State v. Caswell

• Citation: 828 P.2d 830,121 Idaho 801
• Decision Date: 19 February 1992
• Docket Number: Nos. 18722,18840,s. 18722
• Parties: STATE of Idaho, Plaintiff-Respondent, v. James J. CASWELL, Defendant-Appellant. James Joseph CASWELL, Petitioner-Appellant, v. STATE of Idaho, Respondent. Twin Falls, Nov. 1991 Term
• Court: Idaho Supreme Court

Page 830

828 P.2d 830

121 Idaho 801

STATE of Idaho, Plaintiff-Respondent, v. James J. CASWELL, Defendant-Appellant.

James Joseph CASWELL, Petitioner-Appellant, v. STATE of Idaho, Respondent.

Nos. 18722, 18840.

Supreme Court of Idaho,

Twin Falls, Nov. 1991 Term.

Feb. 19, 1992.

Rehearing Denied May 5, 1992.

M. Lynn Dunlap, Jerome County Public Defender, Twin Falls, for defendant-appellant.

Larry J. EchoHawk, Atty. Gen., Michael A. Henderson, Deputy Atty. Gen., argued, Boise, for plaintiff-respondent.

BAKES, Chief Justice.

Appellant James Caswell appeals from a conviction for delivery of methamphetamine and from the district court's order denying his motion for a new trial. In a separate case, Caswell appeals the district court order dismissing his petition for post-conviction relief. These two cases were consolidated on appeal.

James Caswell was charged in a two-count information with possession and delivery of methamphetamine, a Schedule II narcotic, to an undercover narcotics agent. Before trial, Caswell filed a discovery request, asking for "results or reports of ... scientific tests or experiments made in connection with this particular case ... within the possession ... of the prosecuting attorney by the exercise of due diligence." In response the State supplied Caswell with a report prepared by criminalist Donald Wyckoff, who tested the substance Caswell gave to the undercover officers and determined that it contained methamphetamine. At trial Caswell objected to the introduction of this report, claiming that the State had failed to provide him with the working papers or graphs from which Wyckoff drew his conclusion that the tested substance was methamphetamine. The State acknowledged at trial that these documents had not been provided to Caswell earlier, but that they had been provided to him at trial. Once Caswell had the documents, the trial court allowed a recess, from approximately 3:00 p.m. until 10:00 a.m. the next morning, for Caswell's attorney to review them and, if necessary, find his own expert. Ultimately the trial court admitted the results of the test into evidence, ruling that the State had sufficiently complied with the discovery request five months earlier when it provided Caswell with Wyckoff's final lab report. The court further ruled that Caswell should have requested further information, or retained his own expert to run tests on the substance, if he felt he needed further information.

In his testimony at trial, Wyckoff identified the substance as methamphetamine, but he did not testify as to the effect methamphetamine has on the central nervous system, nor did the State present any other evidence as to that effect. At the close of trial, the jury found Caswell guilty on both charges, possession and delivery of methamphetamine. Caswell moved for judgment of acquittal or a new trial, claiming, among other things, that the verdicts were against the weight of the evidence, that Count I, possession of a controlled substance, was a lesser included offense of Count II, delivery of a controlled substance, and that Wyckoff's testimony should have been excluded and that the trial court did not allow Caswell sufficient time to prepare a defense to the test results which were not disclosed until trial. The district court dismissed the charge in Count I for possession of a controlled substance, holding that Count I was a lesser included offense of the delivery charge in Count II. The court denied all other motions and entered a judgment of conviction on Count II, the delivery charge. Caswell appealed from the entry of final judgment.

Caswell then filed a petition for post conviction relief, claiming that the State had failed to live up to an agreement it made with Caswell prior to trial. Caswell offered testimony at the hearing regarding an agreement in which the State, through an Idaho Bureau of Narcotics (IBN) agent, agreed to dismiss the charges against Caswell if Caswell provided the IBN with the names of ten drug dealers or distributors and performed controlled buys on behalf of the IBN. After Caswell presented his evidence, the State moved for a directed verdict, which the district court granted, holding that an IBN agent had no authority to bind the prosecuting attorney to a plea agreement. Caswell also appeals from this district court ruling. The two appeals were consolidated.

On appeal, we are asked to resolve the following issues:

1. Did I.C. § 37-2707(d) require the State to prove, and did it fail to prove, that the methamphetamine found within the substance which the defendant delivered to the agents had a stimulant effect on the central nervous system?

