Jackson v. State

• Decision Date: 22 January 1981
• Docket Number: No. 5317,5317
• Citation: 624 P.2d 751
• Parties: Wendell JACKSON, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 751

624 P.2d 751

Wendell JACKSON, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).

No. 5317.

Supreme Court of Wyoming.

Jan. 22, 1981.

Philip P. Whynott, Cheyenne, on brief, for appellant; Mary Kennedy, Cheyenne, argued.

John D. Troughton, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Crim. Div., and Allen C. Johnson, Senior Asst. Atty. Gen., Cheyenne (argued), on brief, for appellee.

Before ROSE, C. J., ^* McCLINTOCK, RAPER ^** and THOMAS, JJ., and GUTHRIE, ^*** J., retired.

GUTHRIE, Justice, Retired.

Appellant was convicted of four counts of delivery of a controlled substance. These charges involve the delivery of heroin on July 14 and 21 and of cocaine on July 21 and 22. All in 1978. These deliveries were made to an informant who shall hereafter only be referred to as X throughout this opinion.

Appellant seeks reversal of these convictions for the reasons which are set out as follows:

1. "It was error for the trial court to admit the alleged to (sic) pre-recording of the transactions into evidence."

2. "Appellant cannot be convicted of delivering cocaine unless the state has proved beyond a reasonable doubt that the substances tested by the state's chemist are a form of cocaine that is either a derivative of coca leaves or a substance chemically equivalent or identical to such a derivative."

3. "It was reversible error for the trial court to deny Appellant the use, at state expense, of a chemist and private investigator."

4. "It was error to prohibit Appellant from inquiring of ... (State's expert witness) as to his academic training."

5. "It was reversible error for the trial court to refuse to instruct the jury on Appellant's theory of the case."

We find no basis for reversal based upon these contentions.

Because of the posture of this case and the manner of its presentation, it appears proper to avoid needless repetition in our decision herein covering the points upon which the appellant seeks reversal to set out that error alone is not a basis for reversal but must affect substantial rights to be the basis therefor. Rule 49(a), W.R.Cr.P., and Rule 7.04, W.R.A.P. Additionally, it is the burden of appellant seeking reversal to demonstrate and establish the prejudice claimed. Nimmo v. State, Wyo., 603 P.2d 386, 393 (1979); Cosco v. State, Wyo., 503 P.2d 1403, 1406 (1972), certiorari denied 411 U.S. 971, 93 S.Ct. 2164, 36 L.Ed.2d 693 (1973); Kennedy v. State, Wyo., 559 P.2d 1014, 1018 (1977).

Generally, discretionary rulings of a trial judge are not reversible error unless a clear abuse of discretion is shown. Deeter v. State, Wyo., 500 P.2d 68, 71 (1972). A trial court is granted a reasonable discretion concerning the admissibility of evidence and error cannot be based thereon, absent an abuse of discretion. Reeder v. State, Wyo., 515 P.2d 969, 973 (1973), mandamus denied 419 U.S. 1018, 95 S.Ct. 509, 42 L.Ed.2d 303 (1974); Daellenbach v. State, Wyo., 562 P.2d 679, 682 (1977); Peterson v. State, Wyo., 586 P.2d 144, 154 (1978).

These last authorities are particularly applicable to the points numbered one and four.

Admission of the Tapes

The tapes to which objection is made were those containing conversations between Jackson and X, obtained by the use of a microphone taped to X's body and also included some telephone conversations.

It is most difficult to determine just what is the basis of appellant's complaint in connection with the reception of the tapes because of the manner in which it is presented. In his attack on their admission, he first asserts that they should be suppressed because they were taken in violation of §§ 37-12-112 ^* and 37-12-125, W.S.1977. Additionally, he contends the recording of the telephone conversations violated the provisions of the Mountain States Telephone and Telegraph Company General Exchange Tariff, a copy of which does not appear to be in the record. Further, he claims that the transmissions of the body mike violated 47 U.S.C. 301 and 47 U.S.C. 153(b) and (c), because the parties did not possess a valid radio license. He, also, makes assertion that the tapes contained reference to possible criminal conduct which was not the subject of the matter before the court. He further asserts that the use of these tapes is a form of note-taking which violates the provisions of § 1-11-209, W.S.1977.

