Luis A. JANDRO, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
No. 87-252.
Supreme Court of Wyoming.
Oct. 11, 1989.
781 P.2d 512
Wyoming Public Defender Program: Leonard D. Munker, State Public Defender, Thomas B. Jubin, Asst. State Public Defender, and Mike Cornia, Asst. State Public Defender, for appellant.
Before CARDINE, C.J., and THOMAS, URBIGKIT, MACY and GOLDEN, JJ.
THOMAS, Justice.
The principal question presented in Luis Jandro‘s appeal relates to the admissibility of statements of co-conspirators in a prosecution for conspiracy to deliver methamphetamine, particularly with respect to the impact upon Jandro‘s right of confrontation. Other issues which are presented involve whether there was probable cause to arrest Jandro so that money taken from him in a search incidental to his arrest was properly admitted into evidence and whether the failure of the arresting officers to
Jandro was convicted of conspiring to deliver methamphetamine, as defined in Schedule II,
In his Brief of Appellant, Jandro advises the court of the following issues for review:
“I. There was insufficient probable cause to arrest appellant, and evidence obtained pursuant to that unlawful arrest was erroneously admitted into evidence at trial.
“II. Upon arresting appellant, the law enforcement officers failed to obtain a written or recorded waiver of Miranda rights and appellant‘s subsequent statements should have been suppressed.
“III. It was error to admit the hearsay statements of alleged co-conspirators because the State never made a prima facie showing of conspiracy involving appellant.”
The State of Wyoming, as appellee, identifies substantially the same issues, but restates them to be:
“I. Did probable cause for appellant‘s arrest exist and was evidence obtained pursuant to that arrest properly admitted?
“II. Does failure to obtain a written waiver of Appellant‘s Miranda rights amount to harmless error?
“III. Did the State make a prima facie showing of a conspiracy involving appellant?”
A summary of the events disclosed by the record, which culminated in the arrest and conviction of Jandro, among others, commences with the furnishing to John Downing of $1,500 in recorded $100 bills by a Casper detective. This money was to pay for an ounce of methamphetamine that Downing had obtained from a Mrs. Noveline Miles. Mrs. Miles was a resident of California and was determined to be one of Jandro‘s coconspirators. Earlier, Downing had promised Gene Nordgren, another coconspirator, that later, on the same afternoon or evening, he would pay Nordgren for the methamphetamine after he had collected from his “customer.” Downing made the promised payment, using the identified bills, and then dropped out of the picture. Nordgren handed the recorded money to Miles and sometime later, around 10:30 P.M., Nordgren and Miles rented a car, picked up Nordgren‘s brother, Steve,
The following morning, January 16, 1987, the two Nordgrens and Miles, still under surveillance, met with an individual named Marco Macias (Marco) at a Rawlins motel where Jandro and Marco were staying. The Casper police and the Wyoming Department of Criminal Investigation (DCI) earlier had obtained information from a previously reliable informant that Marco, a resident of California, had brought methamphetamine into the Casper area on at least one prior occasion. Their belief was that he had done the same thing on other occasions. The reliable informant had told the authorities that Marco and a partner, who was not identified, again were engaged in delivering methamphetamine into Wyoming.
In the motel room in which Marco and Jandro were staying, Gene Nordgren and Marco discussed terms and other arrangements for the purchase of controlled substances. Miles simply watched and listened. Apparently, she was simply to serve as a middleperson or introducer and be an observer, and Gene Nordgren was to do the actual dealing. At the trial, her testimony was that she had gone along on this trip only because she was bored in Casper. Even so, she helped with computations and the determination of prices. She denied any past drug dealings with Marco, but she testified that she had known him from various meetings back in California. Even given her prior acquaintance with Marco, it appears that Steve Nordgren, not Miles, was the primary contact person between Marco and Gene Nordgren.
