Wheeler v. State

• Decision Date: 05 December 1984
• Docket Number: No. 84-45,84-45
• Citation: 691 P.2d 599
• Parties: Steve WHEELER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 599

691 P.2d 599

Steve WHEELER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 84-45.

Supreme Court of Wyoming.

Dec. 5, 1984.

Leonard D. Munker, State Public Defender, Sylvia Lee Hackl, Appellate Counsel, Cheyenne, Gerald M. Gallivan, Director, Wyoming Defender Aid Program, and Craig W. Rossi, Student Intern, Wyoming Defender Aid Program, Laramie, for appellant.

A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., John W. Renneisen, Senior Asst. Atty. Gen., and Roger Fransen, Asst. Atty. Gen., for appellee.

Before ROONEY, C.J., and THOMAS, ROSE, BROWN and CARDINE, JJ.

ROONEY, Chief Justice.

Appellant appeals from the judgment and sentence rendered on a jury verdict which found him guilty of delivery of a controlled substance (cocaine) in violation of § 35-7-1031(a)(i), W.S.1977. Appellant argues that (1) the trial court erred in refusing to consider the purchaser of the controlled substance as an accomplice and instructing the jury accordingly, (2) the trial court erred in permitting the introduction of the cocaine and test results inasmuch as the quantity of the remaining cocaine was insufficient for additional tests by appellant, and (3) plain error resulted from remarks in the closing argument of the prosecuting attorney.

We affirm.

ACCOMPLICE

Bill Witt was arrested and charged with delivery and possession of controlled substances. The charges were dropped in exchange for Witt's testimony against appellant; Witt testified that appellant had supplied him with the cocaine. Appellant offered, and was refused, the Wyoming Pattern Jury Instruction (WPJIC 2.104) on testimony of an accomplice. ¹ Appellant objected to such refusal. The pattern jury instruction reflects the status of the law on testimony of an accomplice. Ostrowski v. State, Wyo., 665 P.2d 471 (1983); Phillips v. State, Wyo., 553 P.2d 1037 (1976); Miller v. State, Wyo., 508 P.2d 1207 (1973); Pike v. State, Wyo., 495 P.2d 1188 (1972); Filbert v. State, Wyo., 436 P.2d 959 (1968). The issue here does not concern the propriety of the instruction itself, but only whether or not there was evidence to warrant the instruction, i.e., was Witt an accomplice?

An accomplice, or an accessory before the fact is a person who knowingly aids or abets in the commission of a felony, or who counsels, encourages, hires, commands or procures a felony to be committed. See § 6-1-114, W.S.1977, as in force at time of the incident, and see Ch. 75, § 2, Session Laws of Wyoming 1982, and Ch. 171, § 1, Session Laws of Wyoming 1983.

Mere presence at the time and place of the crime and acquiescence in the criminal conduct does not make one an aider and abettor, but rather active participation or encouragement in the crime and a corresponding intent to accomplish the same criminal end as the principal is needed. Haight v. State, Wyo., 654 P.2d 1232, 1240 (1982). To be convicted of aiding and abetting the commission of a substantive offense, it must be proven that someone committed the substantive offense and that the person charged as an aider and abettor associated himself and participated in the accomplishment and success of the criminal venture. Haight v. State, supra, 654 P.2d at 1238; Goldsmith v. Cheney, 447 F.2d 624, 628 (10th Cir.1971); Nye & Nissen v. United States, 336 U.S. 613, 618-619, 69 S.Ct. 766, 769-770, 93 L.Ed. 919 (1949).

Appellant cites us to no authority, Wyoming or otherwise, for the proposition that the buyer of controlled substances is the accomplice of the seller. He notes that an accomplice is one who could have been indicted for the offense, either as a principal or as an accessory before the fact. State v. Vines, 49 Wyo. 212, 54 P.2d 826, 832 (1936); Smith v. State, 10 Wyo. 157, 67 P. 977 (1902). ² Other jurisdictions, while construing substantially different accessory statutes, have also developed the test for determining whether the acts of a participant in a crime constitute those of an accomplice as: Whether or not the participant could also be charged with the identical offense as that committed by the principal. State v. Castro, 32 Wash.App. 559, 648 P.2d 485, 489 (1982); State v. Hallett, Utah, 619 P.2d 335, 337 (1980); State v. Berg, Utah, 613 P.2d 1125, 1126 (1980); Nunley v. State, Okl.Cr.App., 601 P.2d 459, 462 (1979); State v. Kasai, 27 Utah 2d 326, 495 P.2d 1265, 1266 (1972); State v. Fertig, 120 Utah 224, 233 P.2d 347, 348 (1951). This test is a means of asserting the fact of complicity; it does not matter whether such participant is actually charged with the same offense, but whether he could be so charged. This is essentially the same test we used in State v. Callaway, supra fn. 2, 267 P.2d 970. There we said, at page 974 of 267 P.2 d:

