State v. Wright

• Decision Date: 12 December 2000
• Docket Number: No. 99-504.,99-504.
• Citation: State v. Wright, 17 P.3d 982, 2000 MT 322, 302 Mont. 527 (Mont. 2000)
• Parties: STATE of Montana, Plaintiff and Respondent, v. Byron Keith WRIGHT, Defendant and Appellant.
• Court: Montana Supreme Court

17 P.3d 982

2000 MT 322

302 Mont. 527

STATE of Montana, Plaintiff and Respondent, v.Byron Keith WRIGHT, Defendant and Appellant.

No. 99-504.

Supreme Court of Montana.

Submitted on Briefs August 3, 2000.

Decided December 12, 2000.

Robert M. Peterson, Peterson Law Office, Jeremy Yellin, Yellin Law Office, Havre, MO, for appellant.

Joseph P. Mazurek, Attorney General; Tammy K. Plubell, Assistant Attorney General, Helena, MO, David G. Rice, Hill County Attorney, Havre, MO, for respondent.

Justice JIM REGNIERdelivered the opinion of the Court.

¶ 1Byron Keith Wright appeals from a conviction of two counts of Criminal Sale of Dangerous Drugs in the Twelfth Judicial District, Hill County.The sole issue on appeal is whether the District Court erred when it denied Wright's motion to dismiss on grounds of preindictment delay.We affirm.

BACKGROUND

¶ 2The-Tri Agency Task Force(Task Force) is a multi-county agency that combines resources to investigate narcotics cases.The Task Force often works with confidential informants to set up drug buys.One of those confidential paid informants, Vicky Azure, claimed that she could purchase narcotics from Byron Keith Wright.

¶ 3 The first buy between Wright and Azure occurred on November 25, 1997.Sergeant George Tate, a member of the Havre Police Force and on assignment to the Task Force, and several other officers were involved in the transaction.The first buy was termed a credibility buy, which generally meant the buy was used primarily to test the accuracy of the confidential informant's information relating to the ability to purchase drugs.

¶ 4 On November 25, 1997, the officers met Azure and searched her vehicle and person to confirm that she was not hiding contraband.The Task Force provided cash for the purchase of drugs, and fitted Azure with a body wire for the purpose of assuring her safety and allowing the officers who were monitoring the transaction to maintain control of the situation.Officer Tate testified at the motion to dismiss hearing that the evidentiary value of recording a transaction is merely a secondary purpose of the body wire.Although Azure wore a body wire, and the officers monitored to situation by listening to the audio from the body wire, no recording of the transaction was made.

¶ 5 Azure was followed in a surveillance vehicle by Sergeant Tate and Agent Shawn Van Vleet, and Sergeant Tate took notes of the entire incident.Officer Tate testified at the hearing that it is standard operating procedure for one surveillance officer to take contemporaneous notes to document routine facts such as the date, time, persons present, and a shorthand version of events in chronological order.Officer Tate also testified that it is standard procedure that once the notes are transferred into a detailed report, the officers do not keep the contemporaneous notes.

¶ 6 Wright arrived at his home shortly after Azure arrived.He greeted Azure and they both went inside.Sergeant Tate and Agent Van Vleet listened to the conversation between Azure and Wright via an electronic monitoring device.There were only two persons conversing.Azure purchased two half grams of methamphetamine for $100 from Wright.Azure then inquired about purchasing some heroin, and after some discussion Azure purchased a small amount for $20.Azure also purchased a gram baggie of marijuana for $20.Azure left Wright's residence and turned over the contraband to the officers.The officers also searched Azure and her vehicle, but found no other contraband.The drugs purchased by Azure from Wright were identified by technicians at the Montana State Crime Lab to be heroin, marijuana, and methamphetamine.

¶ 7 With the cooperation of the Task Force, Azure completed a second drug transaction with Wright on December 8, 1997.The same procedure was followed by the Task Force members for this second purchase.Azure was fitted with a wire, the conversation between Azure and Wright was monitored, and an officer took contemporaneous notes, but the conversation was not recorded.Wright sold Azure one-eighth of an ounce of methamphetamine in exchange for $275.

