Wells v. State ( 1992 )

MACY, Chief Justice.

Appellant Allen Craig Wells appeals from his convictions for conspiracy to distribute a controlled substance and for distribution of a controlled substance.

We affirm.

Appellant raises the following issues:

I. Whether evidence concerning telephone records and evidence derived therefrom was improperly admitted.

II. Whether the court below erred in failing to suppress inculpatory statements made by Appellant in response to questions posed by investigating officers during extradition transportation.

III. Whether testimony of witnesses about pleading guilty and/or being convicted on charges similar to or identical to those for which the Appellant was on trial and which arose out of the same criminal transaction was improperly admitted.

IV. Whether hearsay testimony by investigative agents used to buttress the credibility of a convicted felon was improperly admitted.

As a result of an investigation by the Division of Criminal Investigation (DCI), Kevin Steiner was arrested on September 12, 1989, for distributing cocaine. DCI agents subsequently conducted a search of Steiner’s residence and found, among other things, cocaine, illegal drug paraphernalia, $1,110 in cash, and a telephone bill. During an interrogation, Steiner said he bought the cocaine from Appellant, and he identified two Colorado telephone numbers on the telephone bill as being numbers which he used to contact Appellant. A DCI agent called the Drug Enforcement Agency (DEA) in Denver, Colorado, to obtain subscriber information on the two telephone numbers. One of the numbers was published, and one was not published. Using an administrative subpoena, a DEA agent determined the origin of the numbers. Agents used that information to locate and arrest Appellant.

Appellant was extradited from Colorado, and on August 15, 1990, a jury found him guilty of conspiracy to distribute a controlled substance in violation of Wyo. Stat. §§ 35-7-1042, 35-7-1031(a)(i), and 35-7-1016(b)(iv) (1988)¹ and of distributing a controlled substance in violation of §§ 35-7-1031(a)(i) and 35-7-1016(b)(iv). The district court sentenced Appellant to confinement in the Wyoming State Penitentiary for a term of not less than five years nor more than seven years for each conviction. The court ordered the sentences to run consecutively. This appeal followed.

Admissibility of Telephone Records

Appellant contends that the district court erred by receiving telephone subscriber information into evidence. Pursuant to a request by the DCI and an administrative subpoena, a DEA agent obtained records from a telephone company and located two telephone numbers which received calls from Steiner’s telephone. That information was used to find Appellant. Appellant argues that the information was inadmissible because its acquisition was prohibited by Wyo. Stat. §§ 7-3-601 to -611 (1987 & Supp.1992). Section 7-3-606(p) states:

(p) The contents of any intercepted wire, oral or electronic communication or evidence derived therefrom shall not be admitted as evidence in any trial, hearing or other proceeding in this state unless the interception was performed in accordance with this act.

Section 7-3-602 provides in pertinent part:

(a) Except as provided in subsection (b) of this section, no person shall willfully:

(i)Intercept any wire, oral or electronic communication;

(b) Nothing in subsection (a) of this section prohibits:

(ii)An officer, employee or agent of any provider of wire or electronic communications service from providing information, facilities or technical assistance to a peace officer who is authorized pursuant to this act to intercept a wire, oral or electronic communication;

(v) A peace officer from intercepting, using or disclosing to another peace officer in the course of his official duties any wire, oral or electronic communication pursuant to an order permitting the interception under this act[.]

Section 7-3-601 states in pertinent part: (a) As used in this act:

(ii) “Contents of an oral, wire or electronic communication” includes information concerning the identity of the parties participating in the communication and the existence, meaning, substance or purport of the communication;

(iii) “Electronic communication” means any transfer of signs, signals, writing, images, sounds, data or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system that affects interstate or foreign commerce but does not include:

(A) The radio portion of a cordless telephone communication that is transmitted between the cordless telephone handset and the base unit;

(B) Any wire or oral communication;

(C) Any communication made through a tone-only paging device; or

(D) Any communication made through a tracking device.

(x) “Wire communication” means any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable or other like connection, including the use of such connection in a switching station, between the point of origin and the point of reception, furnished or operated by any person engaged in providing or operating such facilities for the transmission of intrastate, interstate or foreign communications, and includes any electronic storage of such communication, but the term does not include the radio portion of a cordless telephone communication that is transmitted between the cordless telephone handset and the base unit[.]

Appellant asserts that the DEA “intercepted” a “wire communication” because it acquired electronically stored information to discover the identity of parties who participated in a communication. We disagree. “Intercept” is defined as “the aural or other acquisition of the contents of any oral, wire or electronic communication by use of an electronic, mechanical or other device.” Section 7-3-601(a)(v).

