Fennell v. State, 350 P.3d 710

Fennell was convicted by a jury of three counts of delivery of cocaine; informant Wheeler conducted controlled buys under police supervision with cash and recording devices.
Laboratory testing of the seized substances yielded cocaine; the State presented testimony from three law enforcement officers, not from the actual lab technicians.
Defendant testified he was owed money and the informant set him up; the informant and officers testified at trial.
The district court sentenced Fennell to prison terms on counts 2 and 3 with probation, and this appeal challenges multiple trial conduct issues.
This opinion reverses the conviction and remands for a new trial due to ineffective assistance of counsel and related errors.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of the evidence	Fennell argues no qualified witness testified the substance was Schedule II cocaine.	State asserts sufficient evidence via the informant’s reports and officer testimony.	Insufficient-witness defect did not render evidence insufficient; circumstantial and hearsay evidence supported conviction.
Right to confrontation	Witnesses who performed or authored tests were not testified by those who performed them; denial of confrontation.	Defense waived confrontation by not objecting; stipulation and trial strategy may justify waiver.	Waiver found; no plain error requiring reversal for confrontation issues.
Prosecutorial misconduct and improper testimony	Prosecutor elicited opinions about guilt and vouched for witnesses; improper rebuttal witness.	Defense objected minimally; strategy may have invited the issues; errors prejudicial.	Plain-error review satisfied for some instances; overall not reversible for all, but several errors supported remand for new trial.
Ineffective assistance of counsel	Counsel failed to object to improper testimony, demand 404(b) notice, and play audio tapes in full.	Defense strategy justified in some respects; failures prejudiced the defense.	Counsel’s performance deficient in key areas; cumulative error contributed to prejudice; reversed and remanded for new trial.

Tanner v. State, 2002 WY 170 (Wy. 2002) (preliminary standard for sufficiency of evidence and double jeopardy considerations)
Burks v. United States, 437 U.S. 1 (U.S. 1978) (insufficient evidence as basis for acquittal remedy)
Ken v. State, 267 P.3d 567 (Wyo. 2011) (set of standards for sufficiency review and appellate practice)
Belden v. State, 73 P.3d 1041 (Wyo. 2003) (admissibility of stipulations and confrontation considerations)
Cureton v. State, 169 P.3d 549 (Wyo. 2007) (testimony aiding understanding of evidence without conveying guilt)
Bennett v. State, 794 P.2d 879 (Wyo. 1990) (limits on opinion testimony about guilt and officer bias)
Carter v. State, 282 P.3d 167 (Wyo. 2012) (plain error when officer expresses ultimate conclusion of guilt)
Ogden v. State, 34 P.3d 271 (Wyo. 2001) (credibility-related testimony by law enforcement procedures)