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Rodriguez v. State

Supreme Court of Wyoming

March 5, 2019

ROGELIO RODRIGUEZ, JR., Appellant (Defendant),
THE STATE OF WYOMING, Appellee (Plaintiff).

          Appeal from the District Court of Park County The Honorable Bill Simpson, Judge

          Representing Appellant: Office of the State Public Defender: Diane Lozano, Wyoming State Public Defender; Kirk A. Morgan, Chief Appellate Counsel; Christopher Humphrey, Assistant Appellate Counsel. Argument by Mr. Humphrey.

          Representing Appellee: Peter K. Michael, Wyoming Attorney General; Christyne M. Martens, Deputy Attorney General; Caitlin F. Harper, Senior Assistant Attorney General; Darrell D. Jackson, Faculty Director, Catherine M. Mercer, Student Director, and Ellen H. Lee, Student Intern, of the Prosecution Assistance Program. Argument by Ms. Lee.

          Before DAVIS, C.J., and BURKE [*] , FOX, KAUTZ, and BOOMGAARDEN, JJ.


         [¶1] A jury convicted Rogelio Rodriguez, Jr. of delivery of a controlled substance. On appeal, he claims his right to due process was violated when the district court admitted into evidence a witness identification that was based on a single photo, rather than a photo array. We conclude that because Mr. Rodriguez did not file a pretrial motion to suppress evidence of the identification, as required by W.R.Cr.P. 12, he failed to preserve his due process claim for appellate review. We therefore affirm.


         [¶2] We find a single issue dispositive of Mr. Rodriguez's appeal:

Does Mr. Rodriguez's failure to file a pretrial motion to suppress identification evidence preclude this Court's review of his due process claim?


         [¶3] On October 20, 2014, Willy Ayers, a Division of Criminal Investigation (DCI) confidential informant (CI), called DCI agent Juliet Fish and informed her he had received an offer to purchase a gram of methamphetamine from Michael Rosacci, an individual known to DCI from other drug investigations. Agent Fish instructed Ayers to set the buy for 7:00 that evening and to meet her at 6:45 in the parking lot of a Cody hotel. She then contacted DCI agent Darrell Steward to assist with the controlled buy.[1]

         [¶4] On her way to meet Mr. Ayers, Agent Fish stopped at the DCI office to obtain a photo of Mr. Rosacci. She explained, "We do that on every controlled purchase. We want to positively identify the person we are purchasing drugs from." At about 6:45, she and Steward met with Mr. Ayers and his wife, Jessica Ayers, also a CI, in the hotel parking lot. Pursuant to DCI procedure, the agents searched Mr. and Mrs. Ayers and their vehicle for weapons, cash, and controlled substances. After finding none, Agent Steward fitted Mr. Ayers with a wireless transmitter and provided him with $150 to make the methamphetamine purchase.

         [¶5] Mr. Ayers had arranged to meet Mr. Rosacci at a gas station in Cody at 7:00, and Agents Fish and Steward followed in separate vehicles. Agent Steward parked across the highway from the station, while Agent Fish parked at the gas pumps and pretended to fuel her vehicle. The Ayers parked in a parking space at the front of the station, and within a couple of minutes, Mr. Rosacci arrived in a blue minivan and parked on the left side of the Ayers' vehicle.

         [¶6] When the van pulled in next to the Ayers' vehicle, Mr. Ayers, who was in the passenger seat, got out and approached the van's passenger side. He discovered the passenger was not Mr. Rosacci and was not a person known to him. He then circled to the driver's side to talk to Mr. Rossaci, who introduced his passenger as "Roy." Mr. Rossaci informed Mr. Ayers that because he had already sold his methamphetamine, the Ayers would need to follow him to Ralston where he could get more.

         [¶7] Back in his vehicle, Mr. Ayers informed the agents of the change in plans, and the agents followed the Ayers and Rosacci vehicles to Ralston, a fifteen to twenty-minute drive. When they arrived, the Rosacci and Ayers vehicles pulled into a convenience store parking lot. Agent Fish parked across the highway kitty-corner from the parking lot, and Agent Steward stayed further back but maintained visual and audio contact with the Ayers.

         [¶8] Mr. Rosacci and Mr. Ayers remained in their vehicles for a time, visiting through their open windows. Mr. Rosacci eventually exited his van and got into the backseat of the Ayers vehicle, and a short time later his passenger joined him. When Mr. Rosacci's passenger entered the Ayers' vehicle, he introduced himself as "Roy." Agent Fish heard the introduction over the wireless transmitter and also saw the passenger as he stood in the parking lot. She recognized him as Rogelio Rodriguez, an individual with whom she had had numerous contacts during her years in law enforcement. She could not see his face, but she recognized his voice, his stature, his walk, how he acted, and how he conducted himself.