(iv) “Electronic, mechanical or other device” means any device or apparatus which can be used to intercept a wire, oral or electronic communication, other than:

(A) Any telephone, telex or telegraph equipment, or component thereof, used in the ordinary course of business ....

Section 7-3-601(a)(iv). The agents acquired the information from records kept by the telephone company in its ordinary course of business. Nothing in the record indicates that equipment was installed to intercept any wire, oral, or electronic communication in violation of § 7-3-602(a)(i).

The Admissibility of Appellant’s Statements

Appellant contends that the trial court erred by failing to suppress statements he made to agents who were transporting him from Colorado to Cheyenne, Wyoming. After Appellant was arrested, he signed an affidavit in an effort to have a public defender appointed as his attorney. Via an order dated February 20,1990, the Laramie County court appointed the public defender’s office to represent Appellant. On March 27, 1990, two agents went to Colorado to transport Appellant to Cheyenne. Upon arriving, they informed Appellant of his Miranda rights and told him that he was being charged for delivering cocaine and for conspiring with Steiner to deliver cocaine. The three of them began to drive back to Cheyenne. During the suppression hearing, one of the agents described a conversation which occurred as they drove:

A. Well, Mr. Wells just started the first conversation that had anything to do with the case by saying that he did know Kevin Steiner, and he had been to his house visiting but, you know, we had — that it was completely innocent_

Q. What’s the next piece of conversation that comes up that’s related to this case in any way?

A. Well, Mr. Wells just said, as far as cocaine goes I’ve never even seen cocaine, he said he had never seen cocaine, never used it. I said, did you see Kevin Steiner use cocaine, did you ever see cocaine in Kevin Steiner’s house....

The agent continued to ask questions, and, in response, Appellant made incriminating statements. Appellant argues that the admission of those statements into evidence violated his rights under the Fifth and Sixth Amendments to the United States Constitution.

In Ramos v. State, 806 P.2d 822 (Wyo.1991), we discussed one aspect of an accused’s right against self-incrimination. We stated:

Under the fifth amendment to the United States Constitution and article 1, section 11 of the Wyoming Constitution, an individual cannot be compelled to testify against himself in any criminal case. An accused taken into custody must be informed of this right and of his right to have counsel. Once the individual requests to be represented by counsel, the police must cease any interrogation until the accused is represented by counsel or until he waives his constitutional rights. Interrogation is defined as a “measure of compulsion above and beyond that inherent in custody itself.” Griffin v. State, 749 P.2d 246, 253 (Wyo.1988). In [Rhode Island v.] Innis, [446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980),] the United States Supreme Court stated that interrogation included “words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.” Innis, 446 U.S. at 302 [100 S.Ct. at 1690] (emphasis in original) (referred to as the “functional equivalent” of interrogation). “A statement that is not the product of interrogation or compulsion attributable to authorities or some other improper action, is voluntary and admissible.” Griffin, 749 P.2d at 254.

806 P.2d at 828 (some citations omitted). In the seminal case of Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378 (1981), the United States Supreme Court stated:

[A]n accused ... having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.

(Emphasis added.) If an accused has requested to be represented by counsel, his right against self-incrimination attaches regardless of whether the interrogating officer knows of the request. Arizona v. Roberson, 486 U.S. 675, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988); Roper v. State, 258 Ga. 847, 375 S.E.2d 600, cert, denied, 493 U.S. 923, 110 S.Ct. 290, 107 L.Ed.2d 270 (1989). As the Supreme Court stated: “Edwards focuses on the state of mind of the suspect and not of the police.” Roberson, 486 U.S. at 687, 108 S.Ct. at 2101.

The State and Appellant do not dispute that Appellant was in custody when he made incriminating statements. At that time, Appellant had been in a Colorado jail for more than three months and was being extradited to Wyoming by two DCI agents. In addition, we have no trouble concluding that Appellant was subjected to an interrogation as he and the agents traveled to Cheyenne. The quoted excerpt from the suppression hearing demonstrates that one of the agents asked Appellant direct questions about his alleged involvement in the crime. Such questioning is a “measure of compulsion above and beyond that inherent in custody itself,” Griffin v. State, 749 P.2d 246, 253 (Wyo.1988), and it is within the scope of the rule enunciated in Edwards and Ramos.

To continue with the analysis of Appellant’s contention, we must determine whether Appellant requested to be represented by counsel. The State contends that nothing exists in the record to demonstrate that Appellant requested to have counsel. Our reading of the record indicates, however, that Appellant completed and signed an “Affidavit for a Court-Appointed Attorney” and that the Laramie County court appointed the public defender’s office to represent Appellant. Both events occurred before Appellant was extradited to Wyoming. Thus, Appellant made a sufficient request to be represented by counsel before he was transported to Cheyenne. See Roper, 375 S.E.2d 600. Once that request occurred, the police were barred from interrogating Appellant until his counsel was present or until he waived his constitutional rights. Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986); Best v. State, 736 P.2d 739 (Wyo.1987).

