquired about the possibility of purchasing some angel dust; he was told to call back later in the day, so that a check could be made to determine if there was any available. At approximately 9:30 p. m. that same day, the investigator called appellant again. During this conversation, appellant indicated that he thought he could get the angel dust but that he would have to pick it up from someone else. He then stated "that he had a quantity of marijuana at the house he would be willing to sell also." The price for this was pegged at $525 a pound.
The next day a rendezvous was planned for the Casper Husky East parking lot where "they" would meet the investigator. The arrangement called for the delivery of both the marijuana and some angel dust. When the investigator was approached in the parking lot by two people in a yellow Datsun pickup, as the plan called for, he greeted them and they responded. He was able to recognize appellant's voice from the previous phone conversations. Appellant then announced that he had the dope and wanted the investigator to try it and see if he liked it. The investigator agreed and got into the pickup. During the ride, the investigator was given a tinfoil packet by the other passenger at the request of appellant, which appellant asserted was angel dust, and a bag of unmanicured marijuana which the passenger, at the instance of appellant, got from the back of the truck. In return, appellant was paid $545 for the merchandise. The Datsun returned to the Husky parking lot where the investigator's partner was waiting. Appellant and his associate were then arrested. It was thereafter determined that the substance in the tinfoil packet was not angel dust. The investigator had been ripped off in that respect. 5
On January 3, 1980, the following information was filed:
On July 25, 1980, appellant moved in limine for an order denying the use of any testimony concerning PCP or angel dust. The trial court denied the motion. The same motion was again made and denied at trial.
After the case had proceeded to trial on August 18, 1980, appellant sought the dismissal of the conspiracy count claiming that the information failed to properly allege the crime of conspiracy to deliver a controlled substance. This motion was denied following argument.
Late on August 19, 1980, the jury returned a verdict convicting appellant on both counts of the information. He then received on November 5, 1980, a sentence of four to six years imprisonment on both counts; however, the judge ordered that the sentences were to be served concurrently.
We shall consider appellant's second claim first since in it he contends that the information was fatally defective. His argument is that an overt act is an essential element of the crime of conspiracy. An information must set forth each element of a crime or it is defective. In this case, appellant continues that since the information failed to set forth an overt act, it was insufficient.
As appellant noted, in Wyoming an information to be legally adequate must identify the offense charged so as to enable the accused to prepare his defense. This court said in Gonzales v. State, Wyo., 551 P.2d 929, 933 (1976):
"In summary, an indictment to be legally sufficient must fairly indicate the crime charged, must state the essential elements of the alleged crime and be sufficiently definite so that the defendant can prepare his defense and grant protection from further prosecution for the same offense (double jeopardy)."
In this case the information listed the date and the county of venue where the offense was allegedly committed. Within the same information was the charge of actual delivery of marijuana on the same date and in the same county of the conspiracy. Appellant seems to be arguing that this was too vague to be sufficient.
Wyoming has in addition to the special conspiracy statute pertaining to drug violations under which appellant was charged, one of a general nature creating the crime of conspiracy, § 6-1-117, W.S.1977:
(Emphasis added.)
While the commission of an overt act is a necessary element of proof in establishing the general crime of conspiracy, Jasch v. State, Wyo., 563 P.2d 1327 (1977), this court has not had occasion to determine the exact essentials of an information charging a conspiracy under the foregoing statute. We need not decide that in this case. The mention of § 6-1-117 is only introductory to what follows.
The Wyoming controlled substances conspiracy statute (footnote 3), under which appellant was charged, is strikingly similar to the language in the Federal Comprehensive Drug Abuse Prevention and Control Act of 1970. That act in pertinent part provides:
"Any person who attempts or conspires to commit any offense defined in this subchapter is punishable by imprisonment or fine or both which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy." 21 U.S.C. § 846. (Emphasis added.)
This language has been construed as altering in drug violations the general law of conspiracy. It is the rule in federal court that when a defendant is charged under 21 U.S.C. § 846, "the government need not allege and prove an overt act to sustain a conviction." United States v. Marable, 578 F.2d 151 (5th Cir. 1978). See also, United States v. Knowles, 572 F.2d 267 (10th Cir. 1978); United States v. Bommarito, 524 F.2d 140 (2nd Cir. 1975). 6
When the Wyoming legislature adopts a statute derived from another jurisdiction, the case law found in that jurisdiction construing the statute is persuasive authority. Woodward v. Haney, Wyo., 564 P.2d 844 (1977). Thus, since § 35-7-1042, W.S.1977, was derived from 21 U.S.C. § 846, we view the federal case law on the latter as convincing authority when construing the former. Since under the federal statute an overt act is not an essential element of the crime of conspiracy, we hold that the same is true in Wyoming when a defendant is charged under § 35-7-1042, W.S.1977. The requirements, however, spelled out in Gonzales v. State, supra, still must be satisfied. We hold that they were. The defendant was sufficiently apprised of the charges against him so as to allow the preparation of his defense. If appellant felt he needed more information with respect to the charges against him, he could have moved for a bill of particulars, 7 designed to make more specific and certain the general allegations of the information to enable a defendant to prepare his defense and avoid being surprised at trial. Booth v. State, Wyo., 517 P.2d 1034 (1974). We find no indication of surprise nor concern about lack of knowledge by appellant of the State's case. Attached to one of appellant's pretrial motions, dated July 28, 1980, was an affidavit of the investigating officer which set out the facts of the entire conspiracy of which appellant was a part and was actually the same as the evidence produced at the trial held on August 18, 1980. Appellant had the benefit of complete discovery of the State's case before trial. It was not until the day of the trial...
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