Lee v. State, 98-182.

• Decision Date: 03 April 2000
• Docket Number: No. 98-182.,98-182.
• Citation: 2 P.3d 517
• Parties: Robert LEE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

2 P.3d 517

Robert LEE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 98-182.

Supreme Court of Wyoming.

April 3, 2000.

Representing Appellant: John D. Fadala, Casper, Wyoming.

Representing Appellee: Gay Woodhouse, Acting Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Georgia L. Tibbetts, Senior Assistant Attorney General, Cheyenne, Wyoming.

Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN, and HILL, JJ.

THOMAS, Justice.

The primary issue asserted by Robert Lee (Lee) in this appeal is that the district court committed reversible error by not suppressing evidence obtained in a search conducted pursuant to a warrant. Lee's justification for suppression is that the State could not tell him where to find the person who furnished the information relied upon to obtain the warrant. In addition, Lee asserts error in admitting a prior conviction into evidence for purposes of impeachment upon cross-examination. Lee argues that the conviction antedated the time limit found in W.R.E. 609. He also asserts error in not applying the best evidence rule to require the State to produce a recording of his interview by officers in Arizona. As a final matter, Lee objects to the award of the expenses of his presentence confinement to the county. We are satisfied that no error occurred in connection with Lee's prosecution, other than the award of the expenses of presentence confinement. The Judgment and Sentence entered in the district court is affirmed except for the award of the expenses of presentence confinement. The case is remanded to the district court for the purpose of amending the Judgment and Sentence to delete that aspect of the award of restitution.

This statement of the issues is found in the Brief of Appellant:

I.

Did the trial judge abuse his discretion when he failed to suppress the evidence obtained through execution of the search warrant, where neither the informant nor his location were provided by the prosecution, and where the officer did not verify the information provided by the informant?

II.

Did the trial judge abuse his discretion by allowing into evidence the Defendant's prior conviction, which was more than ten years old?

III.

Was the best evidence rule violated in this case?

IV.

Did the trial judge err in assessing incarceration costs by requiring the Defendant to pay $11,139.00?

This Statement of the Issues is found in the Brief of Appellee:

I. Did the district court properly deny appellant's motion to suppress the evidence seized by law enforcement during a search of his residence pursuant to a warrant?

II. Was it prejudicial error for the district court to allow the State to cross-examine appellant about his prior conviction?

III. Was the "best evidence rule" violated in this case?

IV. Did the district court err in ordering appellant to pay $11,139.00 in restitution to the Natrona County Detention Center for incarceration costs?

In October of 1996, detention personnel at the Natrona County Detention Center contacted a special agent with the Wyoming Division of Criminal Investigation. The detention personnel reported that an individual who was being held in detention for property destruction had requested to speak with a law enforcement officer. The special agent interviewed the informant and the special agent was told that Lee possessed firearms and was involved in illegal drug activities. The informant told the special agent about his involvement with Lee in drug deliveries in June of 1996 in Reno Nevada; in July of 1996 in Wendover, Utah; in September of 1996 in Reno, Nevada; and in October of 1996 in Casper. The informant provided information specifically identifying hotels, vehicles, physical descriptions of other individuals involved, locations of the drugs, and descriptions of the packages containing the drugs.

In connection with the transaction in Casper, the informant told the special agent of a conversation between Lee and another drug trafficker that detailed Lee's next transaction. The informant was more fluent in Spanish than in English, but he said he believed Lee was suspicious of his relationship with the police and was discussing this with the other drug trafficker. After that conversation, Lee had gone to his bedroom and returned with a bag containing three firearms, a .22 caliber Derringer and two silver semi-automatic .45 caliber pistols. Lee kept one of the .45 caliber pistols, put the other two weapons away, and told the informant to go to sleep. The informant believed that Lee would kill him if he slept, and he stayed awake through the night, leaving the house the following morning. He called the police for assistance and they ultimately took him to the Rescue Mission. The special agent quoted the information furnished by the informant in an affidavit prepared to obtain a search warrant. On October 11, 1996, the special agent showed the informant a photograph of the house that Lee owned and occupied. The informant told the special agent that he had stayed at that house on the evening of October 2, 1996. The special agent interviewed the officer who had taken the informant to the Rescue Mission, and the officer stated that the informant was very excited and appeared to be frightened. Three days later, the informant positively identified Lee from a recent picture of Lee that the special agent showed him. In investigating Lee's background, the special agent learned that Lee had been convicted of robbery and conspiracy to commit robbery in May of 1982.