Marco wanted some “good will” money before he would agree to release any controlled substances. Miles gave the $1,500 in recorded bills to Gene Nordgren who then handed it over to Marco. This was understood to be a short-term loan due later the same day with “interest” amounting to $500. Gene Nordgren added another $150 of his own. This seemed to satisfy Marco who then “fronted” the three, Gene Nordgren, Steve Nordgren, and Miles, with eight ounces of methamphetamine, four ounces of cocaine, and a pound of marijuana. The agreed price was $11,650, so the $1,650 paid at this time really was nothing more than “good will.” The balance of $10,000 was to be paid the next day after the three dealers had resold the controlled substances. During these events, except for a brief interlude when he woke up and rubbed his eyes before falling back down on the bed, Jandro was asleep in the room. He did not participate in the conversations or negotiations relating to this transaction.
The two Nordgren brothers and Miles then took their new supply of controlled substances and drove to Riverton where they left Gene Nordgren to dispose of their stock. Gene Nordgren had told the other two that he believed he could sell it all to Mike Etheridge, another known dealer in controlled substances, in one transaction. Steve Nordgren and Miles returned to Casper.
Etheridge, although quite willing to sample the merchandise, was not able to dispose of an amount as large as this, and he and Gene Nordgren decided to drive around the state in an effort to sell it in other locations. While pursuing this plan, Etheridge and Gene Nordgren got involved in a high speed chase between Powder River and Casper at the culmination of which they were arrested. During the latter part of the chase, they jettisoned amounts of marijuana and methamphetamine from the vehicle, together with various other objects, some of which were recovered by the arresting officers. Those officers were members of the same surveillance team that had monitored the Downing transaction in Casper and had then followed the
While these other events were transpiring, Marco and Jandro had moved to Douglas where they rented another motel room. During the course of the day, Marco called Miles, who by then was now back in Casper, to inquire about Gene Nordgren and the rest of his money. Both of them were unaware of Gene‘s arrest. Around 7:00 P.M., Miles, at the suggestion of Marco, went from Casper to Douglas where there was, supposedly, no “heat” (a slang term for police interest). On this journey, Miles was accompanied by her brother, Nick Dennis, and a friend of the brother, Jose Olquin. When they arrived in Douglas, she was not permitted to go directly to the motel room occupied by Jandro and Marco. Instead, she was directed to meet Jandro in a nearby field with the understanding that he then would lead her to the motel room. This was Jandro‘s first direct contact with Miles. The outdoor meeting occurred as planned, and those two, leaving Dennis and Olquin in the car, proceeded to the motel room where they met with Marco. Miles was without funds, and she asked Marco for the money she had fronted for the controlled substances. Her contention was that she was not responsible for any losses because she was simply a middle-person. Marco refused the request, advising her that Jandro had the money. Miles testified that Jandro exploded at that point, yelling that he “had $30,000 in this and Gene had better come back with his money, that he would break his arms and legs or do what-ever he had to do to get his $10,000.” She also testified that when Marco asked Jandro to return the money to her, Jandro laughed, waved a wad of money and refused, saying “[T]his is our money now, it is not yours.” Jandro did lend Miles $30 for a motel room so that she would not return to Casper that night. She left and rented a room across the street in which she spent the night while awaiting the return of Gene Nordgren and her money.
On the next morning, January 17, 1987, Gene Nordgren, in furtherance of his agreement to cooperate and under electronic surveillance, met Jandro and Marco in their motel room. After leaving, he advised the detectives that only two men, Marco and Marco‘s partner, were in the room. Marco soon left the room and, after walking around the lobby for a short time, returned. Minutes later, Jandro left and walked to the lobby. He was looking out the front window when he noticed a Douglas police car driving up. He immediately picked up a house phone and started to dial. At this point, one of the DCI investigators who had monitored the original Downing transaction in Casper approached Jandro, identified himself, and proceeded to question him. The investigator first asked Jandro if he was a guest. Jandro said that he was, but balked when he was asked his name and room number. Jandro stated this was private information although he did produce a California driver‘s license for identification. Then the investigator asked him if he knew someone named Marco, and Jandro denied that acquaintance. Jandro also denied knowing anyone named Noveline or Nordgren.