         [¶9] Mr. Rodriguez and Mr. Rosacci remained in the Ayers' vehicle and continued to chat until a gray car pulled up to the parking lot. Mr. Rodriguez then exited the Ayers' vehicle and had a conversation with someone in the gray car. After that, Mr. Rodriguez and Mr. Rosacci got in their van and drove to a nearby bar, while the Ayers remained in the convenience store parking lot.

         [¶10] At the bar, Mr. Rodriguez left the van and entered the bar through a lit doorway. He remained there for a minute or two and then returned to the parking lot, where he spoke with a female at the back of a red truck. Agent Steward was parked about sixty to seventy yards from the bar, and he was able to see Mr. Rodriguez's profile when he entered the bar and his facial features when he exited the bar. He also saw him in the taillights of the red truck. He had not met Mr. Rodriguez, but he had previously seen photographs of him and recognized him from those photographs.

         [¶11] After speaking with the female at the back of the red truck, Mr. Rodriguez returned to Mr. Rosacci's van, and the two drove back to the convenience store parking lot. Eventually, at about 8:25 p.m., a white car pulled up to the parking lot. Mr. Rodriguez got into the white car, which drove him back to the bar, where he again met with the woman in the red truck. After that meeting, the white car returned Mr. Rodriguez to the convenience store parking lot.

         [¶12] At some point in the back and forth between the convenience store and bar, Mr. Ayers gave Mr. Rosacci the buy money and watched as Mr. Rosacci gave it to Mr. Rodriguez. When Mr. Rodriguez returned from his second trip to the bar, he apologized to Mr. Ayers for the wait and handed him a small plastic baggy containing a gram of methamphetamine. The Ayers then left the parking lot and drove back to Cody.

         [¶13] On the return trip to Cody, Agent Fish called Mr. Ayers and instructed him to pull over. She retrieved the wire and methamphetamine, and then they continued on to the hotel in Cody where they had previously met. Once at the hotel, Agent Fish contacted dispatch and requested a photograph of Mr. Rodriguez. Agent Steward then interviewed Mr. Ayers and showed him the photograph of Mr. Rodriguez, and Mr. Ayers identified him as the passenger in Mr. Rosacci's vehicle from whom he had purchased the methamphetamine.[2]

         [¶14] On October 31, 2016, over two years after the controlled purchase, the State charged Mr. Rodriguez with one count of delivery of a controlled substance. A two-day jury trial was held from May 31 to June 1, 2017, at which Agents Fish and Steward testified as to their observation of and ability to recognize Mr. Rodriguez during the controlled buy, and Mr. Ayers identified Mr. Rodriguez. Defense counsel cross-examined Agents Fish and Steward on their abilities to observe and recognize Mr. Rodriguez. Defense counsel also cross-examined Agent Steward and Mr. Ayers on the process by which Mr. Ayers was shown a photo of Mr. Rodriguez and asked if he was the person who sold him methamphetamine during the controlled buy. Mr. Rodriguez did not, before or during trial, object to the admissibility of Mr. Ayers' testimony concerning his photo identification.

         [¶15] The jury found Mr. Rodriguez guilty, and the district court thereafter sentenced him to a prison term of five to seven years. Mr. Rodriguez filed a timely notice of appeal to this Court.


         [¶16] The dispositive issue in this case is one of waiver. "While the question of waiver is often one of fact, when the facts and circumstances relating to the subject are admitted or clearly established, waiver becomes a question of law which we consider de novo." Verheydt v. Verheydt, 2013 WY 25, ¶ 21, 295 P.3d 1245, 1250 (Wyo. 2013). Because the record is clear and the facts relating to waiver are not disputed, our review is de novo.


         [¶17] Mr. Rodriguez raises a single issue on appeal. He asserts that Agent Steward used an impermissibly suggestive identification procedure when the agent asked Mr. Ayers to identify Mr. Rodriguez using a single photo rather than a photo array. On that basis, he contends Mr. Ayer's identification violated his right to due process.

         [¶18] The State disputes Mr. Rodriguez's due process claim on the merits. It also asserts, however, that because Mr. Rodriguez did not raise his due process claim before the district court, and the claim is neither jurisdictional nor fundamental, he has waived appellate review of the claim. In reply, Mr. Rodriguez offers three arguments. First, he asserts that he adequately preserved his due process argument through cross-examination of witnesses. Second, he contends his failure to raise his due process claim was a reviewable forfeiture, not an unreviewable waiver. Third, he argues his due process claim is of such a fundamental nature that this Court should address it even if it was not properly preserved below.

