Saldana v. State

• Decision Date: 28 January 1993
• Docket Number: No. 90-24,90-24
• Citation: 846 P.2d 604
• Parties: Maro SALDANA, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 604

846 P.2d 604

Maro SALDANA, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 90-24.

Supreme Court of Wyoming.

Jan. 28, 1993.

Rehearing Denied Feb. 24, 1993.

Wyoming Public Defender Program: Leonard D. Munker, State Public Defender, Steven E. Weerts, Sr. Asst. Public Defender, Mike Cornia, Appellate Counsel, for appellant.

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

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

THOMAS, Justice.

The foremost question presented in this case arises out of the claim of Maro Saldana (Saldana) that the State unlawfully invaded his reasonable expectation of privacy with respect to telephone company records for an unlisted telephone number. His specific contention is that certain records concerning telephone calls made to, and from, his unlisted telephone number at his residence were seized, or otherwise intercepted, in violation of Wyo. Const. art. 1, § 4 and Wyo.Stat. §§ 7-3-601 to -610 (Supp.1990) and, because of the violation of the Constitution and statutes, those telephone company records should not have been admitted as evidence at his trial. Saldana also asserts the admission of certain papers seized from his bedroom dresser drawer, together with testimony of an investigative agent that interpreted those documents to the jury, deprived him of his constitutional right to confrontation. In addition, Saldana contends testimony by the investigative agent was presented as an opinion regarding his guilt and as an opinion concerning credibility of various witnesses so that the testimony usurped the role of the jury. All of these assertions of error by Saldana culminate in his contention that, if the improper evidence had not been admitted, there would not be sufficient evidence in the record to sustain his conviction for the crime of possession of cocaine with intent to deliver. Our review of the record in light of our statutes and controlling precedent leads us to conclude that no reversible error occurred in connection with Saldana's trial, and the judgment and sentence is affirmed.

As set forth in his Brief of the Appellant, Saldana presents the issues in the case as follows:

1. Was the evidence presented insufficient to sustain Appellant's conviction?

2. Was Agent Arter's testimony concerning his opinion of appellant's guilt and the credibility of various witnesses inadmissible and denied Appellant his right to a jury trial?

3. Did the admission of the papers found in the dresser drawer violate Appellant's right to confrontation?

4. Whether Appellant's phone records and the derivative evidence were seized in violation of Article 1, Section 4 of the Wyoming Constitution and therefore inadmissible as evidence.

5. Whether the Appellant's telephone toll records were intercepted in violation of § 7-3-601 et seq. W.S. (1990 Cum.Supp.) and therefore were inadmissible.

In its brief, the State of Wyoming states the issues in this way:

I. Whether sufficient evidence was presented to convict appellant of possession of cocaine with the intent to deliver, in violation of W.S. 35-7-1031(a)(i).

II. Whether DCI Agent Mike Arter gave his opinion on the guilt of the appellant and the credibility of witnesses.

III. Whether it was proper to admit evidence concerning papers which were found on appellant's bureau during the search of his house.

IV. Whether the records of appellant's telephone calls should have been admitted.

V. Whether the use of appellant's telephone records violated W.S. 7-3-601 through 7-3-610, which proscribes the unauthorized interception of telephone conversations.

Late in February of 1989, a package containing four and one-half ounces of uncut cocaine was shipped from Green Bay, Wisconsin to Torrington, Wyoming via United Parcel Service (UPS). The shipper was identified as "Bob Haeger," and the package was addressed to one Hilario Torres (Torres). Torres was an unemployed laborer from Texas who was temporarily residing in the basement of the Saldana home. Saldana lived upstairs with his wife and children.

The package arrived in Torrington, but it could not be delivered at the time because it was addressed incorrectly and, as a result, had to be returned to Green Bay. "Bob Haeger" could not be contacted in Green Bay and, in accordance with standard UPS policy, UPS officials opened the unclaimed parcel in an effort to determine the identity of the shipper or an alternate address. The cocaine that was discovered when the package was opened by UPS was turned over to appropriate law enforcement personnel.