The investigator, knowing these latter answers were false, then placed Jandro under arrest for conspiracy to deliver a controlled substance. Miles had been arrested a few minutes earlier, and Marco was arrested a few minutes later. The investigator advised Jandro of his constitutional rights and then searched him. He found eleven of the original marked bills in Jandro‘s shirt pocket. Jandro had agreed to this search, but he had not given a written consent nor had he waived his rights under the constitution in writing. In response to questions by the arresting officer, Jandro first said he had not been in Rawlins but, when advised that the officer knew he had been, Jandro agreed that he had been in Rawlins and had come from California to Wyoming to look at cars. He said he was not a car dealer, but was a car broker and had a couple hundred dollars on his person. After $252 was found in his billfold, he denied having any other money but, upon being searched incidental to his arrest, $1,652 was found in his shirt pocket. He
Jandro was interviewed again the next day and discussed some scale weights with the arresting officer. Jandro said that they were his and he had brought them from California. He said they were used in his employment as a hazard waste disposal operator for IBM Company, and he had brought them along in case he had a job interview in Wyoming. He again explained that he had come to Wyoming looking for car deals, and he also advised that the money had been obtained from Marco when they were in Rawlins. He further explained that he rented motel rooms under an alias in case the car deals in which Marco was involved turned out to be illegal. While not incriminating him directly, Jandro‘s statements, under the circumstances, clearly were less than candid and quite suspicious in some respects.
As the case was wound up, Noveline Miles entered pleas of guilty to two conspiracies to deliver controlled substances. One of those involved Gene Nordgren and arose out of the original sale to Downing in which Jandro was not implicated. The other involved Jandro because of her advance of the $1,500 and the subsequent events. Miles testified to these facts at trial and also to the fact that she had received a reduced sentence in exchange for her pleas of guilty and, one would assume, her cooperation.
Marco Macias was determined to be an alien of Columbian origin. He was deported prior to Jandro‘s trial and, for that reason, was not available as a witness. At Jandro‘s trial, statements made by Marco prior to trial were offered and received in evidence.
We address the issues in the order raised by Jandro, a chronological development. Jandro contends that it was error to admit the eleven marked $100 bills found in his shirt pocket because they were the product of a search incidental to an unlawful arrest. He argues that the record does not demonstrate sufficient probable cause to justify his arrest without a warrant and that the recorded $100 bills should not have been part of the evidence against him. We agree with the trial judge who ruled that this evidence was admissible.
There is no question in this case about whether the arresting officer had an arrest warrant or a search warrant at the time the recorded bills were taken from Jandro. He had neither. A warrantless arrest is justified by
“(a) A peace officer may arrest a person without a warrant and detain him until a legal warrant can be obtained when:
* * * * * *
“(ii) He has reasonable grounds to believe that a felony, as defined by section 6-2 [§ 6-1-102] of the statutes has been committed and he has reasonable grounds for believing that the person to be arrested has committed it; * * *”
We note that the wording of the statute, in effect at the time of Jandro‘s arrest, refers to “reasonable grounds” instead of the more commonly used phrase “probable cause.” However, we discern a legislative intent to equate these two phrases, and we accordingly treat them as interchangeable. Roose v. State, 759 P.2d 478 (Wyo.1988); Neilson v. State, 599 P.2d 1326 (Wyo.1979), cert. denied, 444 U.S. 1079, 100 S.Ct. 1031, 62 L.Ed.2d 763 (1980). Jandro‘s arrest was permissible under this statute provided the arresting officer was possessed of sufficient information to constitute probable cause.
This court last visited the concept of search incidental to a lawful arrest in Roose. In that case, we quoted the following language from Neilson:
“‘A peace officer may arrest a person without a warrant if, at the moment the arrest is made, he has probable cause to believe that a crime had been committed by the person to be arrested, or he has reasonable grounds to believe that a crime is being committed in his presence by the person to be arrested. Stated another way, the determination of proba-
ble cause to arrest without a warrant depends upon whether the facts and circumstances within the peace officer‘s knowledge and of which he has reasonably trustworthy information were sufficient to warrant a reasonably cautious or prudent man to believe that the person arrested has committed or is committing an offense. The constitutional standard governing probable cause is grounded upon reasonableness. Thus, an appellate court‘s inquiry into whether or not an arrest is legal in a given case is restricted to an objective consideration of the evidence in the record.‘” Roose, 759 P.2d at 481.
