Black v. State
| Decision Date | 28 May 2020 |
| Docket Number | S-19-0153 |
| Citation | 464 P.3d 574 |
| Parties | Roger Keith BLACK, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Representing Appellant: Office of the State Public Defender: Diane Lozano, State Public Defender; Kirk A. Morgan, Chief Appellate Counsel; Robin S. Cooper, Senior Assistant Appellate Counsel. Argument by Ms. Cooper.
Representing Appellee: Bridget Hill, Wyoming Attorney General; Jenny L. Craig, Deputy Attorney General; Joshua C. Eames, Senior Assistant Attorney General; Timothy P. Zintak, Assistant Attorney General. Argument by Mr. Zintak.
Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.
[¶1] Roger Black was charged with and convicted of one count of conspiracy to deliver a controlled substance and four counts of delivery of a controlled substance based on transactions with a confidential informant. He appeals the district court's refusal to instruct the jury on his entrapment theory of defense. We conclude that the evidence was sufficient to warrant the requested instruction and reverse.
[¶2] Mr. Black presents a single issue on appeal, which we restate as:
Did the district court err when it refused to instruct the jury on Mr. Black's entrapment defense?
[¶3] Tabitha Charles worked as a confidential informant (CI) for the Wyoming Department of Criminal Investigation (DCI) from September 1, 2017 through October 2017. As a CI, she was paid to make controlled drug purchases in the Sheridan area, and in that period, made eight to ten controlled purchases of methamphetamine and earned seven to eight hundred dollars.2
[¶4] DCI initially directed Ms. Charles to make controlled purchases from a target named Linda Bradford. On or around September 24, 2017, Ms. Charles attended a party at Ms. Bradford's home, and Ms. Bradford introduced her to Roger Black. Mr. Black then became a DCI target when Ms. Charles informed DCI that he had told her that if she was unable to get methamphetamine from Linda Bradford, he could obtain it for her.3
[¶5] On September 25, 2017, at around 2:00 in the afternoon, Ms. Charles placed a call to Mr. Black and asked to purchase a hubcap for $150.4 She made the call while at DCI headquarters and with DCI monitoring the call. Mr. Black said he would need a minute and would give her a holler.
[¶6] Mr. Black called Ms. Charles back at 4:10 that afternoon. She was still in the DCI office when she received the call, and it was again monitored and recorded. Mr. Black informed her that he struck out at the first place, but that he had one more place he could try. He told her he needed to know how many hubcaps she wanted, to which she responded that it depends on the "car place" he goes to and that she has $150 if he will cover the cost of a hubcap for her. He told her that he did not have the money to cover it, and she swore in response. He then asked if she wanted to go along, and she agreed to meet him at his home in five minutes.
[¶7] After they met, the two drove to a dog park to wait for Mario Watt, the person from whom Mr. Black hoped to buy the methamphetamine. Ms. Charles asked Mr. Black if he was disappointed in her for wanting the drugs, and he responded that he had "been there, done that," and also that it would "be better if you didn't do it." A little later, Mr. Black asked her, "Why do you want to get so much for anyway?" As they continued to wait for Mr. Watt, they had the following exchange:
[¶8] Mr. Watt eventually showed up at the dog park but did not have any methamphetamine, and Mr. Black and Ms. Charles left the park to return to Mr. Black's apartment. On the way, he stopped at another location to see if he could find someone to sell him methamphetamine but found no one there. At that point, he stated, "Can't think of anyone else offhand," and returned to his apartment. Before they parted ways, Ms. Charles asked, "You'll just call me," to which Mr. Black responded, "If that's what you want." They continued to talk, with Mr. Black expressing doubt that she would return after leaving his apartment and her assuring him that he would see her again and that she was hoping that he would get a call.
[¶9] Ms. Charles returned to the DCI office and was searched and returned the buy money. Later that evening, Mr. Black called her and told her that he was able to get some methamphetamine for her. DCI again fitted her with a wire and gave her money to make the buy. She then went to Mr. Black's apartment and paid him $100 for what turned out to be 1.2 grams of methamphetamine. Before he gave her the methamphetamine, he expressed his reluctance because her mother was proud of her for not using drugs, but also said that she was a grown woman who could decide for herself. Later in the conversation, she asked why he would not get high with her, and he responded, "I'm trying to be good." She pressed again, stating, "Come on, Roger, please," and he responded, "Please don't do that." When she eventually left, she told him she would return to stay the night at his apartment.