" ' * * * Whether the thief is such an accomplice is ordinarily tested either by the inquiry whether he has taken a guilty part in the commission of the crime with which the receiver is charged, or by a determination of whether he could himself be indicted for the offense, either as principal or accessory.' "

Appellant argues that Witt, the buyer of the cocaine, was in fact charged with the violation of the same statute as appellant, i.e., delivery of a controlled substance, § 35-7-1031(a)(i), supra, prior to making a "deal" with the state. The record shows that this is true; however, that charge arose out of a completely different transaction from the one with which we are here concerned. The mere fact that a buyer of narcotics turns around and sells them to someone else, thereby bringing himself within the delivery statutes, does not make him an accomplice of the original sale made to him. There is a definite distinction between a seller and a buyer. Their separate acts may result in a single transaction, but the buyer is not aiding the "selling act" of the seller and the seller is not aiding the "buying act" of the buyer. The buyer and seller act from different poles. They are not in association or confederacy. An accomplice is one who participates in the same criminal conduct as the defendant, not one whose conduct is the antithesis of the defendant, albeit the conduct of both is involved in a single transaction.

Wharton's Criminal Evidence (13th ed. 1973) tells us that a purchaser of narcotics is not an accomplice of the defendant charged with selling such narcotics, Id. Vol. 3, § 648, pp. 360-361, and we so hold. The purchaser of controlled substances commits the crime of "possession" and not "delivery," and, thus, is not an accomplice to a defendant charged with unlawful distribution. State v. Berg, supra. The trial court was correct in not giving the requested instruction on accomplices.

TEST RESULTS

During the search on Witt's residence, approximately 1/8 of a gram of a substance believed to be cocaine was seized. Two tests were conducted on the substance at the police station, and a further test was conducted by the Federal Drug Enforcement Administration Laboratory Services in San Francisco. The defendant filed a motion for independent testing of the substance which the court granted. However, after the three tests only 1/100 of a gram of the substance remained. Appellant, during trial, objected to the introduction of the cocaine and the laboratory test results into evidence, claiming "[d]ue process grounds that the State has failed in its duty to preserve evidence for Defendant's testing." The objection was overruled.

The United States Supreme Court held, in Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-1197, 10 L.Ed. 215 (1963), that:

" * * * [T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution."

However, there is no showing whatever that the cocaine was not made available to appellant for testing. The record reflects that the prosecution informed the court during the arraignment proceedings that they maintained an open file policy, meaning that the defense was free to see everything in the prosecution's file. The court granted an order

"that upon return of the alleged controlled substance herein involved from the DEA Laboratory, the County Attorney shall cooperate and coordinate with the defense attorney to permit analysis by an independent testing facility."

There is no showing that such was not done. Further, some of the cocaine was retained-- 1/100 of a gram--and admitted into evidence at trial. There is no showing in the record that appellant attempted and was not able to have the remaining cocaine independently tested; there is no evidence that a test could not be conducted on the 1/100 of a gram. There is nothing in the record to support appellant's counsel's statement that the State failed to preserve evidence for the defendant's independent testing.

We can not take judicial notice of the quantity of a substance required for testing to prove or disprove its identity as cocaine. The defense did not present expert testimony or other evidence that the remaining amount of cocaine was too minuscule to test. There is nothing in the record to substantiate appellant's contention on this point. But, even had the defense established the fact that the amount of cocaine was too small for testing, a recent ruling of the United States Supreme Court indicates that appellant's due process rights would not have been abridged. In California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984), the United States Supreme Court recently ruled that the due process clause does not require law enforcement agencies to preserve breath samples of suspected drunk drivers in order for results of breath analysis tests to be admissible in criminal prosecutions. Although that case involves the preservation of breath samples, much of that said there is applicable here.

In California v. Trombetta, supra, law enforcement officers used a device...