Vigil v. State

• Decision Date: 11 October 1996
• Docket Number: No. 95-61,95-61
• Parties: Andy Jasper VIGIL, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 351

926 P.2d 351

Andy Jasper VIGIL, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 95-61.

Supreme Court of Wyoming.

Oct. 11, 1996.

Cecil A. Cundy, Sundance, for Appellant.

William U. Hill, Wyoming Attorney General; Paul S. Rehurek; Mary B. Guthrie, Deputy Attorneys General; and D. Michael Pauling, Senior Assistant Attorney General, Cheyenne, for Appellee.

Before TAYLOR, C.J., and THOMAS, MACY, GOLDEN ^* and LEHMAN, JJ.

THOMAS, Justice.

The primary issue in this case, a claim of error in admitting evidence of prior bad acts as asserted by Andy Jasper Vigil (Vigil), induces us to revisit the criteria outlined in Dean v. State, 865 P.2d 601 (Wyo.1993), and to conform our process to that used in applying the FEDERAL RULES OF EVIDENCE. Additional claims of error are based upon asserted, impermissible comment on Vigil's exercise of his right to remain silent and upon prosecutorial misconduct in closing argument. After accommodating our rule to that of the federal courts, we hold there was no error in admitting the evidence of prior bad acts and, under our precedents, no error occurred with respect to comment upon the exercise of the right of silence or improper argument by the prosecutor. The Judgment and Sentence appealed from is affirmed.

Vigil sets forth three issues, with various sub-issues in his Brief of Appellant, as follows:

1. Whether or not the District Court erred in failing to exclude testimony of Max Alden, alleged accomplice and coconspirator on direct examination as to an alleged delivery of cocaine by Appellant to Max Alden who was then thirteen or fourteen years old (four to five years prior to the offenses charged) which alleged prior bad acts were not the basis for any of the offenses charged?

2. Whether or not there was impermissible comment upon Appellant's exercise of his right to remain silent by the Attorney for the State of Wyoming in her rebuttal summation wherein [the prosecutor] argued in three instances as follows:

a. "Bobby Burr, is he a vital link? Is he absolutely necessary? No. He isn't. Because everything Bobby would have been there for, so is Max. Max is here to testify. And if you notice, Ladies and Gentlemen, Max's testimony is completely uncontroverted. Not refuted in any way, shape or form.

And Ladies and Gentlemen, I will tell you another secret."

b. "Angelique Peterson's [Monet's] testimony, completely uncontroverted."

c. "And I had your promise then and I would ask for your promise now if you find, based on the information that you have heard from the witness stand, completely uncontroverted, and if there is circumstantial evidence in there that you think that you can draw some inferences from, then you must do so, and you must convict him."

3. Whether or not there was improper conduct by the prosecutor in closing argument and rebuttal summation by conduct as follows:

a. By impermissible introduction by the prosecution of new or additional facts not in the record when the State's Attorney stated in her rebuttal summation "And Ladies and Gentlemen, I will tell you another secret. The Defendant was given Bobby Burr's address. Defendant could have contacted Bobby Burr at any time."?

b. By impermissible misstatements of the law by the Attorney for the State of Wyoming in her rebuttal summation wherein [the prosecutor] argued "And I will grant you Max Alden and Angelique Peterson [Monet] are accomplices. No doubt. But you, Ladies and Gentlemen, can convict on the unsupported testimony of an alleged accomplice. And you can also convict on circumstantial evidence. And we talked about that during the voir dire. And I had your promise then and I would ask for your promise now if you find, based on the information that you have heard from the witness stand, completely uncontroverted, and if there is circumstantial evidence in there that you think that you can draw some inferences from, then you must do so, and you must convict him."?

c. By impermissible comment on evidence which was excluded by the Court by the Attorney for the State of Wyoming in her rebuttal summation wherein [the prosecutor] stated "I don't have to have, and I don't have to prove beyond a reasonable doubt, that Max Alden and Bobby Burr stopped in Billings, Montana. That's why the evidence isn't before you because the Court was concerned after the fact. That's why you don't have it physically to take back with you."?

In its Brief of Appellee, the State condenses the issues to:

I. Whether the trial court abused its discretion by admitting testimony that Appellant had given cocaine to his stepson.

II. Whether the prosecutor improperly commented on Appellant's right of silence.

III. Whether the prosecutor made improper comments during closing argument.

In November 1992, Vigil, who at that time was a resident of Worland, became a target of an undercover drug investigation conducted by law enforcement officers in Wyoming and Montana. A confidential informant, Brian Metcalf (Metcalf), was a key figure in that investigation. On three occasions, Metcalf obtained cocaine from Max Alden (Alden), Vigil's eighteen-year-old stepson. Vigil furnished the cocaine to Alden.

