Capshaw v. State, 98-309.

• Decision Date: 06 September 2000
• Docket Number: No. 98-309.,98-309.
• Citation: 10 P.3d 560
• Parties: Gary CAPSHAW, Appellant(Defendant), v. The STATE of Wyoming, Appellee(Plaintiff).
• Court: Wyoming Supreme Court

10 P.3d 560

Gary CAPSHAW, Appellant(Defendant), v. The STATE of Wyoming, Appellee(Plaintiff).

No. 98-309.

Supreme Court of Wyoming.

September 6, 2000.

Representing Appellant: Tina N. Hughes of Cheyenne, Wyoming.

Representing Appellee: Gay Woodhouse, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Kimberly A. Baker, Senior Assistant Attorney General.

Before THOMAS, MACY,¹ GOLDEN and HILL, JJ., and ELIZABETH A. KAIL, D.J. (RET.)

MACY, Justice.

Appellant Gary Capshaw appeals from the judgment and sentence which was entered after a jury found him guilty of two counts of possessing a controlled substance with the intent to deliver, one count of possessing a controlled substance which exceeded three grams, and one count of conspiring to deliver a controlled substance.

We affirm.

ISSUES

Capshaw presents three issues for our analysis:

1. Did the State's offer, and the admission of testimony against Appellant, by two witnesses who had plea bargained to reduce their sentences, violate 18 U.S.C.201(c)(2) and W.S. 6-5-102(a)(ii), and result in reversible error?

2. Did the State's offer, and the admission of, two witnesses' testimony that they were convicted of offenses arising out of the circumstances leading to Appellant's trial violate Appellant's right to have a trial on its own merits, and did such testimony constitute plain error?

3. Did the State's statements in closing arguments concerning the weight and credibility of the testimony and evidence constitute prosecutorial misconduct, and result in plain error?

FACTS

Capshaw's girlfriend rented a room at a motel in Casper on March 2, 1996. The couple spent approximately ten days there during which time the motel manager observed that there was an unusually large number of people visiting their room and that many telephone calls were coming in for them. She also noticed that Capshaw did not park his car in front of his room.

During this period of time, Capshaw rented another room at the motel, explaining to the manager that he was expecting a friend to arrive late during the night and that he did not want to have to wake her when his friend got there. The manager identified this friend as Patrick McDonald.

The manager was concerned about what was going on in the two rooms, and she notified the police of her suspicions about potential drug activity taking place. Agent Craig Malone and Agent Jeff Johnson set up a surveillance of Capshaw's motel rooms on the evening of March 6, 1996. During this surveillance, the agents observed various individuals going to the room.

On March 7, 1996, a search warrant for the two rooms was obtained, and a twenty-four-hour surveillance was established from March 7th through the morning of March 10th. The agents observed a large number of people entering the rooms and noted that they did not stay long.

On March 9, 1996, after completing their surveillance, the agents arrested McDonald. On March 10, 1996, pursuant to the search warrant, agents searched Capshaw's room, his car, and his girlfriend's car. A large triple beam scale and a box of syringes were found in the girlfriend's car. A fake hair spray can smelling of methamphetamine was found in Capshaw's car. In the room Capshaw rented for McDonald, agents found over six ounces of methamphetamine, packaging material, scales, and drug ledgers. In Capshaw's room, they found three and one-half grams of methamphetamine in a jacket which belonged to Capshaw, over five grams of additional methamphetamine, four bindles containing approximately one-half to one gram of heroin, a half gram bindle of methamphetamine, a vitamin bottle full of plastic bags which had traces of amphetamine and cocaine on them, a drug ledger, and approximately $2,000 in cash.

Capshaw was handcuffed and advised of his rights. He said he wanted to talk to the agents and was interviewed at the Casper police department approximately thirty minutes after the search began. During this interview, Capshaw said that he had known McDonald for only a few days. He gave names of people with whom he had been involved in buying and selling drugs. Agent Tim Hill testified that Capshaw told him "he could do anybody in this town for drugs and that he would give us more information on McDonald." Agent Hill, however, informed Capshaw that there were not going to be any deals made with him.

Agents interviewed McDonald on March 11, 1996. McDonald told them that he and Capshaw were involved in the distribution of methamphetamine. On August 5, 1996, McDonald "made a Crawford" which Agent Malone described as being "an opportunity to reveal to the government information he might have which would lead to further arrests of co-conspirators. It is an opportunity for him to tell us what he has in order that he might receive levels off of his Sentencing guidelines." McDonald told the agents that he and Capshaw had formed a business relationship for dealing drugs and that they had set up operations at the motel. McDonald subsequently entered into a plea agreement with federal prosecutors wherein he agreed to plead guilty to conspiring to distribute methamphetamine and to testify against Capshaw in exchange for having some charges dropped and receiving a more lenient sentence on the conspiracy charge.