The standard articulated in Neilson is consistent with that adopted by the Supreme Court of the United States in Gerstein v. Pugh, 420 U.S. 103, 111, 95 S.Ct. 854, 861, 43 L.Ed.2d 54 (1975), in which the court said that probable cause consists of “facts and circumstances ‘sufficient to warrant a prudent man in believing that the [suspect] had committed or was committing an offense.‘”
This court also has defined probable cause as “‘the facts and circumstances within the peace officer‘s knowledge and of which he had reasonably trustworthy information * * * sufficient to warrant a reasonably cautious or prudent man to believe that the person arrested has committed * * * an offense (emphasis added).‘” Ostrowski v. State, 665 P.2d 471, 476 (Wyo.1983); Neilson. See Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879, reh. denied, 338 U.S. 839, 70 S.Ct. 31, 94 L.Ed. 513 (1949). It is recognized that the standard is an objective one which is not subject to police discretion, Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964), but, even so, the matter of probable cause “is to be viewed from the vantage point of a prudent, reasonable, cautious police officer on the scene at the time of the arrest guided by his experience and training.” United States v. Davis, 458 F.2d 819, 821 (D.C.Cir.1972). The experience and expertise possessed by the arresting officer is to be taken into account. United States v. Ortiz, 422 U.S. 891, 95 S.Ct. 2585, 45 L.Ed.2d 623 (1975); Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948).
The facts and circumstances which justify a determination that probable cause was present must amount to more than mere suspicion, but they need not rise to the level of proof of guilt, nor even to the level of prima facie evidence of guilt. Ostrowski; Raigosa v. State, 562 P.2d 1009 (Wyo.1977); Brinegar. The determination of whether the standard was met must be made upon an evaluation of the record. Ostrowski; Neilson. In applying the standard, we evaluate the record, with a practical view using good sense. Vrooman v. State, 642 P.2d 782 (Wyo.1982).
We also recognize that it is not necessary that the arresting officer personally have all of the information about all of the elements which constitute probable cause. He is entitled to rely on the collective knowledge of the other investigating officers. Williams v. State, 557 P.2d 135 (Wyo.1976). In this regard, the court adopts the doctrine expressed in United States v. Stratton, 453 F.2d 36, 37 (8th Cir.1972), cert. denied, 405 U.S. 1069, 92 S.Ct. 1515, 31 L.Ed.2d 800 (1972), in which the court held:
“We think the knowledge of one officer is the knowledge of all and that in the operation of an investigative or police agency the collective knowledge and the available objective facts are the criteria to be used in assessing probable cause. The arresting officer himself need not possess all of the available information.”
In applying this doctrine, the arresting officer should consider and weigh the totality of the circumstances when making a decision as to probable cause. He need not proceed on the basis of only isolated facts or circumstances.
In Jandro‘s case, the record demonstrates that the arresting officer had credible and reliable knowledge of the following facts and circumstances. He was aware that Marco Macias was a methamphetamine supplier from the west coast; that he was reported to have been coming out to Wyoming with a fresh supply of controlled
Considering the totality of these circumstances, sufficient probable cause was present to justify Jandro‘s arrest. Given the facts and circumstances available to the arresting officer, any reasonably prudent police officer, especially one with this officer‘s experience and expertise, would conclude that it was probable that Jandro was involved in a conspiracy to deliver controlled substances. We hold that Jandro‘s arrest was lawful under the statute and that the search was incidental to the arrest. Such a search is lawful and, indeed, recommended for assuring the safety of the arresting officers and others in the vicinity. It was appropriate to search for, and seize, evidence on Jandro‘s person in order to prevent its concealment or destruction. Nothing indicates that this search was not routinely accomplished as incidental to the lawful arrest. United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974); United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Roose.