¶ 8 The Task Force then contacted the Department of Justice Narcotics Investigation Bureau agents to assist with an undercover buy.Agent Lee Cornell worked with Azure to complete an undercover drug purchase of approximately two grams of cocaine from Wright on December 11, 1997.Azure, Cornell, and Wright met in an agreed-upon parking lot.Wright entered Azure's vehicle and sold Cornell two bindles of cocaine.Both Azure and Cornell wore wire recording devices and the transaction was recorded.An officer also took contemporaneous notes of the incident, which were later compiled by the officers into reports of the incident.During the transaction Wright had a passenger who remained in his truck.

¶ 9 On December 15, 1997, Agent Cornell worked with the Task Force to complete another controlled buy.Cornell was fitted with a body wire, and then went to the local V.F.W. bar where he met Azure, who was working at the bar.Cornell requested that she call Wright and arrange a purchase for him.During the conversation, Wright agreed to bring two grams of cocaine to the V.F.W. bar for Cornell.Cornell waited outside the bar for a few minutes when Wright drove up alone in his truck.Cornell got into the truck, and Wright drove to a nearby lot and then handed Cornell two ziplock bags which he said contained methamphetamine and cocaine.Cornell paid for the drugs and left.The full transaction was recorded.An officer took contemporaneous notes which were later compiled into reports of the incident.The items purchased from Wright tested positive for cocaine and methamphetamine.

¶ 10 Approximately one year later, on December 9, 1998, the State of Montana filed a Motion for Leave to File an Information against Byron Keith Wright.The District Court granted the motion and the Information was filed on December 15, 1998, charging Wright with four counts of Criminal Sale of Dangerous Drugs.The four charges were based on conduct alleged to have occurred approximately one year earlier on November 25, December 8, 11, and 15, 1997.

¶ 11 On April 30, 1999, Wright filed a Notice of Defenses providing notice of his intent to rely on the defenses of entrapment and/or alibi.On the same day, Wright also filed a Motion to Dismiss and Motion for Hearing on the basis of preindictment delay.He argued that as a result of preindictment delay, his constitutional right to due process under the Fifth and Fourteenth Amendments was violated.The State filed a response to the motion to dismiss arguing that any delay which occurred between the dates of the offense and the filing of the Information did not prejudice Wright.

¶ 12 On June 3, 1999, the District Court held an evidentiary hearing on the motions.Wright presented evidence that defense witnesses relevant to his defense of alibi could not be located.Wright also testified that he had no independent recollection of the transactions because of his drug use at the time.He did recall that "some girls" may have been around during the time frame of the transactions, and wanted to find them because he thought that they could help him remember that period of time.One in particular was present in Wright's pickup truck at the time of the third drug sale.Wright testified that, although he attempted to locate the women, he could not find them.

¶ 13 Wright also contended that the State had destroyed evidence that was gathered at the time of the offense that would have been relevant to his defense of entrapment.He complained that the destruction of the contemporaneous notes taken by the officer prohibited him from defending himself.He also contended that failure to tape the first two drug sales unduly prejudiced him because of his inability to prove that he was entrapped into selling drugs to Azure.

¶ 14The State produced evidence regarding the reason for the delay in prosecution.Sergeant Tate testified that the Task Force wished to use Azure as a confidential informant for as long as possible.If Wright had been immediately charged, the Task Force would have been unable to use her as a confidential informant on other investigations.Sergeant Tate also testified that he did not immediately request a search warrant after Azure first purchased drugs from Wright because he had information that Wright kept his supply of drugs in locations other than his home.Multiple officers also testified that, although contemporaneous notes were destroyed after the preparation of reports, the reports contained all of the information that had been recorded in the notes taken at the time of the drug sales.

¶ 15 At the conclusion of the hearing, the District Court denied Wright's motion to dismiss.The District Court concluded that Wright had not been prejudiced by any delay between the dates of the alleged offenses and the filing of criminal charges.The court also concluded that Wright was not prejudiced by his failure to find his witnesses, and it was probable that these witnesses would have been inculpatory, rather than exculpatory, due to their participation in drug-related activity with Wright and could not offer testimony that Wright was entrapped and/or that he had an alibi.The court also rejected Wright's allegation that he was prejudiced by the delay because officers had destroyed their field notes after incorporating them into reports.

¶ 16The case proceeded to trial on June 17, 1999.At Wright's trial, Azure testified about her relationship with the Task Force, the two times that she purchased drugs from Wright while being monitored by the Task Force, and the two times that she worked with Agent Cornell to enable him to purchase drugs from Wright.Azure did not keep written notes of the events.At trial, she stated that she did not make any promises, inducements, or assurances to Wright to convince him to sell her...