Tina Stinson, one of the individuals who visited Capshaw at the motel, also gave the police information about Capshaw as a result of a plea agreement. She and her husband had been charged with drug related offenses. Stinson entered into a plea agreement wherein she agreed to plead guilty to a delivery charge and to testify in this case or any other case for which she had information in exchange for a conspiracy charge being dropped and two years probation. On March 12, 1996, Stinson told Agent Malone that she and her husband had obtained methamphetamine from Capshaw on numerous occasions.

Capshaw was charged with two counts of possessing a controlled substance with the intent to deliver, one count of possessing a controlled substance which exceeded three grams, one count of delivering a controlled substance, and one count of conspiring to deliver a controlled substance. The case went to trial, and Capshaw was convicted by a jury of all the charges except for the delivery-of-a-controlled-substance charge. He appeals to this Court.

DISCUSSION

A. Plea Agreements

Capshaw contends that the evidence about the plea agreements, which McDonald and Stinson had entered into wherein they agreed to testify against Capshaw, violated 18 U.S.C. § 201(c)(2) (1994) and Wyo. Stat. Ann. § 6-5-102(a)(ii) (LEXIS 1999). We disagree.

Capshaw's argument requires us to employ our rules of statutory interpretation. When we analyze statutes, we endeavor to interpret them in accordance with the legislature's intent. Fall v. State, 963 P.2d 981, 983 (Wyo.1998). We begin by making an "`inquiry respecting the ordinary and obvious meaning of the words employed according to their arrangement and connection.'" Parker Land and Cattle Company v. Wyoming Game and Fish Commission, 845 P.2d 1040, 1042 (Wyo.1993) (quoting Rasmussen v. Baker, 7 Wyo. 117, 133, 50 P. 819, 823 (1897)). We construe the statute as a whole, giving effect to every word, clause, and sentence, and we construe together all parts of the statute in pari materia so that no part will be inoperative or superfluous. Fall, 963 P.2d at 983.

As an initial matter, we point out that McDonald had a plea agreement with federal prosecutors and not with the state prosecutors. We, therefore, will not consider Capshaw's argument that the state somehow violated 18 U.S.C. § 201(c)(2) and § 6-5-102(a)(ii) with regard to McDonald.

Capshaw's argument that the state's plea agreement with Stinson violated 18 U.S.C. § 201(c)(2) and § 6-5-102(a)(ii) is not any more meritorious. Stinson entered into a plea bargain with the state wherein she agreed to testify against Capshaw in exchange for a more lenient sentence for a delivery-of-methamphetamine charge that she was facing and in exchange for the conspiracy charge being dropped. Capshaw contends that, because Stinson was potentially facing ten years in prison on both charges and was afraid of going to prison because she would lose her children, 18 U.S.C. § 201(c)(2), which prohibits giving, offering, or promising anything of value to a witness because of his testimony, was violated. That section provides in pertinent part:

(c) Whoever—

...

(2) directly or indirectly, gives, offers, or promises anything of value to any person, for or because of the testimony under oath or affirmation given or to be given by such person as a witness upon a trial, hearing, or other proceeding, before any court ... authorized by the laws of the United States to hear evidence or take testimony ...

shall be fined under this title or imprisoned for not more than two years, or both.

18 U.S.C. § 201(c)(2).

When Capshaw was writing his appellate brief, this provision had been interpreted by the Tenth Circuit Court of Appeals to include plea agreements. The court held that plea agreements which promise leniency to a witness in consideration for his trial testimony are violative of 18 U.S.C. § 201(c)(2). United States v. Singleton, 144 F.3d 1343 (10 th Cir.1998), reh'g en banc granted & opinion vacated July 10, 1998. On January 8, 1999, however, Singleton was reversed when a majority of the en banc court held that 18 U.S.C. § 201(c)(2) does not apply to the United States acting in its sovereign capacity and thus does not include an assistant United States attorney who is acting as an alter ego of the United States in offering an accomplice leniency in exchange for truthful testimony. United States v. Singleton, 165 F.3d 1297 (10 th Cir.) (en banc), cert. denied, 527 U.S. 1024, 119 S.Ct. 2371, 144 L.Ed.2d 775 (1999). We agree with the court's conclusion that to apply this section to a government attorney who is functioning...