We then turn to Jandro‘s contention that the failure of the law enforcement officers to obtain a written or recorded waiver of his constitutional rights must be applied to void his conviction. In this regard, the state concedes that
“A person who has been appropriately informed under W.S. 7-9.21 [§ 7-1-111] may waive in writing, or by other record, any right provided by this act if the court concerned, at the time of or after waiver, finds of record that he has acted with full awareness of his rights and of the consequences of a waiver and if the waiver is otherwise made according to law. The court shall consider such factors as the person‘s age, education, familiarity with the English language and the complexity of the crime involved.”
This waiver provision now is found in
Jandro also points to
“(a) If a person who is being detained by a law enforcement officer * * * is not represented by an attorney under conditions in which a person having his own counsel would be entitled to be so represented, the law enforcement officers concerned, upon commencement of detention * * * shall clearly inform him of the right of a needy person to be represented by an attorney at public expense, and if the person detained or charged does not have an attorney, notify the * * * trial court concerned * * * that he is not so represented [emphasis added].
* * * * * *
“(e) Information given to a person under this section is effective only if:
“(i) It is in writing or otherwise recorded; “(ii) He records his acknowledgment of receipt and time of receipt, or, if he refuses to make this acknowledgment, the person giving the information records that he gave the information and that the person informed refused so to acknowledge it; and
“(iii) The material so recorded under paragraphs (i) and (ii) of this subsection is filed with the court next concerned.”
It is clear these statutory provisions were not followed. It also is clear that the material circumstances did not encompass any requirement that they be followed.
Jandro asserts that the failure to comply with the statute makes the statements that he gave to law enforcement officers inadmissible. It is clear from the record that there was no violation of the rights preserved to Jandro under the Fifth Amendment to the Constitution of the United States as articulated in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). This court has subscribed to the doctrine of Miranda not only under the Fifth Amendment but under Article 1, § 11 of the Constitution of the State of Wyoming. E.g., Dryden v. State, 535 P.2d 483 (Wyo.1975). We perceive Jandro‘s argument, however, as an unwarranted effort to expand upon the legislative intent represented by the statutory enactments upon which he relies. Those statutes are a part of the Public Defender Act and, read in pari materia with other provisions, it is clear that the legislative effort was designed to secure for those needy persons defined in the statute the constitutional right to be represented by counsel as provided by the Sixth Amendment to the United States Constitution and by Article 1, § 10 of the Constitution of the State of Wyoming.
This court has held consistently that the right to counsel attaches only upon the commencement of adversary criminal proceedings. Best v. State, 736 P.2d 739 (Wyo.1987); Charpentier v. State, 736 P.2d 724 (Wyo.1987); State v. Heiner, 683 P.2d 629 (Wyo.1984); Brown v. State, 661 P.2d 1024 (Wyo.1983). In this instance, the adversary criminal proceedings had not commenced at the time of Jandro‘s interrogation by the law enforcement officers. We call particular attention to the language in
Furthermore, we can discern no impact upon Jandro‘s right to a fair trial resulting from the failure to comply with the statutes. Jandro must assume the burden of demonstrating the possibility that the verdict of the jury might have been more favorable to him in the absence of even a technical error. Trujillo v. State, 750 P.2d 1334 (Wyo.1988); Jones v. State, 735 P.2d 699 (Wyo.1987). The responses that Jandro made at the times he was interrogated were not incriminatory. They were evasive and contrary to fact. In the context of the trial, the jury might well have believed that he was lying to the law enforcement officers at the time he made the statements. Nevertheless, in the light of all the other evidence in this case, we can perceive no reasonable possibility that the jury might have decided to find Jandro guilty because he had lied to the law enforcement officers. Obviously, the jury responded to the testimony of the other witnesses which clearly provided direct and circumstantial evidence of Jandro‘s guilt.
The last question to be resolved is Jan-dro‘s claim of error relating to the admis-
Essentially, Jandro‘s claim is that, without the requisite foundation, the statements of co-conspirators are simply statements made by an out of court declarant which are hearsay and inadmissible at trial.
