Chavez-Becerra v. State, CHAVEZ-BECERR

• Decision Date: 03 September 1996
• Docket Number: CHAVEZ-BECERR,No. 95-247,A,95-247
• Citation: 924 P.2d 63
• Parties: Ramiroppellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 63

924 P.2d 63

Ramiro CHAVEZ-BECERRA, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 95-247.

Supreme Court of Wyoming.

Sept. 3, 1996.

Sylvia Lee Hackl, State Public Defender; Gerald L. Gallivan, Director, Defender Aid Program; Travis B. Samulski, Student Intern., for appellant.

William U. Hill, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Sr. Assistant Attorney General; Georgia L. Tibbetts, Assistant Attorney General, for appellee.

Before TAYLOR, C.J., and THOMAS, MACY, GOLDEN, ^* and LEHMAN, JJ.

GOLDEN, Justice.

Appellant Ramiro Chavez-Becerra appeals his conviction on two counts of delivering a controlled substance. He claims reversible error occurred when the trial court refused to give his offered jury instruction on his theory of defense and claims plain error occurred when the trial court allowed the prosecutor to deliver an improper closing argument.

We affirm.

Chavez-Becerra presents these issues for our review:

I. Whether it was reversible error for the trial court to refuse to give defendant's theory of the case jury instruction or one of similar substance regarding the informants' reasons and motives to lie in their testimony which provided the only basis for conviction?

II. Did the trial court commit plain error when it allowed the prosecuting attorney, Ms. Nau, to use statements based on hearsay in her closing argument which were not relevant to the charges against Mr. Chavez-Becerra, but clearly suggested that the defendant was a well known violator, if not a career criminal and that such information should be used to corroborate informant testimony?

The State restates the issues as:

I. Did the District Court properly refuse Appellant's proffered jury instruction?

II. Was plain error committed by the prosecutor's statements in closing argument?

FACTS

In January of 1994, Louise Burton, on probation from a 1989 drug conviction, purchased cocaine and delivered it to an informant working for the Laramie County Sheriff's Department. In February of 1994, Louise and Gerry Burton agreed to work as informants for the Laramie County Sheriff's Department. In return, Mrs. Burton hoped to avoid prison for delivery of cocaine charges and probation violations. The Burtons arranged two controlled cocaine purchases from Ramiro Chavez-Becerra. On March 3, 1994, Mrs. Burton placed a recorded telephone call to Chavez-Becerra from the sheriff's department and arranged to purchase an eight-ball of cocaine, about 3.5 grams. After being fitted with a recording device, given $200.00 in buy money, and having been searched, she met Chavez-Becerra at his residence while under constant surveillance by law enforcement officers and gave him the money. She then departed without receiving any cocaine. Chavez-Becerra left his home and drove to Greeley, Colorado. Upon his return, he left a message for Mrs. Burton. She went to the sheriff's department and returned the phone call which was recorded. Later that evening, wired, searched, and under surveillance, Mrs. Burton returned to Chavez-Becerra's home and received cocaine which she turned over to officers at the sheriff's department. On March 17, 1994, Gerry Burton made a recorded telephone call to Chavez-Becerra to arrange the purchase of another eight-ball of cocaine. The arranged buy was also recorded, buy money provided, and constant surveillance kept in the same manner as during Mrs. Burton's arranged purchase. Once again Chavez-Becerra made a trip to Colorado and was contacted by Mr. Burton that evening. Mr. Burton returned to Chavez-Becerra's home and picked up the cocaine and turned it over to officers. Approximately one month later, Chavez-Becerra was arrested for delivery of cocaine. A jury convicted him on two counts of delivery of a controlled substance and he now appeals.

DISCUSSION

Theory of Defense Instruction

Chavez-Becerra contends that the trial court erred in failing to instruct the jury on his theory of defense, denying him a fair trial. At trial, Chavez-Becerra requested a drug addict instruction which stated:

You are instructed that a drug addict may have a motive for testifying falsely and for falsely accusing persons of supplying him with drugs, and further, that regular use of narcotic drugs may impair the witness's capacity to observe, remember and recall. A present or former drug addict is inherently a perjurer where his own interests are concerned, because of the possibility of being rewarded by the authorities. Examples of possible rewards are the dropping of charges presently pending against the witness and the recommending of a lighter sentence for a crime of which the witness has already been convicted. An addict witness faces the immediate threat of being kept from access to the drugs to which he is addicted, as well as the prospect of a long term prison sentence. These factors substantially increase the danger that the addict may color his/her testimony so as to place guilt on a defendant.

