[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Appeal from the District Court of Laramie County. The Honorable Steven K. Sharpe, Judge.
Representing Appellant: Office of the Public Defender: Diane M. Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel. Argument by Ms. Olson.
Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Jenny L. Craig, Senior Assistant Attorney General; Jeremy A. Gross, Assistant Attorney General. Argument by Mr. Gross.
Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, JJ.
[¶1] A jury found Ryon Termaine Fennell guilty of three counts of delivery of cocaine. He appeals from the judgment and sentence, asserting the prosecutor committed misconduct when he elicited improper testimony and called an improper rebuttal witness; he was denied his right to confrontation when law enforcement officers were allowed to testify concerning results of tests conducted by others; his trial counsel was ineffective; and there was insufficient evidence to sustain his conviction. Concluding that trial counsel's performance was ineffective and Mr. Fennell was prejudiced thereby, we reverse the conviction and remand for a new trial.
[¶2] We re-phrase Mr. Fennell's statement of the issues and address them in the following order:
1. Whether the evidence was sufficient to sustain Mr. Fennell's conviction;
2. Whether Mr. Fennell was denied his right to confrontation when law enforcement officers testified about results of tests conducted by others;
3. Whether the prosecutor committed misconduct by improperly eliciting testimony that invaded the province of the jury and calling an improper rebuttal witness; and
4. Whether Mr. Fennell's trial counsel was ineffective.
[¶3] In the fall of 2012, Jeff Wheeler, an employee of Goofy's Bar in Cheyenne, Wyoming,
approached a Cheyenne police officer, informed him there were illegal drugs running through the bar and offered to assist law enforcement in addressing the problem. The officer put Mr. Wheeler in touch with the Wyoming Department of Criminal Investigation (DCI) and a plan was developed to use Mr. Wheeler as a confidential informant to purchase drugs from those involved. On three separate occasions that fall, Mr. Wheeler arranged meetings with Mr. Fennell and returned from those meetings with cocaine. On each occasion, law enforcement searched Mr. Wheeler and his vehicle, provided him with cash and a concealed recording device and followed him to the prearranged location for the buy. After each buy, law enforcement followed him to the DCI office, retrieved the purchased substance from him, searched him and his car, and debriefed him about what had transpired. Laboratory tests performed on the substances obtained from each purchase were positive for the presence of cocaine. In March 2013, the Laramie County district attorney's office issued an information charging Mr. Fennell with three counts of delivery of cocaine in violation of Wyo. Stat. Ann. § 35-7-1031(a)(i) (LexisNexis 2013).
[¶4] A two day jury trial was held in December 2013. The State presented testimony from the confidential informant and three law enforcement officials involved in the investigation. Mr. Fennell testified in his own defense and denied that he sold controlled substances to the informant. He said the informant owed him money and the meetings between them were for the purpose of getting paid back. His theory was that the informant set him up in order to avoid having to pay back the money he owed.
[¶5] The jury found Mr. Fennell guilty on all three counts of delivering cocaine. The district court sentenced him to serve eighteen to thirty-six months on the first count and four to six years on the second and third counts, but suspended the latter two sentences and imposed a period of probation to continue for three years after completion of the sentence on the first count. Mr. Fennell appealed.
1. Sufficiency of the Evidence
[¶6] We have said:
The Double Jeopardy Clause precludes a second trial once a reviewing court has found the evidence presented in the first trial legally insufficient to support the conviction. Tanner v. State, 2002 WY 170, ¶ 17, 57 P.3d 1242, 1247 (Wyo.2002); Burks v. United States, 437 U.S. 1, 18, 98 S.Ct. 2141, 2150, 57 L.Ed.2d 1 (1978). The only " just" remedy available upon such a finding is an order directing entry of a judgment of acquittal. Id. Thus, a finding that the State presented insufficient evidence to support the jury's guilty verdict . . . would fully resolve this case and we begin by considering that issue.
Ken v. State, 2011 WY 167, ¶ 17, 267 P.3d 567, 572 (Wyo. 2011).
[¶7] Mr. Fennell contends the evidence was insufficient to support his conviction because no qualified witness testified that the substance the informant gave to law enforcement fit within the definition of a Schedule II controlled substance. Mr. Fennell asserts the legislature has adopted a precise scientific definition of Schedule II substances, and the State was required to present a qualified witness to testify that the substance in this case was subjected to reliable testing demonstrating that it was in fact a Schedule II substance, cocaine.
[¶8] The following standards govern our review of a sufficiency of the evidence claim:
[W]e examine and accept as true the State's evidence and all reasonable inferences which can be drawn from it. We do not consider conflicting evidence presented by the defendant. We do not substitute our judgment for that of the jury; rather, we determine whether a jury could have reasonably concluded each of the elements
of the crime was proven beyond a reasonable doubt.