In late October 1992, Vigil asked Alden to sell some cocaine for him. The first sale was made on November 2, 1992, when Alden and another individual, Bobby Burr (Burr), sold Metcalf "two eight balls" of cocaine in Hardin, Montana. Later that same day, Metcalf contacted Alden and Burr, who then agreed to sell him one-fourth of an ounce of cocaine. Alden and Burr advised Metcalf they would have to go to Worland to pick up the cocaine. That same day, the two drove to Worland and picked up the cocaine at Vigil's paint and auto body repair shop. They returned to Hardin and sold the cocaine to Metcalf.

On November 4, Metcalf informed Alden and Burr he wanted to buy more cocaine. They drove to Worland and met Vigil in the parking lot of a store. Alden got into Vigil's vehicle, and they drove to the paint and auto body repair shop where Vigil gave Alden cocaine. At that time, Alden gave Vigil the money he had received in the November 2 sale. Alden and Burr then returned to Hardin, but they did not sell the cocaine to Metcalf.

Then, on November 12, Metcalf asked to buy an ounce of cocaine from Alden and Burr. Metcalf fronted that sale by giving them $1,900, which had been photocopied for identification by the drug investigation team. Alden telephoned Vigil to tell him they would be coming to Wyoming to obtain more cocaine. This time, Vigil changed the method of delivery. Alden was instructed to go to Lovell, not Worland, where he would meet a woman who would be driving a pickup equipped with a camper shell with two dogs in the pickup. The woman would have the cocaine, and they were to give her the money they had received from Metcalf. Accompanied by two other individuals, Alden and Burr went to Lovell. Their journey was monitored by law enforcement personnel.

After they arrived in Lovell, Alden went and sat in the pickup with the woman, later identified as Angelique Monet, who sometimes was referred to by her married name, Peterson. Monet gave Alden an ounce of cocaine and received the money from him. Earlier that day, Monet had stopped at Vigil's house, and he had given her the cocaine to deliver to Alden, agreeing to pay her $100 for that service. After turning over the cocaine to Alden and receiving the money, Monet returned to Worland and delivered that money to Vigil. Burr and Alden returned to Hardin, where they were arrested after Burr sold Metcalf almost one ounce of cocaine.

Vigil was charged with three counts of unlawful delivery of a controlled substance and two counts of conspiracy to deliver a controlled substance. At a jury trial in Worland, Vigil was convicted of all three counts of unlawful delivery of a controlled substance and the two counts of conspiracy to deliver a controlled substance. He was sentenced to concurrent terms of thirty to sixty months and was fined $4,000 on each count. Additional material facts are set forth in connection with the discussion of the several claims of error.

We hold we should follow the lead of the federal courts, and require an appropriate objection to be lodged, at trial or before, to evidence inadmissible under WYO. R. EVID. 404(b). We adopt as the criteria for the admissibility of evidence claimed, by a pertinent and timely objection, to violate WYO. R. EVID . 404(b) the same test as that articulated in the federal courts. Our trial courts and counsel in criminal cases will have a much broader base of pertinent authority from which they can evaluate the presence of a proper purpose, relevancy, and the possibility of unfair prejudice outweighing the probative value.

We are persuaded the rule requiring an appropriate objection, applied by the United States Court of Appeals for the Tenth Circuit in United States v. Herndon, 982 F.2d 1411, 1414-15 (10th Cir.1992), aff'd on appeal after remand, 34 F.3d 1077 (10th Cir.1994), is the correct response to this problem. Our decision is reinforced by a substantially parallel justification also appearing in Schmunk v. State, 714 P.2d 724, 739 (Wyo.1986), where we specifically were invited to place the burden of justifying admissibility of hearsay on the state and the court, and we said:

Appellant suggests that the State must satisfy its burden and the court make a determination of admissibility even though appellee makes no objection to receipt of the hearsay evidence. Appellant is not correct in this contention. To hold as suggested would impose an impossible burden upon a trial court to, on its own motion, require proof that opposing counsel has not demanded. Besides, opposing counsel may choose not to object to receipt of the offered evidence for many reasons. Trial strategy may dictate no objection; the opposing party may believe the offered evidence will be favorable; the opposing party may believe that...