Robison v. State

• Decision Date: 19 January 2011
• Docket Number: No. S–10–0050.,S–10–0050.
• Parties: Raymond E. ROBISON, III, Appellant (Defendant),v.The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

246 P.3d 259

2011 WY 4

Raymond E. ROBISON, III, Appellant (Defendant),

v.The STATE of Wyoming, Appellee (Plaintiff).

No. S–10–0050.

Supreme Court of Wyoming.

Jan. 19, 2011.

Representing Appellant: Diane Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel; and David E. Westling, Senior Assistant Appellate Counsel. Argument by Mr. Westling.Representing Appellee: Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Paul S. Rehurek, Senior Assistant Attorney General. Argument by Mr. Rehurek.Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.HILL, Justice.

[¶ 1] On October 5, 2009, Appellant, Raymond E. Robison, III (Robison), was found guilty, after a jury trial, of driving while under the influence of alcohol in violation of Wyo. Stat. Ann. § 31–5–233(b)(ii)(A) (LexisNexis 2007). He committed that offense on November 2, 2008. Robison appeared before the district court on November 9, 2009, for a Sentencing Enhancement Hearing pursuant to Wyo. Stat. Ann. § 31–5–233(e) (fourth or subsequent offense). On January 21, 2010, the district court entered its Sentence and Probation Order. Robison contends that the district court imposed an illegal sentence by considering a prior conviction that occurred outside the five-year time limit set by the governing statute. He also contends that trial counsel's failure to file a motion to suppress evidence obtained in connection with an illegal traffic stop constituted ineffective assistance of counsel and denied him due process of law. We will affirm.

ISSUES

[¶ 2] Robison raises these issues:

I. Did the trial court impose an illegal sentence by considering a conviction outside of the five-year time limit delineated by W.S. § 31–5–233(e) as a fourth or subsequent conviction so as to sentence [Robison] to a felony?

II. Did the failure of [Robison's] trial counsel to file a motion to suppress evidence based upon an illegal traffic stop constitute ineffective assistance of counsel and deny [him] due process of law?

The State's statement of the issues conforms to that set forth by Robison.

Ineffective Assistance of Counsel

[¶ 3] Under the circumstances of this case, the second issue raised by Robison is a threshold issue. If this Court were to conclude that Robison's counsel's assistance was ineffective, then it would require this Court to reverse that conviction. Such a conclusion would then require us to vacate the sentence imposed as well.

[¶ 4] Robison's arrest was facilitated by a Report Every Drunk Driver Immediately (REDDI) alert that was called into the Gillette Police Department by an employee of the Lariat Café and Sundance Lounge on November 2, 2008. The report was to the effect that a very drunk patron had left that establishment after he was refused service. Police were provided a description of the vehicle Robison was driving. That report was forwarded via dispatch to Gillette Police Officer Mark Kelso. He was near the Sundance Lounge and arrived on the scene as Robison was driving away in the vehicle described in the REDDI report. Officer Kelso stopped Robison. He ascertained that Robison did not have a driver's license (it was suspended). He also ascertained that Robison was intoxicated and he was placed under arrest for that reason. Officer Kelso did not observe Robison driving in a manner that would have suggested he was an impaired driver. The stop and subsequent arrest was based solely on the REDDI report.

[¶ 5] Robison's contentions with respect to this issue are based on our decision in McChesney v. State, 988 P.2d 1071, 1076–77 (Wyo.1999), wherein we held:

Here, we have the classic anonymous tip—an unidentified voice on the telephone. Because an anonymous tipster's basis of knowledge and veracity are typically unknown, anonymous tips are considered less reliable. Kaysville City v. Mulcahy, 943 P.2d 231, 235–36 (Utah App.1997). The tip of an anonymous informant is unlike that of an identified citizen-informant. The latter tips are higher on the reliability scale because an identified informant exposes himself to possible criminal and civil prosecution if the report is false. Id.; see Borgwardt v. State, 946 P.2d 805, 807 (Wyo.1997) (citizen informants are presumptively reliable sources of information). Because the anonymous tip in this case is on the low end of the reliability scale, more information is required to raise a reasonable suspicion. Alabama v. White, 496 U.S. [325] at 330–31, 110 S.Ct. [2412] at 2416 [110 L.Ed.2d 301 (1990) ] .