Based upon all of this information which was included in his affidavit, the special agent obtained a search warrant for Lee's residence. When the search warrant was executed, drug paraphernalia, methamphetamine and marijuana, and assorted ammunition located at various places throughout the house were seized. Lee was charged with two counts of felony possession of a controlled substance and two counts of possession of a controlled substance with the intent to deliver, all in violation of Wyo. Stat. Ann. § 35-7-1031 (Michie 1997). Lee was arrested on March 12, 1997 in Phoenix, Arizona, and two law enforcement agents from Wyoming, together with law enforcement personnel from Arizona, interviewed Lee. Although Lee was the sole owner and occupant of the residence, he denied knowledge of the illegal drugs and the other items found there. He also told the officers, "[m]y dealings in drugs aren't half of what people think they are." Lee's vehicle was searched in Arizona, and fifteen additional pounds of methamphetamine were seized. Lee's testimony at trial was different from his previous admissions. At trial, he denied knowledge of the drugs found at his Casper residence, and he also denied statements he had made to the agents concerning his drug dealings. Lee testified that the residence was occupied by another person who also owned the drugs and paraphernalia found by the police. He stated that the ammunition was part of a collection, and the scales that were found were used in his dart making activities. Lee filed several motions, including two motions to suppress, prior to his trial. The first motion to suppress was directed at evidence obtained during the search of his residence on October 14, 1996, and the second motion to suppress was directed at his statements to the agents because he asserted he did not knowingly and intelligently waive his right to silence. The district court held a hearing on the motions to suppress on November 7, 1997, and after hearing the testimony presented, the district court denied both motions. Lee was tried beginning on November 17, 1997, and the jury returned verdicts of guilty on all four counts with which Lee had been charged. Lee subsequently was sentenced to ninety to one hundred and twenty months on Count II of the Information which was imposed to run concurrently with a sentence of not less than thirty months nor more than sixty months on Count I of the Information. Those sentences were imposed to run consecutively to a sentence of not less than seventy-two months nor more than one hundred and twenty months on Count IV which was imposed to run concurrently with the sentence of not less than thirty months nor more than sixty months on Count III. Credit for pretrial confinement was granted with respect to Counts I and II, and the district court ordered a payment of $50.00 to the Victim's Compensation Fund and required Lee to pay $11,139.00 for restitution to the Natrona County Detention Center. Lee appeals from the Judgment and Sentence.

The focus of Lee's attack upon the order denying his motion to suppress the evidence obtained when the search warrant was executed is that he was denied the opportunity to verify the information upon which the law enforcement officers relied. Abuse of discretion is the standard by which we review an order denying a motion to suppress. Hall v. State, 911 P.2d 1364, 1367 (Wyo.1996). We have settled upon this definition of judicial discretion:

"Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means a sound judgment exercised with regard to what is right under the circumstances and without doing so arbitrarily or capriciously. Byerly v. Madsen, 41 Wash.App. 495, 704 P.2d 1236 (1985)."

Vaughn v. State, 962 P.2d 149, 151 (Wyo. 1998) (quoting Martin v. State, 720 P.2d 894, 897 (Wyo.1986)

). The trial court is the fact finder with respect to a motion to suppress, and deference is afforded to the opportunity of the trial court to assess the credibility of witnesses, weigh the evidence, and make necessary inferences, deductions, and conclusions. Hall, 911 P.2d at 1367 (citing United States v. Werking, 915 F.2d 1404, 1406 (10th Cir.1990)). The evidence at the suppression hearing is to be viewed in the light most favorable to the trial court and the factual rulings will not be disturbed unless they prove...