Wehr v. State
| Decision Date | 13 November 1992 |
| Docket Number | No. 90-185,90-185 |
| Citation | 841 P.2d 104 |
| Parties | Paul C. WEHR, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Wyoming Public Defender Program: Leonard D. Munker, State Public Defender, Steven E. Weerts, Sr. Asst. Public Defender, Mike Cornia, Appellate Counsel, Gerald M. Gallivan, Director, Wyoming Defender Aid Program, Mary Frances Cadez, Student Intern, for appellant.
Joseph B. Meyer, Atty. Gen., Sylvia Lee Hackl, Deputy Atty. Gen., Karen A. Byrne, Sr. Asst. Atty. Gen., for appellee.
Before MACY, C.J., and THOMAS, CARDINE, URBIGKIT, * and GOLDEN, JJ.
The most troublesome issue in this case is whether the record discloses sufficient evidence to establish a criminal conspiracy to deliver controlled substances. Closely related to that difficult issue is the issue of whether the trial court erred in admitting evidence of prior purchases of controlled substances by Paul C. Wehr (Wehr) from a co-conspirator. In addition, Wehr strenuously argues he was deprived of his constitutional right to a speedy trial. We hold the evidence of prior purchases of controlled substances from the co-conspirator was relevant and admissible in this case and all of the evidence was sufficient to establish a criminal conspiracy to deliver controlled substances. We further hold there was no violation of Wehr's constitutional right to a speedy trial. The judgment and sentence are affirmed.
Wehr sets forth the issues in this case, in his Brief of Appellant, as follows:
I. Whether the testimony of Pamela Thompson concerning Appellant's alleged prior drug purchases was improperly admitted under Rule 404(b) of the Wyoming Rules of Evidence and any probative value was outweighed by its prejudicial effect under Rule 403.
II. Whether the evidence was insufficient to establish that Appellant conspired to deliver a controlled substance in violation of Wyo.Stat. § 35-7-1042 (1977).
III. Whether Appellant was denied the right to a speedy trial in violation of the United States and Wyoming Constitutions and Rule 204 of the Uniform Rules for the District Courts of the State of Wyoming.
In its Brief of Appellee, the State of Wyoming restates the issues in this way:
I. Whether the trial court properly admitted Pamela Thompson's testimony.
II. Whether the evidence is sufficient to sustain Appellant's conviction for conspiracy to deliver a controlled substance.
III. Whether Appellant was denied his right to a speedy trial.
In a two-count Information, Wehr was charged with conspiracy to deliver a controlled substance in violation of Wyo.Stat. §§ 35-7-1042 and -1031(a)(ii) (1988), and the delivery of a controlled substance in violation of Wyo.Stat. § 35-7-1031(a)(ii). 1 After a trial to a jury, Wehr was convicted on both counts.
These charges arose out of events that occurred in Riverton on December 23, 1988. An undercover police officer (officer) and a confidential informant met with Perry Greenhalgh to attempt to purchase drugs. Greenhalgh was the target of a criminal investigation being conducted by the Northwest Wyoming Drug Enforcement Team, a unit of the Wyoming Division of Criminal Investigation (DCI). Three DCI agents provided audio and visual surveillance of the meeting with Greenhalgh.
Initially, Greenhalgh agreed to sell, and the officer agreed to buy, an unspecified amount of cocaine. When efforts to procure the cocaine proved unsuccessful, Greenhalgh asked the officer if he would be interested in "crank," a street name for methamphetamine. The officer responded he would, and Greenhalgh then called someone he referred to as "Paul" to see if he could obtain that drug. After talking with Paul, Greenhalgh informed the officer he had a source and the price would be $60 per one-half gram. The officer agreed to purchase one gram.
The officer, the confidential informant, and Greenhalgh left Greenhalgh's residence and went to Wehr's home at Park Avenue Trailer Park, Space 234. Greenhalgh entered the trailer alone and returned shortly thereafter without having obtained the methamphetamine. Greenhalgh stated they would have to come back forty-five minutes later. The officer, the confidential informant, and Greenhalgh then returned to Greenhalgh's residence.
After the officer and the others had left Wehr's home to return to Greenhalgh's residence, one of the surveillance agents observed Wehr leave his trailer and get into his Dodge pickup. That agent and another DCI agent followed Wehr in separate vehicles to 1103 Westwood Drive. At that address, Wehr parked his pickup and got into a Ford Bronco driven by Pamela Thompson (Thompson). While they drove around Riverton in the Ford Bronco, Thompson sold Wehr three grams of methamphetamine. After making the purchase from Thompson, Wehr returned to his trailer home.
