Deloge v. The State Of Wyo.

• Decision Date: 14 May 2010
• Docket Number: No. S-09-0117.,S-09-0117.
• Citation: 2010 WY 60,231 P.3d 862
• Parties: Steven A. DeLOGE, Appellant (Defendant),v.The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

231 P.3d 862

2010 WY 60

Steven A. DeLOGE, Appellant (Defendant),v.The STATE of Wyoming, Appellee (Plaintiff).

No. S-09-0117.

Supreme Court of Wyoming.

May 14, 2010.

Representing Appellant: Steven A. DeLoge, pro se.

Representing Appellee: Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Graham M. Smith, Assistant Attorney General.

Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.

KITE, Justice.

[¶ 1] Mr. DeLoge pro se, appeals from the district court's order dismissing his motion for return of property pursuant to W.R.Cr.P. 41(e) and closing the post-conviction matter. The court ruled that, since Mr. DeLoge's property was in the possession of officials in another state, it did not have authority to order its return to him. It also denied Mr. DeLoge's request for damages to compensate him for his loss. Mr. DeLoge additionally claims that his due process rights were violated when the State did not preserve allegedly exculpatory evidence included in the transferred property and when this Court did not waive the docket fee.

[¶ 2] We conclude that the district court properly dismissed Mr. DeLoge's Rule 41(e) motion for return of his property because the State did not have possession of it, sovereign immunity prevented the court from awarding him damages for the loss of his property, and he did not present a recognizable right to post-conviction preservation of exculpatory evidence. Finally, we conclude that Mr. DeLoge waived his claim that he should have been allowed to proceed on appeal without paying the docket fee.

[¶ 3] We affirm.

ISSUES

[¶ 4] Mr. DeLoge presents several issues on appeal. However, his accompanying argument is repetitious and confusing. After reviewing his brief, we have identified the following issues:

1. Did the district court correctly conclude that it did not have authority under W.R.Cr.P. 41(e) to compel the return of property located outside its jurisdiction?

2. Did the district court correctly conclude that it did not have authority to award Mr. DeLoge damages pursuant to W.R.Cr.P. 41(e)?

3. Was Mr. DeLoge's right to due process of law violated by the State's suppression of, or failure to preserve, allegedly exculpatory evidence?

4. Did this Court deny Mr. DeLoge due process when it required him to pay the docketing fee for his appeal?

FACTS

[¶ 5] This is Mr. DeLoge's fourth appeal to this Court. In 2000, he pleaded guilty to six counts of second degree sexual assault on his girlfriend's daughter. We affirmed his convictions and sentence in DeLoge v. State, 2002 WY 155, 55 P.3d 1233 (Wyo.2002) ( DeLoge I ).

[¶ 6] Pertinent to our decision in this case, the record indicates that in late 1999, the FBI took possession of certain items belonging to Mr. DeLoge which the Cheyenne Police Department had seized in the investigation of the sexual assault charges. The FBI returned the items to the Cheyenne Police Department on July 10 or 11, 2000. A few days later, the FBI again took possession of some of the items and transferred them to Mississippi, where they have since remained. The Mississippi authorities retained the items for use in the investigation of the disappearance of Mr. DeLoge's girlfriend (mother of the sexual assault victim).

[¶ 7] In October 2003, Mr. DeLoge filed a Motion for Preservation and Return of Seized Property pursuant to W.R.Cr.P. 41(e):

(e) Motion for return of property. A person aggrieved by an unlawful search and seizure or by the deprivation of property may move the court in which charges are pending or if charges have not been filed the court from which the warrant issued for the return of the property on the ground that such person is entitled to lawful possession of the property. The court shall receive evidence on any issue of fact necessary to the decision of the motion. If the motion is granted, the property shall be returned to the movant, although reasonable conditions may be imposed to protect access and use of the property in subsequent proceedings. If a motion for return of property is made or comes on for hearing after criminal charges have been filed, it shall be treated also as a motion to suppress under Rule 12.

[¶ 8] The district court did not rule on his motion within ninety days and Mr. DeLoge appealed, claiming the deemed denied provision of W.R.C.P. 6(c)(2) applied. We concluded that W.R.C.P. 6(c)(2) did not apply, dismissed the appeal because there was no final order and remanded to the district court for a ruling on Mr. DeLoge's Rule 41(e) motion. DeLoge v. State, 2005 WY 152, ¶ 13, 123 P.3d 573, 578 (Wyo.2005) ( DeLoge II ).