2. Did the State fail to comply with Caswell's discovery request, such that the trial court should have excluded criminalist Don Wyckoff's testimony?

3. Did the district court err in finding that an IBN agent cannot bind the State to a plea negotiation?

Regarding the first issue, whether I.C. § 37-2707(d) required the State to prove that the methamphetamine which Caswell delivered to the agents had a stimulant effect on the central nervous system, defense counsel admitted at oral argument that he had failed to raise this issue at trial. ¹ In such a situation, where the issue was not raised below, we will not consider it on appeal. State v. Martin, 119 Idaho 577, 808 P.2d 1322 (1991); State v. Kellogg, 102 Idaho 628, 636 P.2d 750 (1981); Lockard v. State, 92 Idaho 813, 451 P.2d 1014 (1969).

We next consider Caswell's contention that the State did not adequately respond to Caswell's discovery request that the State furnish "results or reports of ... scientific tests or experiments made in connection with this particular case...." In response to this request, the State, some five months before trial, had provided Caswell with Wyckoff's report, Exhibit C, containing his test results and conclusions. It did not provide the working papers and graphs on which the conclusions in the report were based until requested at trial.

The trial court found that the State's providing the test results, Exhibit C, was adequate. We find no error in the trial court's conclusion. Even assuming, however, that the State's original response was inadequate, we find no abuse of discretion in the trial court's conclusion that Caswell's failure for five months to pursue the matter further and request more specific test information, such as the computer printout, or to obtain his own expert and request that a portion of the remaining contraband be submitted to his own expert, precludes him from complaining about any perceived inadequacy of the State's response. People v. Janke, 720 P.2d 613 (Colo.App.1986) (Trial court did not abuse discretion by denying defendant's motion for a continuance where "defense counsel had ample time and opportunity to prepare adequately"); Begley v. Municipality of Anchorage, 711 P.2d 540, 543 (Alaska App.1985) ("Even if [defendant] had made a showing that the ... testimony would be relevant to her defense ... [the trial court] could have correctly concluded that [defendant] had not been diligent in pursuing this line of defense"); Clark v. State, 704 P.2d 799 (Alaska App.1985); People v. Cornelius, 41 Colo.App. 182, 585 P.2d 295 (1978); State v. Maxwell, 103 Ariz. 478, 445 P.2d 837 (1968). Caswell had five months from the time the State provided Wyckoff's test results and conclusions until trial to request further information from the State. Given that significant amount of time in which Caswell could have acted, he cannot wait to raise the issue of the inadequacy of the State's response by merely objecting at trial when the State's witness is called to testify. We conclude that the trial court did not err by allowing Wyckoff to testify and by admitting the test results as evidence.

Finally, we consider Caswell's argument that the district court erred in concluding that an IBN agent has no authority to bind the state, thereby dismissing his petition for post-conviction relief. Caswell argues that, in this case, the IBN agent did have authority to bind the State to his alleged promise that the charges against Caswell would be dismissed if Caswell performed certain narcotics buys on behalf of the IBN and gave the IBN the names of ten persons involved in dealing drugs. The State, on the other hand, argues that even if Caswell had presented credible evidence that the IBN agent entered into such an agreement with Caswell, which it denies, the IBN agent had no authority to enter into such an agreement and that such an agreement is not binding on the State. We agree with the State's argument.

We first point out that this case does not involve a plea bargain arrangement, in which Caswell would have pleaded guilty to something less than the crime or crimes charged in exchange for his cooperation with the IBN. Instead, Caswell claims that the IBN agent agreed to have all charges against Caswell dismissed in exchange for certain cooperation on his part.

The Idaho statute clearly spells out who has authority to dismiss a pending action. I.C. § 19-3504 provides that a district court "may, either of its own motion or upon the application of the prosecuting attorney, ... order an action or indictment to be dismissed." The statute only gives authority to the district court to dismiss felony charges against an accused; a prosecutor has no independent authority to dismiss a felony case but may only recommend to the court that an action be dismissed. If a prosecutor does not have authority to agree to dismiss an action, an IBN agent certainly has no such authority. See Application of Parham, 6 Ariz.App. 191, 431 P.2d 86, 88 (1967) ("We hold that such promises [to dismiss all charges if a defendant helps in a criminal investigation], if made by police officers are unenforceable, as being beyond the scope of authority of such officers"); United States v. Williams, 780 F.2d 802, 803 (9th Cir.1986) ("In general, a promise made by...