Pena v. State, 89-123

• Citation: 792 P.2d 1352
• Decision Date: 23 May 1990
• Docket Number: No. 89-123,89-123
• Parties: Domingo PENA, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: United States State Supreme Court of Wyoming

Page 1352

792 P.2d 1352

Domingo PENA, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 89-123.

Supreme Court of Wyoming.

May 23, 1990.

Rehearing Denied June 22, 1990.

Public Defender Program: Steven E. Weerts, and Mike Cornia, Sr. Asst. Public Defenders, and Donald K. Slaughter, Student Intern, Cheyenne, for appellant.

Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., Mary B. Guthrie, Sr. Asst. Atty. Gen., Cheyenne, for appellee.

Before CARDINE, C.J., and THOMAS, URBIGKIT, MACY and GOLDEN, JJ.

GOLDEN, Justice.

In the summer of 1988, the Wyoming Southeast Drug Enforcement Team, through informants and controlled buys, linked Pena to the sale of cocaine. The investigation culminated in a large quantity of cocaine being seized in an August 5, 1988 search of Pena's home. A jury found Pena guilty of 1) conspiracy to deliver cocaine; 2) delivery of cocaine; and 3) possession with intent to deliver cocaine. Pena, who was on parole for a previous drug conviction, received three concurrent sentences of six to eight years. Pena appeals his conviction and asserts that:

1. [T]he trial court erred in allowing Loretta Valdez to testify.

2. [T]he trial court erred in allowing the prosecution to utilize leading questions.

3. [T]he trial court erred in allowing irrelevant testimony about the perceived value of Appellant's boots.

4. [T]he trial court erred in allowing the prosecution to imply that Appellant had the burden to prove his innocence.

5. [T]he trial court judge improperly instructed the jury about Ms. Anglum's [sic] status as an alleged accomplice.

6. [T]he trial court judge should have recused himself since his impartiality could be reasonably questioned.

7. [T]he trial court erred in allowing evidence that had been obtained without a search warrant.

8. [The] cumulative error at trial warrants a reversal of Appellant's convictions.

The state, responding to the issues Pena asserts, frames them in a slightly different manner.

We affirm.

DISCUSSION

Pena claims that the trial court erred when it allowed into evidence the testimony of a Ms. Valdez. She testified that she overheard a conservation in which Pena attempted to recruit her husband into the drug trade. Pena objected to the testimony on several evidentiary grounds. The trial court overruled the objections. On appeal, it is Pena who must demonstrate that the trial court's decision to admit Valdez's testimony constituted a clear abuse of discretion. Velos v. State, 752 P.2d 411, 414 (Wyo.1988).

It was Pena's own statements which were offered against him as evidence of his intent to deliver cocaine. ¹ The adversarial nature of our justice system provides the justification for permitting a party's own statement to later be used against him. ² Pena had the right to explain, deny, or rebut the statements attributed to him by Valdez.

Pena's statements are also admissible under W.R.E. 404(b) as evidence directed at an "element of the charged offense * * * [which] is a material issue in the case." Pena v. State, 780 P.2d 316, 318 (Wyo.1989). One of the counts with which Pena was charged was possession with intent to deliver. Because intent is an essential element of the charge, ³ evidence which would tend to reveal the nature of Pena's intent vis-a-vis the delivery of cocaine is relevant. In Noetzelmann v. State, 721 P.2d 579, 582 (Wyo.1986), this court stated that "evidence of prior involvement in drug trafficking" is admissible under W.R.E. 404(b) ⁴ as proof of intent. Pena's attempt to entice another individual into the drug trade is relevant evidence ⁵ of Pena's intent to traffic in cocaine.

Pena also claims that Valdez's testimony would lead the jury to believe that Pena was a dealer. Pena claims, therefore, that the testimony was unfairly prejudicial, and inadmissible under W.R.E. 403, because it inflamed the passions of the jury and confused the issues. ⁶ We stated in Pena, 780 P.2d at 323, that "The fact that the evidence is detrimental to the defendant is neutral. For the prejudice factor to come into play the [trial] court must conclude that it is unfair." Valdez's testimony was undoubtedly prejudicial; however, Pena has not demonstrated its unfairness. Unsupported allegations that the evidence is unfairly prejudicial and should be barred are not enough. Pena believes that Valdez "had reasons for testifying other than justice: she worked for the Attorney General's office and she was jealous of the time her husband spent with [Pena]." Cross-examination is the appropriate means to expose witnesses who mingle fiction with fact or whose testimony is driven by ulterior motives. Pena had the right, which he exercised, to cross-examine Valdez. We find that Pena has not demonstrated how the trial court abused its discretion when it permitted Valdez to testify.