No one who could be identified as "Bob Haeger" ever did inquire about this package. Nevertheless, numerous telephone calls were received by the UPS office in Green Bay regarding the package. As a product of those calls, together with some information from the UPS driver in Wyoming, sufficient information was developed to reveal that Saldana's brother, Umero, actually sent the package, and the Saldana residence in Torrington was the intended destination. Umero Saldana previously had been convicted at least once for trafficking in cocaine.

The Division of Criminal Investigation (DCI) of the Attorney General's office in Wyoming entered the case when the Green Bay/Brown County, Wisconsin, multi-jurisdictional drug task force informed the DCI Wisconsin authorities had intercepted a parcel that was shipped to Torrington, Wyoming and contained a large quantity of cocaine. The addressee was identified as a person in the Torrington area named "Hilario Torres." An arrangement was made pursuant to which the resealed package was hand delivered to Mike Arter, a Wyoming DCI agent, on March 2, 1989. The same day, Arter obtained a search warrant and reopened the package. In addition to a jar containing four and one-half ounces of rock cocaine mixed in with coffee grounds, the box contained some empty paper sacks and a pair of worn boots. After it was searched, the package was, again, resealed, and Arter, attired as a UPS driver and operating one of its vans, took it to the Saldana address. Saldana's wife advised Arter the package was expected, but Torres was not at home. She then signed a receipt acknowledging delivery.

Agent Arter returned to the UPS truck but, approximately ten minutes later, he went back to the Saldana residence on the pretext that UPS needed some additional information contained on a "next day" shipping label he had forgotten to remove before delivering the package. On this occasion, Saldana answered the door. After hearing Arter's explanation, Saldana went down to the basement and returned with the package which had not been opened. Torres came upstairs later, after he was informed his signature was needed. The testimony in the record discloses Torres seemed confused but, nevertheless, he did as he was asked. The receipt obtained at that time, containing Torres' signature and his handwriting sample, subsequently was lost and was not offered into evidence at trial. After Torres' signature had been obtained, Arter then signaled to two other agents who were waiting outside, and both Torres and Saldana were arrested. Torres seemed unable to speak English, and it appeared to the agents he did not comprehend what was happening.

Agent Arter then obtained a search warrant for the Saldana residence and the package that had been delivered, and the package was opened once more. The rock cocaine and the other contents of the package were identical to those Arter had observed before he resealed the package after opening it when it was hand delivered to him. Other items that were seized, pursuant to the search warrant, included some scraps of paper taken from a dresser drawer located in the Saldana's master bedroom. One of these pieces of paper had written on it "1 oz. front 2-10-89 paid $1,000.00" and "front 2-12-89 paid 825 owes 575." There was another, purportedly signed by Federico Saldana, that listed Federico Saldana's address and contained the words "to pay 1/yr." Federico also is a brother of Saldana and, like Umero, previously had been convicted of trafficking in cocaine. With respect to this latter document, Christine Saldana, the Saldanas' daughter, testified she, not Saldana, had written the second note and it related only to a sale of a used Pontiac Tempest by her father to his brother. Additional pieces of paper were seized from the kitchen during the course of the search of the Saldanas' house, and these contained handwriting referring to the return address of the package, the UPS tracking number, the UPS telephone number, and various other "things of that nature."

Within a short time, the authorities in Wyoming decided Torres was not a part of any drug trafficking scheme, and he had been manipulated to the end that he permitted his name to be used for the address on the package containing the cocaine. He was released from custody and permitted to return to Texas. Saldana was charged with possessing cocaine with intent to deliver in violation of Wyo.Stat. § 35-7-1031(a)(i) (1988). He was found guilty after a trial to a jury, and the trial court sentenced him to a term of not less than two and one-half years nor more than seven years in the Wyoming State Penitentiary with credit allowed for 333 days previously served prior to his sentence. It is from that judgment and sentence Saldana appeals. We will state the facts in more detail as they relate to the several issues Saldana poses.

Saldana asserts in his brief "[p]erhaps the linchpin of the state's case against Appellant was the introduction and interpretation of Appellant's phone records and derivative evidence," and he then argues this evidence was obtained in violation of the provisions of Wyo. Const. art. 1, § 4, and Wyo.Stat. §§ 7-3-601 to -610 (Supp.1990). Saldana's conclusion is that evidence obtained in violation of the constitution and the statute is not admissible...