Summary 2010 WY 33

Summary of Decision issued March 23, 2010

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Hernandez v. State

Citation: 2010 WY 33

Docket Number: S-09-0065

Appeal from the District Court of Carbon County, the Honorable Wade E. Waldrip, Judge.

Representing Appellant Hernandez: Diane Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel; and Kirk Allan Morgan, Senior Assistant Appellate Counsel.

Representing Appellee State: Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Jenny Lynn Craig, Assistant Attorney General.

Facts/Discussion: Hernandez challenged his convictions on four charges relating to illegal drugs.

Denial of motion to suppress: Hernandez did not dispute that the officers stopped him after he failed to signal a turn. He argued that the prosecution presented no evidence about the scope, duration, or intensity of the detention under all of the circumstances and thereby failed to meet its burden. Hernandez’s motion to suppress challenged only the validity of the initial stop and not the reasonableness of the detention or search. The record leaves no doubt that defense counsel made affirmative statements that induced the prosecutor not to present evidence about the detention and search and the district court not to consider the issue of their reasonableness. The Court applied the doctrine of invited error and did not address the issue further.
Irrelevant and prejudicial evidence: First, Hernandez characterizes as irrelevant the testimony of Agent Ford. The agent related that he interviewed two people who had been arrested on drug charges. They told him they had purchased drugs from Mr. Moxley and agreed to participate in a controlled purchase from him. Agent Ford testified about the arrest of Moxley. One of the men Moxley purchased drugs from was Hernandez. The testimony related directly to the events culminating in the arrest of Hernandez. A law enforcement officer’s testimony about the course of an investigation leading to a defendant’s arrest is not irrelevant evidence. Hernandez also challenged testimony about the amounts of methamphetamine purchased by Moxley. The evidence was about purchases made directly from Hernandez and his colleagues. Since Hernandez was charged with possession of illegal drugs with intent to deliver, the evidence of earlier deliveries tended to prove the element of intent to deliver. Hernandez also challenged the testimony that Moxley was selling a lot of drugs in Rawlins. That testimony was introduced during defense counsel’s cross-examination of Moxley. The court’s admission of evidence elicited by defense counsel cannot serve as a basis for reversal. The Court considered the testimony from Spec. Agent Bisceglia that “methamphetamine is a major problem” in Carbon County. The testimony was based on the Agent’s experience. Agent Bisceglia established his level of experience by testifying that he investigated drug-related crimes on a daily basis and that he had been involved with a large number of cases.
The prosecutor’s comments in closing arguments urged the jury to “take care of” Hernandez to help reduce the drug problem; to convict because the meth problem was so bad in Rawlins and not because of the evidence against Hernandez. After considering the comments in context, the Court stated they remained improper community outrage or protection arguments and they transgressed a clear and unequivocal rule of law. However, the Court was unable to say that the comments materially prejudiced Hernandez. Since the evidence was overwhelming, there was no reasonable probability that the improper comments changed the jury’s verdict.
The Court held there was no basis for reversing the convictions due to cumulative error.

Conclusion: The Court applied the doctrine of invited error to Hernandez’s arguments about the motion to suppress. The testimony that Hernandez complained was irrelevant directly related to the events culminating in arrest. Evidence of earlier deliveries tended to prove the element of intent to deliver and therefore was not irrelevant. Evidence elicited by defense counsel could not serve as a basis for reversal. Since the evidence was overwhelming, there was no reasonable probability that the improper comments changed the jury’s verdict. There was no basis for reversing the convictions due to cumulative error.

Affirmed.

J. Burke delivered the decision.

C.J. Voigt, dissenting: The Chief Justice would have reversed because the State’s community safety argument in the instant case was indistinguishable from the State’s community safety argument in Strange v. State which the Court found reversible.

Link: http://tinyurl.com/ye4sua4 .

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