Ken, ¶ 19, 276 P.3d at 572, quoting Daves v. State, 2011 WY 47, ¶ 30, 249 P.3d 250, 259 (Wyo. 2011).
[¶9] The evidence relating to the testing of the substance consisted of the testimony of three law enforcement officials. First, the State presented the testimony of Special Agent Joe Brock of the United States Drug Enforcement Administration (DEA). He testified that " we" performed a field test on the substance and then submitted it to the state crime lab. Agent Brock did not testify about the results of either the field test or the lab test. The State also called Agent Jason Moon from DCI who testified that " Agent Edwards and I believe Agent Brock" field tested the substance and then he took it to the state crime lab for analysis. He testified without objection that the substance tested positive for cocaine. Finally, the State presented the testimony of Officer Aaron Wilmarth of the Cheyenne Police Department. He testified that the substance was field tested and sent to the state crime lab. He also testified, again without objection, that the test showed the substance " contained cocaine, which is a Schedule II drug."
[¶10] It appears that none of the State's witnesses performed the actual laboratory tests that confirmed the substance was cocaine. It is not entirely clear from the record whether any of the witnesses personally performed any of the field tests. It is clear that the two witnesses who testified that the substance tested positive for cocaine, Agent Moon and Officer Wilmarth, did not perform the actual testing. Absent testimony from a witness who actually performed the field or lab tests and concluded the substance was cocaine, a Schedule II drug, any testimony concerning the tests or the results of the tests was inadmissible hearsay. However, defense counsel did not object to any of the testimony concerning the testing. We long ago held that when inadmissible hearsay evidence is admitted without objection, the trier of fact may give it the weight to which it is entitled. State ex rel. Benham v. Cheever, 71 Wyo. 303, 311, 257 P.2d 337, 340 (1953). See also Gore v. Sherard, 2002 WY 114, ¶ 18, 50 P.3d 705, 711 (Wyo. 2002) (Hearsay evidence admitted without objection may be considered and given its natural probative effect.) The jury properly considered the testimony that the substance tested positive for cocaine, a Schedule II substance, and gave it the weight to which it was entitled. The evidence was sufficient to support the conviction.
2. Right to Confrontation
[¶11] Mr. Fennell contends he was denied his right to confront the witnesses against him when law enforcement officers testified concerning the results of laboratory tests performed by other individuals who did not testify. Specifically, he points to the testimony of Agent Moon and Officer Wilmarth that the substance in the bags obtained from the informant tested positive for cocaine and no fingerprints were found on the bags. Neither witness performed the laboratory testing; rather, testing of the substance and for fingerprints on the bags was done by individuals who did not testify at the trial. As with Mr. Fennell's claims of prosecutorial misconduct, we review his confrontation claim for plain error because defense counsel did not object to the testimony.
[¶12] The State responds that Mr. Fennell cannot establish plain error with respect to the drug testing because the record does not clearly show that the witnesses who testified the substance was cocaine were not involved in the field tests. The State also contends the parties stipulated that the substance was cocaine, its identity was not in dispute, and no prejudice resulted from any inability to cross-examine the individuals who conducted the testing.
[¶13] Addressing Mr. Fennell's claim that he was denied his right to confrontation when witnesses who did not do the testing for fingerprints testified no fingerprints were found, the State maintains the confrontation clause protects a defendant's right to confront the witnesses against him; the witness testimony concerning the lack of fingerprints was in Mr. Fennell's favor; therefore, he had no right of confrontation. The State further asserts Mr. Fennell had the option of calling the individuals who performed the finger
print testing in the defense portion of the trial.
[¶14] We first address the State's contention that Mr. Fennell's confrontation claim concerning the substance is precluded because defense counsel stipulated that it was cocaine. A written stipulation does not appear in the record and the district court did not instruct or inform the jury the parties had stipulated that the substance was cocaine. However, in its designation of witnesses and exhibits, the State indicated the parties had stipulated that the " substance seized is cocaine in powder form, a schedule 2 controlled substance."  In his pretrial submission, defense counsel stated, " The stipulations of the parties are set forth in the [State's] filing," thereby conceding that he had stipulated the substance was cocaine. Then in closing argument, the prosecutor told the jury twice without objection from defense counsel that the parties agreed the substance was cocaine.