The officer, the confidential informant, and Greenhalgh arrived within a short time. Greenhalgh again entered Wehr's trailer alone and, after a few moments, he returned with a baggie of drugs that he gave to the officer. Upon testing, the drugs turned out to be methamphetamine.
On March 2, 1989, the officer and two DCI agents returned to Wehr's trailer to discuss the December drug transaction with him. Wehr initially denied any involvement, but then he admitted he had bought methamphetamine from Thompson and had later sold it to Greenhalgh.
On May 26, 1989, a criminal complaint was filed in which Wehr was charged in two counts with conspiracy to deliver and the delivery of a controlled substance in violation of §§ 35-7-1042 and -1031(a)(ii). A preliminary hearing was conducted, and Wehr was bound over for trial in the district court. On June 20, 1989, an information was filed charging Wehr with the same crimes that had been alleged in the complaint. At his arraignment, Wehr entered pleas of not guilty, and the case was set for trial on September 18, 1989, as the fifth case in a stacked setting. The record discloses no formal continuance of the trial but, on October 3, 1989, the State filed a motion to dismiss the Information against Wehr, stating that a principal witness was unavailable for trial. The district court granted that motion on October 4, 1989.
On October 10, 1989, the State refiled a criminal complaint identical to the one previously filed against Wehr. The process was repeated, and Wehr eventually was brought to trial on April 16, 1990. On April 18, 1990, the jury found Wehr guilty of both counts alleged in the information. By the judgment and sentence entered on June 28, 1990, Wehr was sentenced on each count to a term of not less than one and one-half years nor more than three years to be served at the Wyoming State Penitentiary, with those sentences to run concurrently. In addition, he was fined the sum of $2,500 on Count II. Wehr has appealed from the judgment and sentence.
While it is not the primary issue in the case, we turn first to the issue concerning the evidence of prior drug purchases which was submitted through Thompson's testimony. Wehr contends this evidence was inadmissible character evidence, foreclosed by Wyo.R.Evid. 404 2 or, in the alternative, it should have been excluded because of the provisions of Wyo.R.Evid. 403.
In pertinent part, Wyo.R.Evid. 404 provides:
(a) Character evidence generally.--Evidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:
* * *.
(b) Other crimes, wrongs, or acts.--Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Wyo.R.Evid. 404, identical to the parallel federal rule, finds its antecedents in the common law, and the policy for excluding evidence of character or a trait of character was said to be "the practical experience that its disallowance tends to prevent confusion of issues, unfair surprise and undue prejudice." Michelson v. United States, 335 U.S. 469, 476, 69 S.Ct. 213, 218-19, 93 L.Ed. 168 (1948). Its intent is to avoid a demand that an accused defend acts of misconduct other than those charged in the indictment or information and to avoid potential confusion by members of the jury in addressing the issues of the case. The rule demands convictions are to be founded in those facts relevant to the crime or crimes charged. If the thrust of evidence of prior bad acts is only to demonstrate the defendant has a disposition to commit crimes, the evidence should be excluded.
We have summarized the application of Wyo.R.Evid. 404(b) in this way:
This rule operates to ban the use of evidence of a person's character in order to establish that the person's behavior on a particular occasion was in conformity with his character. Ortega v. State, 669 P.2d 935, 943 (Wyo.1983). Such evidence may, however, be admissible for other purposes. Trujillo v. State, 750 P.2d 1334, 1336 (Wyo.1988); Coleman v. State, 741 P.2d 99, 103 (Wyo.1987); Brown v. State, 736 P.2d 1110, 1112-14 (Wyo.1987); Ortega, 669 P.2d at 943. This court has adopted a rather liberal attitude toward admitting evidence of other crimes, wrongs or acts if it constitutes proof of one of the purposes in accord with Rule 404(b). Marker v. State, 748 P.2d 295, 297 (Wyo.1988); Carey v. State, 715 P.2d 244, 248 (Wyo.1986).
Pena v. State, 780 P.2d 316, 318 (Wyo.1989).
Our application of the provisions of Wyo.R.Evid. 404(b) is consistent with the view of a leading authority:
So frequent is the use of evidence of other acts and crimes for such purposes that it would be both fair and clearer to state the operative principle as one of inclusion, as many courts do. These words capture the substance of the principle: "Evidence of prior acts and crimes by the...
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