Jackson v. State, 4310
| Decision Date | 10 June 1974 |
| Docket Number | No. 4310,4310 |
| Citation | 522 P.2d 1356 |
| Parties | Wendell William JACKSON, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below). |
| Court | Wyoming Supreme Court |
Edward P. Moriarity and Terry W. Mackey of Urbigkit, Moriarity, Halle & Mackey, Cheyenne, for appellant.
Clarence A. Brimmer, Atty. Gen., and David A. Kern, Sp. Asst. Atty. Gen., Cheyenne, for appellee.
Before PARKER, C. J., and McEWAN and GUTHRIE, JJ.
Wendell William Jackson, indicted, tried, and convicted for two offenses, possession of a controlled substance, cocaine, with intent to deliver, and unlawful delivery of a controlled substance, cocaine, to Sacarias Ramirez, in violation of §§ 35-347.16(b)(4) and 35-347.31(a)(i), W.S.1957, 1973 Cum.Supp., was sentenced, two to three years, for the offense of delivery, with no sentence for the possession. He has appealed, urging denial of a fair and impartial trial because (1) he was refused change of venue, (2) there was a break in the chain of evidence examined by the chemist who gave an opinion about the nature of the substance charged to have been unlawfully delivered, and (3) he was tried on two separate indictments arising out of the same circumstances.
Approximately three weeks before the trial, defendant filed a motion for change of venue with a supporting affidavit from his counsel, stating that just previously this counsel had represented two other defendants charged with drug violations before the same jury panel that had been called to hear the Jackson case; that during drug raids in Laramie County a special agent for the attorney general's office had been accidently shot and killed, the incident occurring in the residence of defendant Jackson's brother; that in the course of the trial of one of his above-mentioned clients, Betty Jo Boyd, she was referred to as Betty Jo Jackson, the same surname as defendant Jackson, defendant's name being brought up on numerous occasions before the jury; 1 and that these circumstances together with the panel's having been exposed to numerous drug cases during the jury term would prevent the defendant from receiving a fair and impartial trial before that specific jury panel or in Laramie County. The court reserved ruling on the motion until after voir dire of the jury at defendant's trial. Following the voir dire, counsel for the defense as well as counsel for the State was heard at some length regarding the motion for change of venue, at which time it was urged that counsel had been limited and handicapped in examination of the jurors for fear he would prejudice them in talking about the problems which he had raised in the affidavit and insisted that defendant would be prejudiced by being tried before the jurors called, pointing out among other things that three of the jurors had served on previous drug cases. The court responded that with the calling of twenty-five additional members to supplement the existing panel and according defense counsel great liberty in the extent of his voir dire for the purpose of questioning and resultant excuses for cause as well as defendant's having exercised eight peremptory challenges, there was not sufficient grounds for change of venue and denied the motion.
Defendant here concedes the general rule of law that allowance of a change of venue is ordinarily within the sound discretion of the trial court, citing State v. Hambrick, 65 Wyo. 1, 196 P.2d 661, 65 Wyo. 55, 198 P.2d 969; State v. Spears, 76 Wyo. 82, 300 P.2d 551; Crouse v. State, Wyo., 384 P.2d 321. He points out, however, that these cases were decided under statutory procedure rather than court rules and further that the present situation is distinguishable since here defendant filed an affidavit setting forth the factual contentions upon which the motion was based, and no counter-affidavits or anything in the record having contradicted defendant's affidavit, the facts stated therein must be taken as true. Even so, and assuming the statements in the affidavit to have been true, we find the circumstances asserted not to be such as to override the trial court's discretion. From the record it appears that careful consideration was given to all matters relating to the request. In Mares v. State, Wyo., 500 P.2d 530, 535, decided under the present criminal rules, we held that in order for change of venue to be granted defendant must show prejudice so great or general as to prevent his receiving a fair and impartial trial. No such showing was made here.
The argument that there was a break in the chain of evidence concerning the substance which defendant was charged to have delivered presents factors which merit some scrutiny. The basis of the challenge arises from the fact that the evidence tends to show Richard Ruybal, the chemist assigned soon after the delivery to analyze the substance in question, was not available at the time of the trial and another chemist, Michael Miller, made a second analysis and testified concerning it. The matter is complicated by the occurrence that the person claiming to have purchased the substance from defendant testified that he received two paper 'decks' 2 which he after field testing the contents (the tests indicating the substance to be cocaine) put in a plastic evidence bag, enclosed in a locked sealed evidence envelope, placed in a brown mailing envelope and sent registered mail to the Bureau of Narcotics and Dangerous Drugs, Dallas Regional Laboratory-whereas when the testifying chemist first...
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...out of two different transactions,' and therefore the defendant can be charged, tried, convicted and sentenced on each. In Jackson v. State, 522 P.2d 1356, 1359, Justice Parker set out the rule for determining the presence of double jeopardy when he '. . . The pertinent rule, although vario......
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