The State argues that Appellant waived his constitutional right against self-incrimination when he initiated the conversation which led to his incriminating statements. The question of whether a conversation initiated by the accused constitutes a valid waiver of his right against self-incrimination was addressed by the United States Supreme Court in Oregon v. Bradshaw, 462 U.S. 1039, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983). In that case, the majority held that Edwards required the following two-part inquiry to determine whether an accused’s right against self-incrimination had been violated: After the accused expressed a desire to be represented by counsel, did he (1) initiate a communication, exchange, or conversation with the police and (2) under the totality of the circumstances, waive his right against self-incrimination? 462 U.S. at 1045-46, 103 S.Ct. at 2834-35.

In Bradshaw, the Supreme Court was faced with determining whether a defendant’s statement, “ ‘Well, what is going to happen to me now,’ ” was sufficient to “initiate” further discussion of his crime under Edwards. 462 U.S. at 1042, 103 S.Ct. at 2833. A plurality determined that the statement was sufficient. The plurality applied the word “initiate” in its ordinary dictionary sense and concluded that the statement could reasonably be interpreted by a law enforcement officer to evince a willingness to open up a more generalized discussion relating to the investigation. The plurality noted, however, that bare statements or inquiries concerning routine incidents of the custodial relationship should not ordinarily be found to satisfy the initiation requirement. The plurality, having found no Edwards violation, went on to conclude that the defendant knowingly and intelligently waived his constitutional rights under the particular facts of that case.

Under Article 1, Section 11 of the Wyoming Constitution, we adopt the two-part test articulated in Bradshaw. See Best, 736 P.2d 739. Applying the word “initiate” as it is commonly understood, we hold that the DCI agents could reasonably interpret Appellant’s statement, “ ‘he did know Kevin Steiner, and he had been to his house visiting but, you know, we had — that it was completely innocent,’ ” as being an expression of willingness to engage in a generalized discussion regarding the investigation.

Appellant made his statement shortly after he was given his Miranda rights, and his statement was the first comment made regarding the case. The statement directly embraced topics central to the crimes charged. No violation of the Edwards prohibition against police-initiated interrogation existed in this case.

We must now determine if Appellant validly waived his right against self-incrimination. As this Court has previously discussed, a waiver must be knowing and intelligent in light of the particular facts of the case. When the accused is in custody, there is a presumption that incriminating statements are not made voluntarily. The burden is on the State to show otherwise. Garcia v. State, 777 P.2d 603 (Wyo.1989); Dryden v. State, 535 P.2d 483 (Wyo.1975); Maki v. State, 18 Wyo. 481, 112 P. 334 (1911). See also Frias v. State, 722 P.2d 135 (Wyo.1986).

An examination of the facts in this case discloses that Appellant knowingly and intelligently waived his right against self-incrimination. Immediately prior to being transported to Wyoming, Appellant was advised of his Miranda rights, and he stated that he understood them. Shortly thereafter, Appellant voluntarily initiated a conversation pertaining to his case. No impropriety on the part of the DCI agents is reflected in the record.

Sufficient evidence existed for the trial court to find that both prongs of the Edwards/Bradshaw test were satisfied in this case. The trial court did not err in admitting the disputed evidence.

Admissibility of Prior Convictions

Appellant contends that the district court erred by allowing two witnesses to testify about their prior convictions which arose out of the circumstances leading to Appellant’s convictions. In Grable v. State, 601 P.2d 1001, 1003 (Wyo.1979) (citing Kwallek v. State, 596 P.2d 1372 (Wyo. 1979)), this Court held:

[W]hen two persons are indicted for separate offenses growing out of the same circumstance, the fact that one has pleaded guilty is inadmissible against the other when offered by the State in its casein-chief.

The rationale is that evidence of a witness’ guilt for an offense which arose out of a circumstance leading to the defendant’s trial implies that the defendant is also guilty. Such an implication violates a defendant’s right to have a trial on its own merits. Kwallek, 596 P.2d 1372.

We hold that this case does not involve a violation of the rule announced in Kwallek. An examination of the testimony by the two witnesses reveals they did not state that their convictions stemmed from the same set of circumstances for which Appellant was on trial. The fact that the jury may have inferred that the two witnesses were convicted for their involvement in Appellant’s criminal activity is not prohibited by Kwallek.