         [¶19] We will first address Mr. Rodriguez's assertion that he preserved his due process claim through his witness cross-examination. We will then turn to the waiver question.

          A. Issue Preservation

         [¶20] Defense counsel cross-examined Agent Steward and Mr. Ayers concerning the process used to obtain Mr. Ayers' photo identification of Mr. Rodriguez. Agent Steward testified on cross-examination:

Q. Isn't it generally recommended that if you want a victim to identify someone, that you give them an array of pictures rather than just one photograph?
A. A lot of times I believe that comes down to department policy. When I was with the Cody Police Department, say for instance, working a forgery case or something along that line, yes, we did show them a photo lineup, as we referred to it, of similar people then have them pick them out.
Since I have been with the Department of Criminal Investigations, I have never, to my recollection, ever shown a photo array or photo lineup for any of our investigations.
Q. But you have never had any classes in dealing with identifying people, with victims -
A. Identifying victims or -
Q. Identifying the alleged perpetrator?
A. Unless it was at the academy clear back in 1988 or '89, I don't recall any.
Q. You're not that old.
A. Actually, I am.
Q. So you're not familiar with any of the studies that go into the problems with identifying suspects to alleged victims?
A. Well, I am not aware of any official studies but am aware of issues that can arise from that, yes.
Q. Well one of the problems is that sometimes people are shown a photograph and they think it is that person, they get that in their mind and then they make that identification and then sometimes it can be found out that wasn't the right person; isn't that true?
A. I suppose it could happen.

         [¶21] Mr. Ayers testified:

Q. On this evening, until you were presented that photograph, you didn't know who he was, did you?
A. Well I was introduced through Mr. Rosacci at the [gas station] in Cody so -
Q. He introduced him as?
A. Roy.
Q. So that was the only person you knew him as was Roy?
A. Yes.
Q. Until you were shown that picture; is that right?
A. Yes.
Q. The picture you were shown had Mr. Rodriguez's name on it; isn't that correct?
A. I can't exactly remember. I just remember it being a mugshot from my experience in, like, I have had a sheriff print out before.
Q. So they told you that that was Mr. Rodriguez?
A. They just asked.
Q. They just asked if it was Mr. Rodriguez?
A. If that identified with the person that was in the vehicle.
Q. And given the name of Mr. Rodriguez?
A. I don't recall. They might have.
Q. So at the time that you were presented that picture, since they told you that that was basically Mr. Rodriguez, that was when you firmed up in your mind that is who this individual was today?
A. No, no, I firmed because I was told his name was Roy.
From then on, they asked me if this was guy. I said yes, that is Roy, and they said Rogelio and I think that was about what happened.
Q. They didn't show you any other pictures?
A. Just one of Mr. Rosacci.
Q. You immediately assumed that was the person you saw at the van?
A. They didn't show it to me. They showed me one at the beginning of the interview, another one later, so it wasn't like back-to-back or nothing like that, if that is what you're inquiring.
Q. So they showed you two different pictures?
A. They had two different pictures, one of the defendant, and one of Mr. Rosacci.
Q. Mr. Rosacci was an individual that you had used meth with in the past and he was the one you decided to rat out to the DCI?
A. I guess so, yes, sir.

         [¶22] A non-jurisdictional issue is not preserved for appeal unless it is raised before the district court "with at least a minimum effort to present a cogent legal argument." Flood v. State, 2007 WY 167, ¶ 12, 169 P.3d 538, 543 (Wyo. 2007) (quoting Bailey v. State, 12 P.3d 173, 178 (Wyo. 2000)). Defense counsel's cross-examination reflects an attempt to discredit Mr. Ayers' identification of Mr. Rodriguez. It does not reflect a cogent due process argument to the district court, or even a due process objection. We therefore reject Mr. Rodriguez's contention that his witness cross-examination preserved his due process argument for appeal.

         B. Waiver of Appellate Review under W.R.Cr.P. 12

         [¶23] Although the State did not base its waiver argument on W.R.Cr.P. 12, the parties' briefing unearthed the question of whether a defendant may seek plain error review of an evidence admissibility question when the defendant did not file a pretrial motion to suppress as required by W.R.Cr.P. 12(b)(3). While this Court has decided a number of cases that involve objections for which Rule 12(b) would require a pretrial motion, we have not previously addressed the propriety of a plain error review of such claims. Given the opportunity to now answer that question, we exercise our discretion to do so in order to clarify the correct disposition of Rule 12 "waivers" in this and future cases.[3]

         [¶24] W.R.Cr.P. 12 governs pretrial pleadings and motions and the assertion of objections and ...

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