Blumhagen v. State

• Decision Date: 29 September 2000
• Docket Number: No. 99-191.,99-191.
• Citation: 11 P.3d 889
• Parties: Craig BLUMHAGEN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

11 P.3d 889

Craig BLUMHAGEN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 99-191.

Supreme Court of Wyoming.

September 29, 2000.

Representing Appellant: Daniel G. Blythe of Blythe & Steiner, P.C., Cheyenne, Wyoming.

Representing Appellee: Gay Woodhouse, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Georgia L. Tibbetts, Senior Assistant Attorney General; Theodore E. Lauer, Director of the Prosecution Assistance Program; and Joseph P. Johnson III, Student Intern for the Prosecution Assistance Program.

Before LEHMAN, C.J., and THOMAS, MACY¹, GOLDEN, and HILL, JJ.

MACY, Justice.

Appellant Craig Blumhagen appeals from his conviction on three counts of delivering cocaine.

We affirm.

ISSUES

Blumhagen presents the following issues on appeal:

Was the trial court's refusal to allow the only eyewitness to the events charged to be impeached error?

Was the trial court's decision to allow [the admission of] the fruits of a search of the defendant's new residence some five months after the events in question an abuse of discretion and was the admission of uncharged misconduct in violation of Rule 403 and Rule 404 of the Wyoming Rules of Evidence error?

Was Mr[.] Blumhagen denied the effective assistance of trial counsel?

FACTS

In the fall of 1997, Detective Wesley Gasner of the Cheyenne Police Department enlisted the help of a confidential informant to uncover drug activities in Cheyenne. The confidential informant asked Blumhagen to meet her at her apartment on November 2, 1997. Detective Gasner searched the confidential informant prior to the meeting and gave her a cellular telephone and money to buy cocaine.

Blumhagen was driven to the confidential informant's apartment by an unidentified person in a car registered to Rudy Hernandez. Blumhagen gave the cocaine to the confidential informant, and the informant paid him with the money provided by Detective Gasner. During the exchange, Detective Gasner hid in the confidential informant's bathroom, and two other officers surveilled the apartment from outside. Blumhagen left the apartment in Hernandez's car.

The confidential informant also purchased cocaine from Blumhagen later that evening. Detective Gasner drove the confidential informant to Blumhagen's apartment. The detective then gave Blumhagen and the confidential informant a ride to a Cribbon Avenue residence, which apparently belonged to Hernandez. Detective Gasner remained in the car while Blumhagen and the confidential informant walked down an alley near the residence. Blumhagen went into Hernandez's house, and the confidential informant waited outside in the alley. When he returned from Hernandez's house, Blumhagen gave the cocaine to the confidential informant.

On November 23, 1997, the confidential informant met Detective Gasner at the police station. Detective Gasner drove the confidential informant to Blumhagen's apartment, and she went inside. The detective waited in the car and other officers surveilled the area while the confidential informant was in Blumhagen's apartment. Blumhagen told the confidential informant that he was "waiting for the guy to bring it over." After approximately fifteen minutes, Hernandez arrived at the apartment. He and Blumhagen talked in a corner, and then Hernandez left. Blumhagen put the cocaine into the confidential informant's pocket, and she paid him.

On January 16, 1998, the district attorney filed a criminal information, charging Blumhagen with three counts of delivering cocaine. On April 10, 1998, the police searched Hernandez and Blumhagen's residence on Cribbon Avenue, seizing drugs and drug paraphernalia.² Blumhagen was arrested, and, after he and Hernandez were tried in a joint trial, a jury found Blumhagen guilty of all three counts. The district court subsequently denied Blumhagen's motion for a new trial, entered a judgment in accordance with the jury's verdict, and sentenced him to the Wyoming State Penitentiary. Blumhagen appealed to the Wyoming Supreme Court.

DISCUSSION

In his first issue, Blumhagen presents a multi-faceted argument challenging the trial court's decisions on the admissibility of evidence about the confidential informant's drug use. The state argues that the trial court's rulings were correct. We agree with the state.