Corroborative Testimony

Appellant argues that the district court erred by allowing a DCI agent to testify about statements made to him by a witness who previously testified for the State. He also asserts that the district court improperly permitted the agent to say why he believed the witness’ version of the facts. Steiner was the first witness to testify for the State. The State subsequently called a DCI agent who testified about statements which Steiner made during his investigation. Appellant’s counsel objected to the testimony as being inadmissible hearsay.

W.R.E. 801(d)(1)(B) provides:

A statement is not hearsay if:

(1) Prior Statement by Witness. — The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is ... (B) consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive. ...

W.R.E. 801(d)(1)(B) contains two conditions:

First, the prior statement must be consistent with the declarant’s testimony. Second, there must be an express or implied charge of recent fabrication or of improper influence or motive.

Lacey v. State, 803 P.2d 1364, 1368 (Wyo.1990). The testimony given by the DCI agent satisfies both conditions. The parties do not dispute that the DCI agent’s testimony was consistent with Steiner’s testimony. The record also reveals evidence of an implied charge of improper motive or of recent fabrication. On cross-examination, Appellant’s counsel asked questions which suggested that Steiner: (1) told police inconsistent stories; (2) sought to cut a deal with the authorities upon his arrest; (3) spent a lot of time before the trial talking with the prosecutor and investigators; and (4) received a light sentence for his guilty pleas. Under those circumstances, the district court did not err by allowing the DCI agent to testify about Steiner’s prior consistent statements.

Finally, Appellant contends that the following exchange between the State and a DCI agent constituted error per se under the authority of Bennett v. State, 794 P.2d 879 (Wyo.1990), and Stephens v. State, 774 P.2d 60 (Wyo.1989):

[PROSECUTING ATTORNEY]: Did you receive other information that caused ... you to believe Mr. Steiner—

[DEFENSE ATTORNEY]: It’s inadmissible under the recent case of Bennett versus State.

THE COURT: Overruled.

[PROSECUTING ATTORNEY]: You may answer.

[DCI AGENT]: I received a fingerprint identification of Allen Craig Wells’ left thumb having come in contact with a bag that contained the nearly five ounces of cocaine I found in Kevin Steiner’s house.

Two rules emanate from Bennett and Stephens. First, the State may not elicit opinion testimony from any witness, lay or expert, concerning the guilt of the accused. Bennett, 794 P.2d 879; Stephens, 774 P.2d 60. Second, the State may not elicit from an expert witness his expert opinion regarding another witness’ credibility. Stephens, 774 P.2d 60. See also Montoya v. State, 822 P.2d 363 (Wyo.1991); Zabel v. State, 765 P.2d 357 (Wyo.1988); and Lessard v. State, 719 P.2d 227 (Wyo.1986). Both rules are prophylactic in nature. They preserve for the jury the responsibilities of resolving factual issues to determine guilt or innocence and of judging the credibility of witnesses. Neither rule was violated in the instant case.

The DCI agent was not asked about, and he did not express an opinion as to, Appellant’s guilt. Nor did he offer an expert opinion concerning whether Steiner was a truthful witness. The DCI agent was merely asked to state a factual basis for believing Steiner after Steiner’s credibility had been attacked by opposing counsel. The DCI agent did so. His testimony was relevant to the issue of Steiner’s credibility. and did not violate the Bennett/Stephens rules. The trial judge did not abuse his discretion by allowing the testimony.

Affirmed.

CARDINE, J., files a specially concurring opinion.

URBIGKIT, J., Retired, concurs in part and dissents in part and files an opinion.

1 . Section 35-7-1042 provides:

Any person who attempts or conspires to commit any offense under this article within the state of Wyoming or who conspires to commit an act beyond the state of Wyoming which if done in this state would be an offense punishable under this article, shall be punished by imprisonment or fine or both which may not exceed the maximum punishment prescribed for the offense the commission of which was the object of the attempt or conspiracy.

Section 35-7-1031(a)(i) provides:

(a) Except as authorized by this act, it is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance. Any person who violates this subsection with respect to:

(i) A controlled substance classified in Schedule I or II which is a narcotic drug, is guilty of a crime and upon conviction may be imprisoned for not more than twenty (20) years, or fined not more than twenty-five thousand dollars ($25,000.00), or both[.]

Section 35-7-1016(b)(iv) states:

(b) Substances, vegetable origin or chemical synthesis. — Unless specifically excepted or unless listed in another schedule, any of the following substances whether produced directly or indirectly by extraction from substances of vegetable origin, independently by means of chemical synthesis or by combination of extraction and chemical synthesis:

(iv) Coca leaves and any salt, compound, derivative, or preparation of coca leaves, and any salt, compound, derivative, or preparation thereof which is chemically equivalent or identical with any of these substances, but not including decocainized coca leaves or extractions which do not contain cocaine or ecgo-nine[.]