On appeal, Chavez-Becerra contends he was entitled to this instruction or one like it concerning the inherent bias of drug informers and claims it is reversible error for the trial court to have not instructed the jury on his theory of defense. The State contends the trial court properly instructed the jury on evaluating witness credibility when it gave this instruction at the start of the trial:

You will decide which witnesses you believe and how much weight you give their testimony. In deciding what you believe, you may consider anything about a witness which tends to prove or disprove truthfulness, including the following:

1. Conduct, attitude, and manner while testifying;

2. The physical and mental capacity to have heard or seen that about which the testimony relates;

3. Ability to remember and to tell here in Court what was heard or seen 4. Reputation for honesty and truthfulness or for dishonesty and untruthfulness;

5. Whether the witness has a bias or prejudice, an interest in the outcome of the trial, or any other motive for not telling the truth; and

6. Whether the facts related are inherently believable or unbelievable[.]

A criminal defendant is entitled to have the jury instructed on a defense theory if a timely submission is made of an instruction that correctly states the law and is supported by the evidence. Bouwkamp v. State, 833 P.2d 486, 490 (Wyo.1992). The defense must be recognized by statute or case law of Wyoming. DeLeon v. State, 896 P.2d 764, 768 (Wyo.1995). Thus, instructions which do not contain a proper statement of the law are properly refused. Stapleman v. State, 680 P.2d 73, 76 (Wyo.1984).

Similarly, instructions not based on the evidence can be properly refused. While we have said even weak, inconclusive, or unworthy of belief evidence requires giving of the instructions, Stagner v. State, 842 P.2d 520, 523 (Wyo.1992), the instruction need not be given unless a reasonable person might conclude the evidence supports the defendant's position. Best v. State, 736 P.2d 739 (Wyo.1987); Stagner, 842 P.2d at 523. Evidence is to be viewed in a light favorable to the accused and taken as true to determine if evidence is competent. Stagner, 842 P.2d at 522.

It is reversible error for a trial court to refuse to give a properly requested instruction, which is supported by the evidence, contains a correct statement of law and is not otherwise covered in the instructions. Oien v. State, 797 P.2d 544, 549 (Wyo.1990). However, a defendant is not entitled to a particularly worded instruction where instructions given cover the substance of the requested instruction. Channel v. State, 592 P.2d 1145, 1151 (Wyo.1979). The court retains discretion in framing the instruction. Witt v. State, 892 P.2d 132, 142 (Wyo.1995).

Just as the trial court can properly refuse an instruction which merely rephrases the jury's obligation to find all elements beyond a reasonable doubt, Virgilio v. State, 834 P.2d 1125, 1128 (Wyo.1992), a narrative recitation of defendant's version of the facts is unacceptable and may be refused if it gives undue emphasis to defendant's version of the facts. Jansen v. State, 892 P.2d 1131, 1140 (Wyo.1995); Virgilio, 834 P.2d at 1128; Ellifritz v. State, 704 P.2d 1300, 1302 (Wyo.1985). Instructions which are clearly erroneous, confusing or unduly emphasize one aspect of the case are properly refused. Madrid v. State, 910 P.2d 1340, 1346 (Wyo.1996); Simonds v. State, 762 P.2d 1189, 1192 (Wyo.1988); Noetzelmann v. State, 721 P.2d 579, 581 (Wyo.1986). Furthermore, instructions which contain detailed descriptions of the purported evidence and inferences drawn by defense counsel have been properly refused. Jansen, 892 P.2d at 1140; Simonds, 762 P.2d at 1192. An instruction which only comments on evidence favorable to the defendant without presenting a legally cognizable defense is not a theory of the case instruction and is properly refused. Bouwkamp, 833 P.2d at 491; Phillips v. State, 760 P.2d 388, 390 (Wyo.1988). There is no duty to give a theory of defense instruction that has not been requested.

Chavez-Becerra defended himself against these charges by testifying that he was innocent and arguing that the Burtons falsely accused him in order to obtain leniency on the criminal charges pending against Louise Burton. An instruction that a drug addict is inherently a perjurer and an instruction that a drug informer who receives some benefit by his testimony has an inherent bias is not a theory of defense instruction recognized by Wyoming statute or decision. See Prime v. State, 767 P.2d 149, 154 (Wyo.1989). This Court's decision in Keser v. State, 706 P.2d 263 (Wyo.1985), listed possible defenses to criminal actions. Keser, 706 P.2d at 269. Special instructions to the jury would be appropriate if one of these defenses applied. In this case, Chavez-Becerra's claim of innocence is a failure of proof defense and, in view of this Court's past decisions...