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Gary Lee Carter v. S-11-0298

August 9, 2012

GARY LEE CARTER, APPELLANT (DEFENDANT),
v.
S-11-0298 THE STATE OF WYOMING, APPELLEE (PLAINTIFF).



Appeal from the District Court of Sweetwater County The Honorable Nena R. James, Judge

The opinion of the court was delivered by: Hill, Justice.

Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be made before final publication in the permanent volume.

[¶1] Gary Lee Carter was tried and convicted by a jury of a single felony charge of possessing, with intent to deliver, two grams of methamphetamine in violation of Wyo. Stat. Ann. § 35-7-1031. The court sentenced Carter to twelve to fifteen years in the Wyoming State Penitentiary. On appeal, Carter contends that plain error occurred when the prosecutor elicited expert witness testimony that Carter was guilty of being a drug dealer. Also, Carter alleges that the prosecutor committed misconduct when arguing facts not in evidence during closing argument. We reverse.

ISSUES

[¶2] Carter states two issues for our consideration:

Plain error occurred when the prosecutor elicited expert witness testimony that Carter was guilty of being a drug dealer.

The prosecutor committed misconduct when he argued facts not in evidence in closing argument.

FACTS

[¶3] The Rock Springs Police Department's Street Crimes Unit began investigating Carter after receiving tips that he was dealing drugs. During that investigation, "short stay traffic," a common sign of drug trafficking, was observed at Carter's residence, and officers obtained a search warrant based upon that information. On January 11, 2011 officers executed the warrant after stopping Carter as he approached his home. Carter carried $75.00 in his hand and told the officer, "The dope is in my pocket." As indicated, the officer found a soft case in Carter's pocket that contained two grams of methamphetamine, a digital scale disguised as an iPod, empty baggies, and a pipe. Carter also divulged that "everything you are looking for [in the house] would be around my chair."

[¶4] While searching Carter's home, the officers found video surveillance equipment, a portable police scanner, more zip lock style plastic bags, another digital scale, and several notebooks. The notebooks contained pay/owe sheets, a "to do" list with an entry stating "sell dope." Another notepad listed police radio codes that would likely be heard on the police scanner.

[¶5] After being originally charged with four crimes and pleading not guilty to all four, the State announced before trial that it would dismiss the three misdemeanor charges and proceed to trial only on the felony charge.

[¶6] During trial, the State qualified Daniel Allison, a special agent for the Wyoming Division of Criminal Investigation (DCI), as an expert in drug trafficking investigations. Agent Allison testified based upon his expertise. On redirect the State questioned Agent Allison:

STATE: [Mr. Carter] had two grams [of methamphetamine], he had that small pipe in that kit with plastic bags . This is that small pipe and this was the bag that had the methamphetamine in it and a supply of plastic bags . That was on his person. And it still has the methamphetamine and it has the digital scale that is concealed as an MP3 player. Then inside his residence he had additional plastic baggies, another digital scale, he had the surveillance set up and police scanners with a list of police ...


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