Fortner v. State

• Decision Date: 03 December 1992
• Docket Number: No. 91-256,91-256
• Citation: 843 P.2d 1139
• Parties: Lisle FORTNER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 1139

843 P.2d 1139

Lisle FORTNER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 91-256.

Supreme Court of Wyoming.

Dec. 3, 1992.

Leonard D. Munker, State Public Defender, Deborah Cornia, Appellate Counsel, and Erin A. McIntyre, Asst. Public Defender, for appellant.

Joseph B. Meyer, Atty. Gen., Sylvia L. Hackl, Deputy Atty. Gen., Barbara L. Boyer, Sr. Asst. Atty. General; D. Michael Pauling, Asst. Atty. Gen., Theodore E. Lauer, Director of the Prosecution Assistance Program, and Nancy Larned, Student Intern for the Prosecution Assistance Program, for appellee.

Before THOMAS, CARDINE, URBIGKIT ^* and GOLDEN, JJ., and JOFFE, District Judge (Ret.)

JOFFE, District Judge (Retired).

Appellant challenges his conviction for delivery of a controlled substance in violation of Wyo.Stat. § 35-7-1031(a)(ii) (1988). Finding no error in the issues he presents, we affirm.

Appellant raises the following issues for our consideration:

ISSUE I

Did extensive pre-charging delay violate Appellant's constitutional right to due process?

ISSUE II

Was Appellant denied his constitutional right to a speedy trial?

ISSUE III

Was Appellant denied his right to a fair trial by the improper remarks of the prosecutor in closing and rebuttal closing arguments?

ISSUE IV

Did the trial court err in allowing the introduction of evidence concerning prior bad acts of the Appellant?

ISSUE V

Was there sufficient evidence to sustain a conviction of the Appellant for delivery of a controlled substance?

The circumstances leading to Appellant's conviction were started into motion in November 1988 when a confidential informant approached Roxy Jelle, a resident of Gillette and sometime seller of methamphetamine. The informant requested that Jelle obtain some methamphetamine. The informant requested that Jelle obtain some methamphetamine for one Louey Williams. Unknown to Jelle, Williams was a state narcotics agent. On November 17, Williams gave $1,800 of state buy money to Jelle to purchase an ounce of methamphetamine.

Jelle spoke with Katherine Vance about obtaining the methamphetamine. Vance said that she would check around and try to find a source. She spoke with Matthew McGruder, who said he knew someone who might be able to obtain the drug for her. Vance and McGruder went to Mark Myers' residence and talked with him about getting the methamphetamine for them. Myers left his home, went to a liquor store, and made a telephone call to Appellant about obtaining the methamphetamine. Appellant told him to call back in a couple of hours.

Vance and McGruder left Myers' house and returned at about eight or nine o'clock that evening. Myers again called Appellant, and this time Appellant told him to "come on out" to his house. McGruder went by Vance's house and told her that the deal was on. Vance called Jelle and told her that they found someone to sell the methamphetamine to them. Jelle told Vance to stop by and pick up the money, which she did. Jelle kept $200 of the state buy money which was given to her by Williams and gave the remaining $1,600 to Vance to purchase the methamphetamine.

Vance picked up McGruder in her car and took him back to Myers' residence. She gave the money to Myers and McGruder, and they proceeded to Appellant's residence in Myers' pickup. Myers went into the residence and left McGruder in the pickup. Inside, Myers traded Appellant the $1,600 for an ounce of methamphetamine.

Myers and McGruder returned to Myers' residence. There, Myers, McGruder, and Vance all "sampled" the methamphetamine and weighed it. Vance took the methamphetamine to Jelle, who gave it to Williams.

Jelle, Vance, Myers, and McGruder were each convicted for their roles in the conspiracy which resulted in the delivery of the methamphetamine to Officer Williams. Each of them testified against Appellant at his trial for delivery of a controlled substance in exchange for a favorable consideration by the prosecution in their own cases. Appellant was convicted and received a sentence of not less than one year nor more than five years in the Wyoming State Penitentiary, along with a $1,000 fine and a $50 surcharge for "victims of crimes." He took timely appeal from the court's judgment and sentence.

Precharging Delay

In his first issue, Appellant contends that his right to due process was violated by the extensive delay between the date his crime was committed, November 17, 1988, and the date the criminal complaint was filed, December 17, 1990. Appellant contends that this twenty-five-month delay was an intentional device used by the prosecutor to gain tactical advantage over him. He further asserts that he was substantially prejudiced by the delay. Our review of the relevant law and the facts of this case convinces us that Appellant has not made a sufficient showing of either prejudice or tactical prosecutorial delay. Accordingly, we hold that his right to due process was not violated by precharging delay.