[¶10] Ms. Charles returned to the DCI office where she was searched and turned over the 1.2 grams of methamphetamine and the remaining fifty dollars of the buy money. She did not return to Mr. Black's apartment that evening.
[¶11] Ms. Charles was in contact with Mr. Black again concerning the possibility of buying methamphetamine in late September or early October, and she learned that he had been able to purchase a gram of methamphetamine and might be able to obtain two eight balls for her.5 At 1:30 p.m. on October 2, 2017, Ms. Charles met with DCI and was again fitted with a wire and given money to purchase methamphetamine from Mr. Black. During that buy, she obtained seven-tenths of a gram of methamphetamine. She also talked with him about getting the two eight balls and about her financial troubles and need for money. She told him that she wanted to get the eight balls through him and not through Linda Bradford, and that she had an extra $100 if she was able to do it through him. Toward the end of their conversation, she told him she just needed to do one or two more buys to pay off her fines, and then she would be able to go to Florida with him. He said he was not sure if he could get the eight balls but that he would check with a couple of people.
[¶12] Later that same day, at about 5:30 p.m., Mr. Black contacted Ms. Charles and told her he might be able to buy two eight balls of methamphetamine for her through Mario Watt. Ms. Charles contacted DCI and was once again fitted with a wire and given $500 in buy funds. Mr. Black picked her up at her home, and they drove to the same dog park they had earlier visited. While they waited at the dog park, Mr. Black took a call and then told Ms. Charles "he doesn't have it." Mr. Black then said they might not be able to get the methamphetamine, and he and Ms. Charles briefly argued, because she believed he had definitely said he could obtain it. He told her that "nothing's a sure thing," and that all he had said was, "I bet I know who can hook us up." He then said, "Hopefully this guy will come through."
[¶13] They continued to wait in Mr. Black's vehicle at the dog park, and he again called his source, who said he would be down. While they continued to wait, Mr. Black and Ms. Charles had the following exchange:
[¶14] Shortly after that, Ms. Charles asked Mr. Black if he had the $500 to cover the buy, and he responded that he did not. They went back and forth on whether she would front him the money to make the buy, and she instructed him to drop her off at her mother's house, that she would give him the money to make the buy, and that she would tell her mother that she was going to stay the night with him. When he asked her what she wanted him to get, she told him that she would prefer eight balls, but if he can only get grams, then he should obtain those. He dropped her off and returned about forty minutes later with what he called four good grams, which later weighed in at five grams with the baggie. Ms. Charles then told him that she would come over to his house in about an hour and that she had told her mom that she was going to stay the night there. After he left, DCI agents picked her up, and she turned the drugs over to them. She did not return to Mr. Black's home that evening.
[¶15] On October 12, 2017, Ms. Charles met with DCI agents and informed them that she believed that she would be able to purchase additional methamphetamine from Mr. Black, again through Mario Watt. She was again fitted with a wire and given buy funds. The controlled buy took about five hours and was originally called off after four hours because Mr. Black had been unable to make contact with Mr. Watt. At that point Ms. Charles told Mr. Black that the buy was off. She returned to DCI and was searched, the wire was removed, and the buy funds were returned.
[¶16] About eight minutes...
To continue reading
Request your trial
-
Smith v. State
...in the light most favorable to a defendant who is refused a theory of defense instruction. Black v. State , 2020 WY 65, ¶ 22, 464 P.3d 574, 579 (Wyo. 2020) (quoting Garza v. State , 2020 WY 32, ¶ 18, 458 P.3d 1239, 1243 (Wyo. 2020) ).[¶4] On the date these events transpired, Ms. Smith worke......
-
Howitt v. State
...reviews de novo." Smith v. State , 2021 WY 28, ¶ 25, 480 P.3d 532, 538 (Wyo. 2021) (quoting Black v. State , 2020 WY 65, ¶ 22, 464 P.3d 574, 579 (Wyo. 2020) ). "[T]he question of whether the court invaded the province of the jury by making a factual determination" is a legal question that w......