[¶ 9] On remand, the district court held a hearing. Counsel for the State orally represented that the items had been transferred to authorities in Mississippi and Washington for use in other investigations, but did not present any evidence to substantiate its representations. The district court directed the State to return Mr. DeLoge's property to the district court when the items were no longer needed by the Mississippi and Washington¹ authorities. DeLoge v. State, 2007 WY 71, ¶ 7, 156 P.3d 1004, 1007 (Wyo.2007) ( DeLoge III ).

[¶ 10] Mr. DeLoge appealed from the district court's order, and we reversed, ruling that the district court erred by failing to require the State “to submit evidence regarding the government's continuing interest in retention of Mr. DeLoge's property.” Id., ¶ 27, 156 P.3d at 1012. We remanded for an evidentiary hearing. Id., ¶ 28, 156 P.3d at 1012.

[¶ 11] The district court held a hearing on December 5, 2007. Evidence was presented indicating that Wyoming authorities had possession of some of Mr. DeLoge's property. The State offered to transfer the property in its possession to Mr. DeLoge's trial counsel. Mr. DeLoge agreed to that arrangement, and that property is not at issue in this appeal.

[¶ 12] The State presented evidence that certain items seized from Mr. DeLoge had been transferred to Mississippi in 2000, and were still in that state's custody. A letter from a Mississippi law enforcement officer indicated that they needed to retain the items for their investigation into the disappearance of Mr. DeLoge's girlfriend. The district court stated it did not believe it had authority over property outside of its jurisdiction, but ordered the district attorney to request that Mississippi authorities provide an itemized list of the property belonging to Mr. DeLoge that was in their custody. The district attorney complied, but the Mississippi officials did not respond. Concluding there was no further remedy available to Mr. DeLoge, the district attorney filed a motion to close the case.

[¶ 13] The district court held a hearing on the State's motion in March 2009. At the conclusion of the hearing, the district court granted the State's motion to close the case, ruling that it had no authority to compel Mississippi law enforcement to return Mr. DeLoge's property. After it made that ruling, Mr. DeLoge requested that the State be ordered to compensate him for the loss of his property. The district court ruled that it did not have authority to award damages to Mr. DeLoge. Subsequently, the district court entered an order closing the case and dismissing all pending motions.

[¶ 14] Mr. DeLoge again appealed and procured an order from the district court allowing him to proceed in forma pauperis. The Clerk of this Court initially refused to docket Mr. DeLoge's appeal on the basis that he had not paid the docketing fee. The fee was subsequently paid.

DISCUSSION

A. W.R.Cr.P. 41(e)

[¶ 15] Mr. DeLoge initiated this case with a motion under W.R.Cr.P. 41(e) for return of his property. The district court denied his motion and granted the State's motion to close the case, ruling that it did not have authority under Rule 41(e) to order Mississippi authorities to return Mr. DeLoge's property. The denial of a motion for return of property under Rule 41(e) is usually reviewed for abuse of discretion DeLoge III, ¶ 22, 156 P.3d at 1011. However, because the district court concluded it did not have the legal authority, i.e., jurisdiction, to order Mississippi officials to return Mr. DeLoge's property, our standard of review on this issue is de novo. See, William F. West Ranch, LLC v. Tyrrell, 2009 WY 62, ¶ 9, 206 P.3d 722, 726 (Wyo.2009); Coleman v. State, 2005 WY 69, ¶ 11, 115 P.3d 411, 413-14 (Wyo.2005).

[¶ 16] Arguing that the district court's denial of his motion for return of property was erroneous, Mr. DeLoge cites to cases regarding a court's authority over property res, seized as evidence in a criminal case which do not discuss Rule 41 or comparable rules. For example, Mr. DeLoge directs us to United States v. $79,123.49 in United States Cash and Currency, 830 F.2d 94 (7th Cir.1987). In that case, Wisconsin law enforcement seized the proceeds of an illegal drug transaction and initiated a forfeiture action. Subsequently, federal authorities filed for forfeiture of the same funds and took possession of the funds pursuant to a federal warrant. In resolving whether the state or federal authorities had authority over the funds, the Seventh Circuit Court of Appeals, ruled the court which first assumed jurisdiction over the property could exercise its jurisdiction to the exclusion of the other. Id. at 96. Although interesting, the decision in that case did not address Rule 41 and, consequently, is inapposite.

[¶ 17] Because Rule 41(e) is similar to F.R.Cr.P. 41(g),² we look to federal precedent to guide our analysis as to whether the district court had authority to order property located in Mississippi returned to Mr. DeLoge. Bromley v. State, 2009 WY 133, ¶ 18, 219 P.3d 110, 115 (Wyo.2009). As a general rule, a court does not have jurisdiction to grant a Rule 41 motion for return of the property when the evidence establishes that the governmental defendant no longer has possession of the property. Clymore v. United...