from the District Court of Park County The Honorable Bill
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.
DAVIS, C.J., and BURKE [*] , FOX, KAUTZ, and BOOMGAARDEN, JJ.
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.
We find a single issue dispositive of Mr. Rodriguez's
Does Mr. Rodriguez's failure to file a pretrial motion to
suppress identification evidence preclude this Court's
review of his due process claim?
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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
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.
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.
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
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
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
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
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.
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?
Q. So that was the only person you knew him as was Roy?
Q. Until you were shown that picture; is that right?
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
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
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
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
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
A. I guess so, yes, sir.
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.
Waiver of Appellate Review under W.R.Cr.P. 12
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
W.R.Cr.P. 12 governs pretrial pleadings and motions and the
assertion of objections and ...