[¶15] A stipulation is a substitute for evidence. Edward J. Imwinkelried & Daniel D. Blinka, Criminal Evidentiary Foundations, ch. 11 (2d ed. 2007). The stipulation in this case involved an element of the offense charged. " While an instruction cannot properly require a jury to find an element of a charged offense against a defendant in a criminal case, a stipulation can pave the way for an instruction that excuses the prosecutor from offering proof." 1 Mueller and Kirkpatrick, Federal Evidence § 4:17 (4th ed). Some courts require stipulations to be in writing, in which case the stipulation can be received as evidence and provided to the jury or the court can give a jury instruction containing the stipulation. Imwinkelried, id. ; 73 Am.Jur.2d Stipulations § 2 (2012). Other courts allow stipulations to be made orally on the record outside the presence of the jury. Imwinkelried, § 11.02. In that case, after establishing the terms of the stipulation and that the parties understand its consequences, the court informs the jury of the stipulation and instructs on its legal effect. Imwinkelried, id. None of this occurred here. The existence of any stipulation that the substance retrieved from the informant was, in fact, cocaine was not properly communicated to the jury. It might, therefore, be considered a nullity. We do not reach that issue, however, because we find that Mr. Fennell waived his right to confrontation when law enforcement officers were allowed to testify without objection that the substance tested positive for cocaine.
[¶16] In Belden v. State, 2003 WY 89, ¶ 35, 73 P.3d 1041, 1086 (Wyo. 2003) this Court held that a defendant may waive his Sixth Amendment right to confrontation. We quoted with approval from the following case:
We recognize that examination of the circumstances of each case is essential when considering any waiver of constitutional rights because " [v]ariations in the factual context giving rise to the issue of waiver of any one right of the accused are infinite." . . . . We also recognize that we must accord proper weight to the role of defense counsel in fashioning an overall trial strategy, including one involving waiver of the right to confrontation, for the defendant's best advantage. . . . A well developed body of case law protects defendants from constitutionally defective actions of their attorneys. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Given these safeguards, we reject Plitman's argument that a defendant in every instance personally must waive the right to confront the witnesses against him. We therefore join the majority of circuit courts of appeals and hold that defense counsel may waive a defendant's Sixth Amendment right to confrontation where the decision is one of trial tactics or strategy that might be considered sound.
United States v. Plitman, 194 F.3d 59, 64 (2nd Cir. 1999) (some internal citations omitted).
[¶17] In Belden, ¶ 36, 73 P.3d at 1086, the district court gave the defense a choice as to whether evidence of prior sexual assault accusations would be admitted through witness testimony or by reading a written statement to the jury. Defense counsel specified a preference for the written statement. Before the statement was read to the jury, the court presented the statement to both parties for suggestions which were incorporated into the final statement. We held under these circumstances:
Once the trial court ruled that the evidence was admissible, defense counsel had to determine how to proceed while defending the best interests of their client. Apparently, defense counsel concluded that it would be best to avoid having the accusers take the stand. Accordingly, defense counsel supported the admission of the evidence through the written statement even though that would mean waiving Belden's Sixth Amendment right to confrontation. That was a tactical decision we will not question with hindsight. Belden has failed to demonstrate that the decision constituted plain error and his claim must fail.
[¶18] Mr. Fennell's counsel apparently made a similar tactical decision not to object to hearsay testimony that the substance the informant turned over to law enforcement was cocaine. Whether that decision constituted a deficiency in performance that prejudiced Mr. Fennell's defense is a question falling within an ineffective assistance of counsel claim. For purposes of the present issue, we conclude defense counsel waived any claim Mr. Fennell may otherwise have had that he was denied the right to confront the witnesses who performed the tests showing the substance contained cocaine.
[¶19] Mr. Fennell also contends he was denied his right to confrontation because two of the State's witnesses testified that no fingerprints were found on the bags containing the cocaine although they had not performed the tests for fingerprints. One difficulty with this contention is that defense counsel was the first to raise the issue that the bags were tested for fingerprints. On cross-examination of Agent Brock, the following exchange occurred:
Q. Do you have any knowledge or idea whether my client's fingerprints were on any of the baggies we've talked about?
A. I have no idea.
Q. Is that normal to check or have a laboratory explore that?
A. It's an option to use, yes.
Then during direct examination of Agent Moon, the prosecutor proceeded as follows:
Q. The baggies you're holding there, are those the ones the cocaine was in when the buy was made?
A. . . . No, sir.
Q. . . . Why were they taken out of the original packaging?
A. For the latent print processing.
Q. . . . do you know if any results came out of that?
A. I believe no latent prints were discovered on them.
On cross-examination, defense counsel followed up with Agent Moon by asking, " . . . you're saying there were no fingerprints of Mr. Fennell on any of . . . the baggies?" Agent Moon responded: " Yes, of anybody."
[¶20] One authority has stated:
At the heart of the doctrines [of invited error and opening the door] is the notion that a party who broaches a subject in almost any way -- by argument, by relying on evidence, by putting questions to witnesses called by others, by calling witnesses and adducing their testimony -- is limited by these strategic choices. He can neither object to his own folly nor complain about reasonable countermoves by others, and usually cannot succeed on appeal in predicating claims of error on such points.
Mueller and Kirkpatrick, Federal Evidence § 1:12 (Fourth ed.). Defense counsel solicited testimony about the fingerprint testing and, when the prosecution did likewise, used the testimony to ...