Pena next claims that the trial court erred when it allowed the prosecutor to use a leading question during direct examination of Anglim, who had entered into a plea agreement with the state. On direct, the state asked the witness if she was confused about the dates on which she had purchased cocaine from Pena. In phrasing the question, the state suggested alternative dates. Pena objected to the question as leading; the trial court overruled the objection.

Pena's argument that it was "impermissible" for the state to ask Anglim a leading question only gets him halfway. Whether a question is leading and, if so, whether it is permissible both involve the trial court's judgment and will not be disturbed absent an abuse of discretion. Debaca v. State, 404 P.2d 738, 739 (Wyo.1965). Leading questions are not, per se, impermissible. W.R.E. 611(c) states "[l]eading questions should not be used on the direct examination of a witness except as may be necessary to develop his testimony." The court in United States v. DeFiore, 720 F.2d 757, 764 (2nd Cir.1983) cert. denied, 467 U.S. 1241, 104 S.Ct. 3511, 82 L.Ed.2d 820 (1984), noted that Rule 611(c) contains "words of suggestion, not command." In other words, the rule grants the trial court broad discretion on whether or not to allow leading questions.

In United States v. Hewes, 729 F.2d 1302, 1325 (11th Cir.1984), cert. denied sub nom., Caldwell v. United States, 469 U.S. 1110, 105 S.Ct. 790, 83 L.Ed.2d 783 (1985), the Court said that F.R.E. 611(c) is not a bar to either side's occasional use of leading questions during direct. Pena has not established that the trial court's decision to allow the leading question was an abuse of discretion.

Pena next contends that the trial court erred when it allowed a parole officer to testify, over the defendant's relevancy objection, that the defendant had "expensive" cowboy boots in his closet. The state's case against Pena, however, did not turn on the price of his cowboy boots. (Anglim's testimony that Pena had sold her cocaine was slightly more damaging). Consequently, we find the parole officer's testimony to be harmless. Justice v. State, 775 P.2d 1002, 1010-11 (Wyo.1989).

Pena alleges that the trial court erred when it allowed the state during redirect to ask its witness, a state crime lab employee, whether the public defender had requested "purity" tests on the cocaine. Pena claims the question implied that it was the defendant's burden to prove his innocence, which allowed the state to shift the burden of proof. In overruling Pena's objection, the trial court noted that it was Pena who raised on cross-examination the issue whether additional tests had been performed on the cocaine. The trial court ruled that on redirect the state was permitted to point out that Pena also had the right to request the additional tests. The purpose of redirect is to respond to questions posed to the witness during cross-examination. Sanville v. State, 593 P.2d 1340, 1344 (Wyo.1979). We believe, therefore, that the trial court's ruling was correct.

Pena claims that the trial court improperly instructed the jury on what weight to give to the accomplice Anglim's testimony. The instruction Pena proposed used the term alleged accomplice throughout, rather than simply accomplice. The trial court refused Pena's instruction because it believed that the pattern instruction on accomplice testimony correctly stated the law. On appeal Pena argues that the instruction given failed to properly stress the difference between accomplice and alleged accomplice, which might lead the jury to believe that the defendant had already been found guilty. We disagree. The pattern instruction states that an accomplice's testimony "is always to be received with caution and weighed with great care. You should never convict a defendant upon the unsupported testimony of an alleged accomplice, unless you believe that unsupported testimony beyond a reasonable doubt." We find no material difference between the instruction Pena proposed and the pattern instruction given. The pattern instruction accurately stated the law. Sodergren v. State, 715 P.2d 170, 181 (Wyo.1986).

Pena makes the unsupported allegation that the trial judge was biased and should have recused himself. Pena made no attempt, however, to follow the correct procedure to challenge the judge. See W.R.Cr.P. 23(e). On appeal Pena urges this court to find that the trial court was biased; he does this without providing affidavits as required by Rule 23(e). We decline the invitation.

Pena alleges that the trial court erred when it allowed into evidence the cocaine which had been seized without a search warrant. The parole office received an anonymous tip that Pena was in possession of cocaine. Acting on the tip, four parole officers went to Pena's house on August 5, 1988, and told Pena of their plans to conduct a search (a narcotics detective and a police officer accompanied the parole officers). According to the parole officer, Pena's response, when informed of their plan to search, was, "Okay. Sure. Come on in." The parole officers then proceeded to...