“(d) Statements which are not hearsay. — A statement is not hearsay if:
* * * * * *
“(2) Admission by Party-Opponent. — The statement is offered against a party and is
* * * * * *
“(E) a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.”
If the statements which were admitted fit under this rule, they are not hearsay, and any objection to their admission into evidence based upon
This rule, now so recurrent in criminal prosecutions, had its origin, and finds its justification, in the laws of agency. Indeed, the statements of co-conspirators often were referred to as vicarious admissions. Bigelow v. State, 768 P.2d 558 (Wyo.1989). In Hitchman Coal & Coke Company v. Mitchell, 245 U.S. 229, 249, 38 S.Ct. 65, 72, 62 L.Ed. 260 (1917), the court explained:
“* * * The rule of evidence is commonly applied in criminal cases, but is of general operation; indeed, it originated in the law of partnership. It depends upon the principle that when any number of persons associate themselves together in the prosecution of a common plan or enterprise, lawful or unlawful, from the very act of association there arises a kind of partnership, each member being constituted the agent of all, so that the act or declaration of one, in furtherance of the common object, is the act of all, and is admissible as primary and original evidence against them.”
Three elements must be demonstrated before a statement can be admitted as non hearsay under
We conclude that adequate foundation evidence is present in this record. Jandro does not question the sufficiency of the evidence as to the existence of the conspiracy. His dispute is with the sufficiency of the proof of his membership. Miles testified that Jandro was in the room where, and at a time when, the drug transactions took place. That was consistent with the observations of the surveillance team. The record also shows that Jandro met Miles in the field in Douglas and conducted her to the motel room where he was staying with Marco. Jandro was present during her discussion with Marco. He had possession of the marked bills originally given to Downing to purchase methamphetamine. Conceding that the thrust of this evidence is circumstantial only, it is sufficient to sustain an inference of Jandro‘s membership in the conspiracy for the purpose of introducing the statements of co-conspirators. Jasch. It may be true that those facts would not alone suffice to convict Jandro of conspiracy to deliver a controlled substance, because conviction requires proof beyond a reasonable doubt, but we are satisfied that there was sufficient evidence to permit the trial court, in the exercise of its discretion, to infer the existence of a conspiracy and appellant‘s membership in it for purposes of making its ruling. See Bourjaily. The additional proof of Jandro‘s guilt then is found in the statements of the co-conspirators.
We recognize that a preferred order of proof may well exist. It is far easier to analyze contentions such as Jandro‘s when the existence of a conspiracy and membership in it is established before any statements of co-conspirators are offered. Nevertheless, we consistently have held that the order of proof relative to the introduction of the statements is not significant if the record does contain facts from which the conspiracy, and the defendant‘s membership in it, appropriately may be inferred.
As we have indicated, our rule requires proof of the first two elements independent of the co-conspirators’ statements. See Bourjaily; Jasch. We do not permit “bootstrapping.” See United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974); see also Glasser v. United States, 315 U.S. 60, 62, 62 S.Ct. 457, 86 L.Ed. 680 (1942). Under our rule, the statements of the co-conspirators cannot be considered in determining whether the conspiracy existed or the defendant was a member. Jasch, 563 P.2d at 1334; see Annotation, Necessity and Sufficiency of Independent Evidence of Conspiracy to Allow Admission of Extrajudicial Statements of Coconspirators, 46 A.L.R.3d 1148 (1972). In this instance, that limitation was not transgressed.
