LeBeau v. State
| Decision Date | 31 January 1979 |
| Docket Number | No. 4965,4965 |
| Citation | 589 P.2d 1292 |
| Parties | Bennie E. LeBEAU, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below). |
| Court | Wyoming Supreme Court |
Gerald M. Gallivan, Director (argued), Wyoming Defender Aid Program, Laramie and Kenneth M. Koski, Senior Law Student, Student Intern, Wyoming Defender Aid Program, University of Wyoming, for appellant.
John J. Rooney, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen. and Sandra K. Dunn, Legal Intern (argued), for appellee.
Before RAPER, C. J., McCLINTOCK, THOMAS and ROSE, JJ., and GUTHRIE, J., Retired *.
Appellant-defendant was tried and convicted of two counts of delivery of a controlled substance in violation of § 35-7-1031, W.S.1977. He appeals from the judgment and sentence of the district court on two grounds:
I. The trial court committed reversible error in refusing the cautionary instruction offered by defendant concerning testimony given by the undercover agent.
II. There was a break in the chain of custody concerning the green plant material; the admission of this evidence was prejudicial to defendant.
The nature of the issues requires only the most superficial discussion of the facts. Suffice it to say that defendant was convicted on the strength of testimony of an undercover police officer who was hired for the specific purpose of uncovering drug trafficking in Lander, Wyoming. The undercover officer purchased green plant material from defendant which was tested at the Riverton Family Practice Center for positive identification. While the individual who tested the samples testified that he did not have the marijuana samples within his eyesight and in his immediate possession at all times, they were kept in the laboratory all the time. None of the testimony brought to light any circumstance or occurrence which suggested tampering or any other irregularity with regard to the marijuana samples.
The offered instruction was:
"Great care should be exercised in weighing the testimony of a witness who was specially employed to procure evidence against a defendant; more care than in the case of a witness who is a regular police officer or who is wholly disinterested."
The evidence is that the police officer working undercover was a regular member of the Lander police department, though his assignment was undercover work. Prior to being employed by the Lander department he had been a police officer of the Dubois police department. His background included police experience as a member of the police departments of Eveleth, Minnesota and Kinney, Minnesota. He had been specially trained in the identification of controlled substances and drugs at the University of Minnesota in Duluth, Minnesota, under the sponsorship of the Federal Drug Enforcement Administration.
In Jenkins v. State, 1913, 22 Wyo. 34, 134 P. 260, reh. den. 135 P. 749, this court stated the rule to be that a cautionary instruction is "sometimes" given when "informers, detectives or other persons especially employed to hunt up evidence testified in the case." In that opinion, the court said that since no such individual had testified at the trial, the district judge was justified in not giving such an instruction. The general rule is that:
1 Devitt and Blackmar Federal Jury Practice and Instructions, 3rd Ed. (1977), § 17.02 and cases there cited. For an excellent history of the rule, comparatively new, see Fresneda v. State, Alas.1971, 483 P.2d 1011. That court wisely cautions that every person coming forward to aid in the apprehension of criminals should not be singled out for use of the instruction:
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State v. Davis
...possibility or speculation that evidence could have been tampered with does not constitute sufficient ground for exclusion. Le Beau v. State, 589 P.2d 1292 (Wyo.1979). A different case may have been presented had tangible deficiencies or potential improprieties been developed at trial. The ......
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State v. Bradshaw
...to suggest tampering, proffered evidence is admissible if the chain of evidence is otherwise adequately established. Lebeau v. State, Wyo., 589 P.2d 1292 (1979); State v. Davis, 110 Ariz. 51, 514 P.2d 1239 (1973); Sparks v. State, 89 Nev. 84, 506 P.2d 1260 (1973). A weak link in the chain a......
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Finley v. Terry
...been tampered with does not constitute sufficient ground for exclusion.Davis, 164 W. Va. at 789, 266 S.E.2d at 913 (citing Le Beau v. State, 589 P.2d 1292 (Wyo.1979) (footnote omitted)). This Court has held that "[a] trial court's evidentiary rulings . . . are subject to review under an abu......
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Ostrowski v. State, s. 5781
...cites Jackson v. State, Wyo., 522 P.2d 1356 (1974) as authority for such a foundation requirement. Since then, in LeBeau v. State, Wyo., 589 P.2d 1292 (1979), and Escobedo v. State, Wyo., 580 P.2d 655 (1978), we have recognized the requirement that proper foundation for the admission into e......