Wyoming is one of only two states which has no statute of limitations for any criminal offense. Story v. State, 721 P.2d 1020 (Wyo.), cert. denied, 479 U.S. 962, 107 S.Ct. 459, 93 L.Ed.2d 405 (1986). When no statute of limitations pertaining to a criminal offense has been adopted, prosecution for such offense may be commenced at any time during the offender's lifetime. Id. at 1026. We have recognized, however, that there are limits to the prosecution's ability to bring charges at the end of a long interval after the charged offense has occurred. Excessive precharging delay may violate a defendant's right to due process under the United States and Wyoming Constitutions. Id. at 1027.

In Story, we adopted the rule in United States v. Marion, 404 U.S. 307, 323-26, 92 S.Ct. 455, 465-66, 30 L.Ed.2d 468 (1971), and United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977), that a defendant is denied due process because of precharging delay where

the prosecutor delays filing charges to gain a tactical advantage, perhaps where the prosecutor acts in bad faith in delaying the filing of charges, and where substantial prejudice results from the delay.

Story, 721 P.2d at 1028 (emphasis in Story ).

Wyoming has taken a conjunctive approach to the Marion rule which requires the defendant to establish both an improper prosecutorial motivation which caused the delay and substantial prejudice resulting from it. Cf. State v. Gonzales, 110 N.M. 218, 794 P.2d 361, 363-67 (Ct.App.1990), aff'd as modified, 111 N.M. 363, 805 P.2d 630 (1991) (discussing the "conjunctive" and "balancing" approaches to the Marion test.)

Appellant asserts that both of these elements are present in his case. We address first the issue of whether Appellant was substantially prejudiced by the delay. Appellant claims that he suffered prejudice because during the precharging delay period he lost a box of business records which would have helped him develop an alibi defense. He also claims to have lost contact with his roommate during this period, who was a potential alibi witness.

Appellant testified at a motion-to-dismiss hearing that he had the business records in February 1989 but lost them sometime after that time--when, exactly, he did not know. His attorney at the time advised him to keep the records after another drug case against him had been dismissed without prejudice. However, he lost them. After this case was filed, he looked everywhere but simply could not find them. Appellant argues that, had the prosecution brought this case earlier, he could have used these records to provide himself with an alibi defense.

In the appropriate case, the loss or destruction of essential, exculpatory records after many years might provide a claim of prejudice due to prosecutorial delay. Given enough time, any record may unavoidably be lost to the defendant's prejudice. However, this is not such a case. First of all, the loss of these records was caused not by the delay but by Appellant's own carelessness. He simply misplaced the records even though his attorney told him to keep them. Second, this is not a case where it was unreasonable to expect Appellant to keep the records until the date the information was actually filed. Appellant testified that he was keeping these records for tax purposes. We can take judicial notice that records kept for tax purposes must be kept for several years in case of an audit.

Appellant also claims prejudice because he can no longer find his roommate, who, he says, could have helped him support an alibi defense. However, Appellant has not claimed that the roommate would definitely support an alibi defense, only that he might if he could be found. This falls somewhat short of being actual prejudice.

Finally, Appellant claims that the delay caused the prosecution's witnesses to lose their memories of the events in question, to his substantial prejudice. It is difficult to see how Appellant was prejudiced by these memory lapses, assuming they were caused by the delay. When it is the prosecution's witnesses who have suffered memory losses, the State is prejudiced at least as much as, or more than, the defendant.

"[D]elay is a two-edged sword. It is the Government that bears the burden of proving its case beyond a reasonable doubt. The passage of time may make it difficult or impossible for the Government to carry this burden."

State v. Mouser, 806 P.2d 330, 337 (Alaska Ct.App.1991) (quoting United States v. Loud Hawk, 474 U.S. 302, 315, 106 S.Ct. 648, 656, 88 L.Ed.2d 640 (1986)).

Furthermore, the memory lapses Appellant cites mostly concern minor contradictions between the witnesses on the events surrounding the transaction, such as the weather on the night in question. The question of whether the State's witnesses remained credible despite these inconsistencies was for the jury to determine, and the jury decided this question against Appellant.

Although it is not strictly necessary to do so since we hold that Appe...