Jandro argues vigorously that Wyoming should embrace the preponderance of the evidence standard articulated in Bourjaily in resolving the question of admissibility of
With respect to Jandro‘s claim that he was denied his right, under the Sixth Amendment to the United States Constitution and Article 1, § 10 of the Constitution of the State of Wyoming, to confront witnesses against him, we adopt the rule articulated by the Supreme Court of the United States. While hearsay rules are designed to protect the constitutional guarantee. California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970); Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970), the out-of-court statements of a co-conspirator are not hearsay. The United States Supreme Court rejected the challenge Jandro presents in Delaney v. United States, 263 U.S. 586, 44 S.Ct. 206, 68 L.Ed. 462 (1924), holding that there can be no challenge under the confrontation clause to the admission of a co-conspirator‘s out-of-court statement. Such statements clearly fall “outside the compass of the general hearsay exclusion.” Bourjaily, 483 U.S. at 183, 107 S.Ct. at 2783. Furthermore, the court in Dutton ruled that evidentiary issues relating to the statements of a co-conspirator are more properly addressed under due process claims pursuant to the Fifth and Fourteenth Amendments than under the confrontation clause of the Sixth Amendment. We hold that the constitutional right to confrontation was not unlawfully denied or abridged.
The judgment and sentence is affirmed.
URBIGKIT, Justice, dissenting.
I dissent for two reasons. First, this majority removes from the Wyoming Confrontation Clause1 our right to cross-examine an accuser2 and does so without examining the Reserved Rights Clause.3 This majority adopts for Wyoming the meaning assigned to the federal Confrontation Clause by Bourjaily v. United States4 in order to remove a previous state constitutional right to cross-examine our accusers.5
Luis A. Jandro is not the only person in Wyoming who lost the right to cross-examine his accusers when his conviction was affirmed. All of us have lost that right today. We are capable of better jurisprudence.8 I dissent.
The chief controversy with which I am concerned questions the constitutionality of reducing the bulwark of an enumerated state right9 without examining the relation between that reduction and the Reserved Rights Clause. I would argue here the Reserved Rights Clause shifts the burden of proof to the government to establish the new enumeration of the Wyoming Confrontation Clause, accomplished by reassigning to it a new and smaller scope, does not deny, impair, or disparage any right reserved to the people of Wyoming. The mistake made by the majority is in assuming that if the right to cross-examine an accuser in open court is located in our Confrontation Clause, then that right is extinguished when it is removed from the Confrontation Clause by adopting for Wyoming the federal Confrontation Clause which openly extinguishes that right under Bourjaily, 483 U.S. 171, 107 S.Ct. 2775. That assumption is false unless the propositions of law (rights) involved do not exhaust the logical space (amendments) they occupy.10 Since there are other possibilities, I would argue the right to cross-examine an accuser in open court can also be located in the Reserved Rights Clause of the Wyoming Constitution.11
In this case, the majority adopts for Wyoming the new meaning assigned to the federal Confrontation Clause and supposes in the process to have annihilated the right to cross-examine an accuser by deleting it from the state‘s constitutional Confrontation Clause. This is done under the assumption that no right to confrontation can be located simultaneously within other open-textured provisions such as Due Process, Equal Protection, or Reserved Rights Clauses. The result in this case affirms Jandro‘s conviction for conspiracy to deliver methamphetamine in violation of
This court has jurisprudential responsibilities to the people of Wyoming which foreclose “selecting Supreme Court precedent on an ad hoc basis with the negative result-oriented appearance that accompanies such an approach.” Keiter, An Essay on Wyoming Constitutional Interpretation, XXI Land & Water L.Rev. 527, 549 (1986). We should develop and incorporate “a principled basis for evaluating and incorporating Supreme Court precedent into state constitutional jurisprudence” if we feel incapable of developing our own interpretive model for understanding the Wyoming Constitution. Id. at 549.
