Fennell v. State, S–14–0239.

• Court: United States State Supreme Court of Wyoming
• Citation: 2015 WY 67,350 P.3d 710
• Docket Number: No. S–14–0239.,S–14–0239.
• Parties: Ryon Termaine FENNELL, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Decision Date: 12 May 2015

350 P.3d 710
2015 WY 67

Ryon Termaine FENNELL, Appellant (Defendant)
v.
The STATE of Wyoming, Appellee (Plaintiff).

No. S–14–0239.

Supreme Court of Wyoming.

May 12, 2015.

350 P.3d 714

Representing Appellant: Office of the Public Defender: Diane M. Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel. Argument by Ms. Olson.

Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Jenny L. Craig, Senior Assistant Attorney General; Jeremy A. Gross, Assistant Attorney General. Argument by Mr. Gross.

Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, JJ.

Opinion

KITE, Justice.

¶ 1] A jury found Ryon Termaine Fennell guilty of three counts of delivery of cocaine. He appeals from the judgment and sentence, asserting the prosecutor committed misconduct when he elicited improper testimony and called an improper rebuttal witness; he was denied his right to confrontation when law enforcement officers were allowed to testify concerning results of tests conducted by others; his trial counsel was ineffective; and there was insufficient evidence to sustain his conviction. Concluding that trial counsel's performance was ineffective and Mr. Fennell was prejudiced thereby, we reverse the conviction and remand for a new trial.

ISSUES

[¶ 2] We re-phrase Mr. Fennell's statement of the issues and address them in the following order:

1. Whether the evidence was sufficient to sustain Mr. Fennell's conviction;

2. Whether Mr. Fennell was denied his right to confrontation when law enforcement officers testified about results of tests conducted by others;

3. Whether the prosecutor committed misconduct by improperly eliciting testimony that invaded the province of the jury and calling an improper rebuttal witness; and

4. Whether Mr. Fennell's trial counsel was ineffective.

FACTS

[¶ 3] In the fall of 2012, Jeff Wheeler, an employee of Goofy's Bar in Cheyenne, Wyoming,

[350 P.3d 715

approached a Cheyenne police officer, informed him there were illegal drugs running through the bar and offered to assist law enforcement in addressing the problem. The officer put Mr. Wheeler in touch with the Wyoming Department of Criminal Investigation (DCI) and a plan was developed to use Mr. Wheeler as a confidential informant to purchase drugs from those involved. On three separate occasions that fall, Mr. Wheeler arranged meetings with Mr. Fennell and returned from those meetings with cocaine. On each occasion, law enforcement searched Mr. Wheeler and his vehicle, provided him with cash and a concealed recording device and followed him to the pre-arranged location for the buy. After each buy, law enforcement followed him to the DCI office, retrieved the purchased substance from him, searched him and his car, and debriefed him about what had transpired. Laboratory tests performed on the substances obtained from each purchase were positive for the presence of cocaine. In March 2013, the Laramie County district attorney's office issued an information charging Mr. Fennell with three counts of delivery of cocaine in violation of Wyo. Stat. Ann. § 35–7–1031(a)(i) (LexisNexis 2013).¹

¶ 4] A two day jury trial was held in December 2013. The State presented testimony from the confidential informant and three law enforcement officials involved in the investigation. Mr. Fennell testified in his own defense and denied that he sold controlled substances to the informant. He said the informant owed him money and the meetings between them were for the purpose of getting paid back. His theory was that the informant set him up in order to avoid having to pay back the money he owed.

[¶ 5] The jury found Mr. Fennell guilty on all three counts of delivering cocaine. The district court sentenced him to serve eighteen to thirty-six months on the first count and four to six years on the second and third counts, but suspended the latter two sentences and imposed a period of probation to continue for three years after completion of the sentence on the first count. Mr. Fennell appealed.

DISCUSSION

1. Sufficiency of the Evidence

[¶ 6] We have said:

The Double Jeopardy Clause precludes a second trial once a reviewing court has found the evidence presented in the first trial legally insufficient to support the conviction. Tanner v. State, 2002 WY 170, ¶ 17, 57 P.3d 1242, 1247 (Wyo.2002) ; Burks v. United States, 437 U.S. 1, 18, 98 S.Ct. 2141, 2150, 57 L.Ed.2d 1 (1978). The only “just” remedy available upon such a finding is an order directing entry of a judgment of acquittal. Id. Thus, a finding that the State presented insufficient evidence to support the jury's guilty verdict ... would fully resolve this case and we begin by considering that issue.

