435 P.3d 399
Wyo.2019Background
- Controlled buy: Confidential informant Willy Ayers (with DCI agents Fish and Steward monitoring) purchased methamphetamine from Michael Rosacci’s vehicle; the seller who handed over the drugs was introduced as "Roy" and later identified as Rogelio Rodriguez.
- Identification procedure: After the buy, Ayers was shown a single photograph of Rodriguez (not a photo array) and identified him as the person who sold the methamphetamine.
- Trial: Rodriguez was charged with delivery of a controlled substance; at trial Agents Fish and Steward and Ayers testified; defense cross-examined witnesses about the identification procedure but made no pretrial motion to suppress nor objected at trial to admission of Ayers' photo identification.
- Conviction and appeal: Jury convicted Rodriguez; he appealed, arguing the single-photo identification was impermissibly suggestive and violated due process.
- Preservation/waiver dispute: The State argued Rodriguez waived appellate review by failing to file the W.R.Cr.P. 12(b)(3) pretrial motion to suppress; the Court framed whether Rule 12 noncompliance bars plain-error review.
Issues
| Issue | Rodriguez's Argument | State's Argument | Held |
|---|---|---|---|
| Whether failure to file a Rule 12(b)(3) motion to suppress identification precludes appellate review of a due process claim | Rodriguez: cross-examination preserved the due process claim; if not, at least the failure was a forfeiture allowing plain-error review; claim is fundamental so should be considered | State: no pretrial suppression motion was filed; Rule 12(g) waiver applies and bars appellate review unless good cause shown | Held: Failure to file the Rule 12(b)(3) motion constituted waiver under W.R.Cr.P.12(g) and bars appellate review absent good cause; Rodriguez showed no good cause, so claim waived and conviction affirmed |
Key Cases Cited
- United States v. Olano, 507 U.S. 725 (1993) (distinguishes waiver from forfeiture)
- United States v. Burke, 633 F.3d 984 (10th Cir.) (Rule 12 waiver bars Rule 52 plain‑error review)
- United States v. Rose, 538 F.3d 175 (3d Cir.) (policy reasons supporting waiver approach)
- Soto v. United States, 794 F.3d 635 (6th Cir.) (discussing post‑2014 Rule 12 amendments and distinction between waiver and forfeiture)
- Verheydt v. Verheydt, 295 P.3d 1245 (Wyo. 2013) (definition of waiver and requirement to manifest intent clearly)
- Nunamaker v. State, 401 P.3d 863 (Wyo. 2017) (forfeiture v. waiver distinction; waived errors not reviewable)
- Triplett v. State, 406 P.3d 1257 (Wyo. 2017) (treating failure to raise pretrial charging objection as waiver)
- Hadden v. State, 42 P.3d 495 (Wyo. 2002) (trial court discretion to excuse late suppression claim; caution about assuming late motions are non-waiving)