The REDDI tip in the instant case merely recited the color, make, and direction of travel of the McChesney vehicle. These are facts that were available to anyone traveling on I–90 west of Gillette that July morning. Corroboration of this type of information does not increase the reliability of the tip. State v. Miller, 510 N.W.2d 638, 642 (N.D.1994); Pinkney v. State, 666 So.2d 590, 592 (Fla.App.1996); Commonwealth v. Lyons, 409 Mass. 16, 564 N.E.2d 390, 393 (1990); Campbell v. State of Wash. Dept. of Licensing, 31 Wash.App. 833, 644 P.2d 1219, 1221 (1982); see 4 Wayne R. LaFave, Search and Seizure § 9.4(h), at 222, n. 391–99. Where, as here, the informant makes no prediction of future behavior indicating “inside information,” the investigating officer is required to corroborate the tip in some other fashion, usually by observing either a traffic violation or driving indicative of impairment. Pinkney v. State, 666 So.2d at 592.

This enhanced corroboration requirement stems from a number of legitimate concerns. An anonymous tip, without more, may be no more than a citizen's hunch or merely an assertion based on rumor. In addition, the potential for citizen abuse is readily apparent. Anybody with enough knowledge about a given person to make that person the target of a prank, or to harbor a grudge against that person, will certainly be able to formulate a REDDI tip. See Alabama v. White, 496 U.S. at 333, 110 S.Ct. at 2418 (Stevens, J. dissenting). In the law enforcement context, there is the danger that “an officer prompted not by a tip at all, but only by a hunch, could relay a description and license number through the dispatcher and thereby effectuate a lawful stop.” Mix v. State, 893 P.2d 1270, 1272–73 (Alaska App.1995).

In the instant case, any traveler on the highway that morning could have “predicted” the facts contained in the REDDI tip. The tip did not provide a description of the driver, the passengers, or any of their future activities. As such, the tip did not provide any “inside information” that would indicate that the tip was reliable. Even Alabama v. White was referred to as a “close case” on its facts. 496 U.S. at 332, 110 S.Ct. at 2417. The facts of this case are far less compelling. Under these circumstances, we hold that the anonymous REDDI report was not sufficient to create a reasonable suspicion to justify an investigatory stop.

Officer Will properly investigated the REDDI report when he followed McChesney as he exited the interstate, made several turns, and traveled a substantial distance. Officer Will did not observe any erratic or illegal driving. He merely observed the passengers looking back at him and the driver looking into his mirrors. Although we have adopted the doctrine that “even conduct which is wholly lawful and seemingly innocent may form the basis for a reasonable suspicion that criminal activity is afoot,” State v. Welch, 873 P.2d 601, 604 (Wyo.1994), we conclude that this conduct did not provide a reasonable suspicion in this case. First, we dismiss the driver's glances in his mirrors as inconsequential; such action is undeniably the sign of a safe driver. Likewise, the glances of the passengers are not sufficient to provide a reasonable suspicion. The district court did not find these glances particularly significant, nor do we. See State v. Kupihea, 59 Haw. 386, 581 P.2d 765, 766 (1978) (two passengers in vehicle looked back in direction of police and crouched down, not grounds for stop); Thomas v. State, 297 So.2d 850, 852 (Fla.App.1974); Parker v. State, 363 So.2d 383, 386 (Fla.App.1978); Rodriguez v. State, 578 S.W.2d 419 (Tex.Crim.App.1979). Under these circumstances, we hold that the officer's observations did not provide a reasonable suspicion for an investigatory stop.

Finally, our decision to require independent police corroboration of an anonymous REDDI report appears to be consistent with the practice of law enforcement in this state, which will not make a stop unless police observation confirms either the reported or some other illegal or suspicious activity.

Also see 1 Donald H. Nichols and Flem K. Whited III, Drinking/Driving Litigation, Criminal and Civil, § 4:2, pp. 4–142–4–200 (The anonymous tip) (wherein this subject is discussed and cases annotated at length) (2nd ed.2006).

[¶ 6] Robison asserts that his defense attorney was ineffective in not filing a motion to suppress the evidence obtained by Officer Kelso during that stop and arrest, on the basis that Kelso was acting on an anonymous tip. As set out more fully above, the tip was not anonymous. The police department received detailed information from a Sundance Lounge employee, who was identified as such to dispatch. Moreover, the vehicle described in that report was observed within minutes, if not seconds, driving away from the Sundance Lounge. The limitations on stops such as those described in McChesney are not at issue here.

[¶ 7] The standard of review we apply to an effective assistance of counsel issue is this:

[An appellant] bears the burden of proving that his trial counsel was ineffective. Rutti v. State, 2004 WY 133, ¶ ¶ 22–23, 100 P.3d 394, 405 (Wyo.2004). In addition, he must demonstrate the existence of a reasonable probability that, absent the deficiency in counsel's performance, the result of the proceedings would have been different. Id. Failure to make the required...