Ken v. State, 2011 WY 167, ¶ 17, 267 P.3d 567, 572 (Wyo.2011).

[¶ 7] Mr. Fennell contends the evidence was insufficient to support his conviction because no qualified witness testified that the substance the informant gave to law enforcement fit within the definition of a Schedule II controlled substance. Mr. Fennell asserts the legislature has adopted a precise scientific definition of Schedule II substances, and the State was required to present a qualified witness to testify that the substance in this case was subjected to reliable testing demonstrating that it was in fact a Schedule II substance, cocaine.

[¶ 8] The following standards govern our review of a sufficiency of the evidence claim:

[W]e examine and accept as true the State's evidence and all reasonable inferences which can be drawn from it. We do not consider conflicting evidence presented by the defendant. We do not substitute our judgment for that of the jury; rather, we determine whether a jury could have reasonably concluded each of the elements

[350 P.3d 716

of the crime was proven beyond a reasonable doubt.

Ken, ¶ 19, 267 P.3d at 572, quoting Daves v. State, 2011 WY 47, ¶ 30, 249 P.3d 250, 259 (Wyo.2011).

¶ 9] The evidence relating to the testing of the substance consisted of the testimony of three law enforcement officials. First, the State presented the testimony of Special Agent Joe Brock of the United States Drug Enforcement Administration (DEA). He testified that “we” performed a field test on the substance and then submitted it to the state crime lab. Agent Brock did not testify about the results of either the field test or the lab test. The State also called Agent Jason Moon from DCI who testified that “Agent Edwards and I believe Agent Brock” field tested the substance and then he took it to the state crime lab for analysis. He testified without objection that the substance tested positive for cocaine. Finally, the State presented the testimony of Officer Aaron Wilmarth of the Cheyenne Police Department. He testified that the substance was field tested and sent to the state crime lab. He also testified, again without objection, that the test showed the substance “contained cocaine, which is a Schedule II drug.”

[¶ 10] It appears that none of the State's witnesses performed the actual laboratory tests that confirmed the substance was cocaine. It is not entirely clear from the record whether any of the witnesses personally performed any of the field tests. It is clear that the two witnesses who testified that the substance tested positive for cocaine, Agent Moon and Officer Wilmarth, did not perform the actual testing. Absent testimony from a witness who actually performed the field or lab tests and concluded the substance was cocaine, a Schedule II drug, any testimony concerning the tests or the results of the tests was inadmissible hearsay. However, defense counsel did not object to any of the testimony concerning the testing. We long ago held that when inadmissible hearsay evidence is admitted without objection, the trier of fact may give it the weight to which it is entitled. State ex rel. Benham v. Cheever, 71 Wyo. 303, 311, 257 P.2d 337, 340 (1953).

See also Gore v. Sherard, 2002 WY 114, ¶ 18, 50 P.3d 705, 711 (Wyo.2002) (Hearsay evidence admitted without objection may be considered and given its natural probative effect.) The jury properly considered the testimony that the substance tested positive for cocaine, a Schedule II substance, and gave it the weight to which it was entitled. The evidence was sufficient to support the conviction.

2. Right to Confrontation

[¶ 11] Mr. Fennell contends he was denied his right to confront the witnesses against him when law enforcement officers testified concerning the results of laboratory tests performed by other individuals who did not testify. Specifically, he points to the testimony of Agent Moon and Officer Wilmarth that the substance in the bags obtained from the informant tested positive for cocaine and no fingerprints were found on the bags. Neither witness performed the laboratory testing; rather, testing of the substance and for fingerprints on the bags was done by individuals who did not testify at the trial. As with Mr. Fennell's claims of prosecutorial misconduct, we review his confrontation claim for plain error because defense counsel did not object to the testimony.

[¶ 12] The State responds that Mr. Fennell cannot establish plain error with respect to the drug testing because the record does not clearly show that the witnesses who testified the substance was cocaine were not involved in the field tests. The State also...