A trial court has discretion in determining the admissibility of evidence, and we will not disturb that court's evidentiary rulings unless it abused its discretion. Kenyon v. State, 986 P.2d 849, 851 (Wyo.1999); Kolb v. State, 930 P.2d 1238, 1245 (Wyo.1996). A court abuses its discretion when it acts in a manner which exceeds the bounds of reason under the circumstances. Hilterbrand v. State, 930 P.2d 1248, 1250 (Wyo.1997). In determining whether there has been an abuse of discretion, we must decide the ultimate issue of whether or not the court could have reasonably concluded as it did. Id.; see also Newport v. State, 983 P.2d 1213, 1217 (Wyo.1999).

The prosecution filed a motion in limine requesting that the trial court exclude evidence of the confidential informant's prior drug use. The parties argued the motion immediately following jury selection. The trial court reserved its ruling on the motion, stating that it would allow Blumhagen to make an offer of proof concerning his proposed cross-examination of the confidential informant after the prosecution finished its direct examination of her. The prosecution called the confidential informant as its first witness, but it did not question her about her drug use. The prosecution did, however, elicit testimony from the confidential informant concerning the fact that she had been placed on probation three or four months before she began working as a confidential informant and, while on probation, she underwent urine tests, the results of which were negative. Blumhagen did not make an offer of proof before he cross-examined the confidential informant, and he did not question her about her drug use.

Detective Gasner testified after the confidential informant. During the defense counsel's cross-examination of the detective, she questioned him about the confidential informant told him she had used drugs "in her younger days" but that she was currently "straight."

After the prosecution rested its case, Blumhagen's attorney indicated that she wanted to call a witness to testify about the confidential informant's prior drug use. The defense attorney insisted that the evidence was necessary to impeach the confidential informant's credibility. The defense counsel conceded, however, that she did not expect to elicit testimony showing that the confidential informant was using drugs while she was acting as a confidential informant. Blumhagen called Shane Cauley to testify in an offer of proof concerning the confidential informant's drug use. Cauley testified that he had witnessed the confidential informant using methamphetamine during the summer of 1997 but that he had not seen her use drugs since that time. The trial court refused to allow Cauley to testify before the jury, indicating that Cauley's testimony was collateral and was not relevant to the trial issues.

W.R.E. 608(b) prohibits using extrinsic evidence to prove a specific instance of a witness' conduct for the purpose of establishing the witness' character or propensity for lying. Punches v. State, 944 P.2d 1131, 1137-38 (Wyo.1997); Gist v. State, 766 P.2d 1149, 1151 (Wyo.1988). That rule states:

(b) Specific instances of conduct. — Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

W.R.E. 608(b). Cauley's testimony about the confidential informant's drug use during the summer of 1997 amounted to extrinsic evidence concerning a specific instance of the confidential informant's conduct and was not, therefore, admissible to attack her credibility.

A witness' use of drugs while she is testifying or during the events about which she is testifying may, of course, be presented to the jury because the drug use could have affected the witness' observations or statements. See Gist, 766 P.2d at 1151-53; Valerio v. State, 542 P.2d 875, 877 (Wyo.1975). The defense did not present any evidence to show that the confidential informant was under the influence of drugs while she was testifying or working with Detective Gasner. Indeed, the defense counsel admitted that she did not expect to elicit testimony from Cauley that the confidential informant was using drugs while she was acting as a confidential informant. Consequently, we agree with the trial court that Cauley's testimony about the confidential informant's prior drug use was not relevant. W.R.E. 401, 402; Valerio, 542 P.2d at 877.

Blumhagen also contends that Cauley's testimony was admissible because it specifically contradicted the confidential informant's trial testimony. He claims that this Court's decision in Gist supports his position. In that case, an undercover narcotics officer testified that he had simulated smoking marihuana while taking part in a drug transaction involving the defendant. Gist, 766 P.2d at 1149. The officer testified, however, that he had never actually used illegal drugs. 766 P.2d at 1150. The defense requested that the trial court allow it to present extrinsic evidence of the officer's prior drug use to contradict the officer's statement. Id. The trial court refused to allow the defendant to present the extrinsic evidence to...