The position that these tapes were inadmissible because of the violation of the Wyoming statutes, the General Exchange Tariff of the telephone company, and the federal statutes, all before mentioned, is not buttressed by any cogent or applicable authority or argument. ¹ This court has many times repeated the necessity that an appellant support a claim of error by authority or cogent argument. Chernichwan v. State, Wyo., 594 P.2d 464, 470 (1979); Otte v. State, Wyo., 563 P.2d 1361, 1363 (1977); Scherling v. Kilgore, Wyo., 599 P.2d 1352, 1359 (1979).

The appellant's statement that "possible criminal conduct," is contained in the tapes and supported only by the assertion that this is error is totally insufficient. There is no attempt made to indicate the nature of the reference. We have no idea to what he is referring. This emphasizes the applicability of the rule of requiring cogent argument and applicable authorities. This is not presented in a manner which complies with the requirements of Rule 5.01, W.R.A.P., because it fails to include "a statement of the facts relevant to the issues presented by review, with appropriate page references to the record." We cannot consider this.

The contention as to the violation of § 1-11-209, W.S.1977, is not only unsupported by authority but is more unique than logical and is not worthy of further mention.

He further asserts that these tapes are largely unintelligible and the matters thereon could not be understood. He nowhere states the nature of the omitted material or alleges that it was favorable to him. Without seeming to be facetious and without appearing to take this lightly, this writer finds it hard to believe that a juror might be prejudiced by what he did not hear.

It was proper to admit the tapes unless they were so unintelligible as to render them untrustworthy. The decision rests within the discretion of the trial judge. People v. Karrala, 35 Mich.App. 541, 192 N.W.2d 676, 679 (1971); see also 57 A.L.R.3d 746, note entitled "Admissibility of Inaudible Sound Recordings."

The argument is made in appellant's brief to sustain his contention of error that the admission of these tapes was governed by Rule 403, W.R.E. With this we have no argument but are unable to see how appellant found solace therein because this rule vests a discretion in the trial court to exclude relevant evidence, "if its probative value is substantially outweighed by the danger of unfair prejudice." In Key v. State, Wyo., 616 P.2d 774, 775 (1980), this court recognized that Rule 403, supra, did not change the standard of review to be followed by this court and that rulings thereunder would not be reversed absent a clear showing of abuse of discretion. Appellant makes no such showing of abuse.

Cross-examination of Expert Witness

The trial court refused to allow defendant's counsel to cross-examine the expert witness appearing for the State upon the grades which he received from the University of Wyoming where he was doing postgraduate work, the last of which grades were awarded to him some 121/2 years before.

An expert is subject to a broad area of cross-examination to determine his expertise and questions which are fairly designed to test his expertise and to determine his qualifications and knowledge. Chrysler Corporation v. Todorovich, Wyo., 580 P.2d 1123, 1133 (1978). Even where this rule prevails, the area of cross-examination must remain within the discretion of the trial court. State v. Vennard, 159 Conn. 385, 270 A.2d 837, 844 (1970). The rule and reason therefor is set out in that case as follows:

"... One of the purposes of the cross-examination of an expert is to test his qualifications and credibility, and the trial court has broad discretion in determining whether a given question satisfies this purpose...." See also United States v. Wainright, 10 Cir., 413 F.2d 796, 801 (1969), certiorari denied 396 U.S. 1009, 90 S.Ct. 566, 24 L.Ed.2d 501, affirmed Wainright v. United States, 10 Cir., 448 F.2d 984; and 2 Jones on Evidence, § 14:30, p. 668 (6th Ed.).

Conceding arguendo that such evidence was relevant, the trial judge might have based his ruling upon Rule 403, supra. This evidence was so remote, it could be questionable and could tend to mislead and confuse a jury who might not well understand the grading system or its effect. This writer would personally question if the inquiry might be aimed at harassment of a witness rather than a search for qualifications. ²

A trial court's discretion in limiting cross-examination "will not be disturbed unless clearly prejudicial." Nimmo v. State, supra, 603 P.2d at 393.

The writer must also observe that there is not a suggestion of any authority argued or cited that such an inquiry was proper or that to refuse it would be error. In absence of such citation of authority, we must assume appellant found no such authority. Nation v. State ex rel. Fire Fighters Local 279, I.A.F.F., Wyo., 518 P.2d 931, 933 (1974), with cited authorities. Appellant has in no manner sustained his burden of establishing error.

Refusal to Appoint Investigator and Chemist at State's Expense

In pursuit of his contention that it was reversible error for the court to deny the appellant the use at State expense of a chemist and private investigator, appellant claims that this refusal violated various provisions of the Constitutions of this State and of the United States including the due process and equal protection provisions. We cannot reach these contentions. It would be entirely improper to explore the constitutionality of the court's order because of the manner in which it is...