First, this court adopts the basic liberty-right denial thesis and then goes on to reject the Bourjaily14 preponderance of the evidence standard for admitting alleged conspiracy statements against the federally accused under
The Bourjaily preponderance requirement established at least some definable decisions by the trial court for admission of any statement allegedly made to further the course of a conspiracy between the accused and an alleged co-conspirator before that statement becomes part of the evidentiary menu served up to the jury.18 The Bourjaily court rested that standard on concerns voiced when Congress “enacted the Federal Rules of Evidence in 1975.”19 While that standard does not bind the Wyoming courts, we should not forget entirely the admission of a conspiracy statement alleged by the prosecutor does not allow an “accused to confront the witness”20 if the accuser cannot be cross-examined. The fundamental right to confront and cross-examine the witness should be beyond question.21
The common argument advanced to circumvent the right to confront an accuser during a charge of conspiracy becomes a legal fiction busy chasing its own tail. Because Confrontation Clause concerns once forbade the general use of hearsay by a prosecutor against an accused,22 we declared not to be hearsay23 the alleged conspiracy statement when the declarant is unavailable. If we did not declare the alleged conspiracy statement is not hearsay, that statement could be mistaken for hearsay because it meets the definition of hearsay.24 But since we declared it not hearsay, the Confrontation Clause need not be consulted.25
Having rejected the only Bourjaily safeguard for the accused citizen, the majority then imports wholesale the current construction and interpretation assigned the Confrontation Clause by the United States Supreme Court26 and requires that meaning be understood as intended27 by the Wyoming Confrontation Clause. That requirement does not bridge the questions which surround it and requires a leap of faith I will not attempt across the abyss which now separates the old interpretation assigned our state Confrontation Clause from our newly adopted Bourjaily interpretation.28
Perhaps we could put away quietly our sword of advocacy for the prosecution33 and devote fidelity to the Wyoming Constitution which, of course, includes the Reserved Rights Clause.34 While such an “inclusive”35 provision can “never be complete,”36 perhaps we can make of Wyoming law the best it can be by including in our state‘s jurisprudence all provisions of the Wyoming constitution and by continuing the reasonable process and providing substantive protection.37
I would hold the Wyoming Confrontation Clause continues to contain the right to cross-examine the accuser and that this court is directed by our state constitution to consult the Reserved Rights Clause before we decrease the legal landscape which surrounds Wyoming‘s Confrontation Clause. Also to be noted are that inferences, as a sufficiency level for decision making, come clothed with all kinds of factual characteristics. We should beware of an
I regretfully and respectfully dissent in observing this accusatorial process where constitutional rights are denied to the charged defendant, but more expressively from this creation of a standard for future cases where the difference between guilt and innocence may be less distinctly drawn.
RICHARD V. THOMAS
JUSTICE
Notes
Section 35-7-1031, W.S.1977 (June 1988 Repl.), provides, in pertinent part, as follows:
“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:
* * * * * *
“(ii) Any other controlled substance classified in Schedule I, II or III, is guilty of a crime and upon conviction may be imprisoned for not more than ten (10) years, fined not more than ten thousand dollars ($10,000), or both;
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Section 35-7-1042, W.S.1977, 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.”
Right of accused to defend.
In all criminal prosecutions the accused shall have the right to defend in person and by counsel, to demand the nature and cause of the accusation, to have a copy thereof, to be confronted with the witnesses against him, * * *
Rights not enumerated reserved to people.
The enumeration in this constitution, of certain rights shall not be construed to deny, impair, or disparage others retained by the people.
The majority states “[t]he proper exercise of discretion is demonstrated if the record encompasses sufficient evidence to permit the trial court to infer the existence of a conspiracy and the identity of its members.” (Emphasis added.) Sometimes we label this “prima facie evidence.” In Dorador v. State, 711 P.2d 417, 418-19 (Wyo.1985), we explained “prima facia in this context” can only be defined in terms which permit a reasonable inference that a conspiracy existed.
But the “inference” characterization restated by the majority advances no claim for quality of proof and thus does no work. An inference is a thought process for determination and not a standard of evidence for decision. The reasonableness of the inference addresses the logic of the decision and the stability of establishment of the underlying facts. “Inferences are deductions or conclusions which with reason and common sense lead the jury to draw from facts which have been established by the evidence in the case.” Black‘s Law Dictionary 700 (5th ed. 1979). As this court in Matter of Estate of Roosa, 753 P.2d 1028, 1034 (Wyo.1988) quoted:
“‘Guess-work cannot be substituted for evidence or inference, for “an inference is the conclusion drawn on reason from premises established by proof. In a sense it is the thing proved. Guess-work is not.“’ Whitehouse v. Bolster, 95 Me. 458, 50 A. 240 [1901].” Wright v. Conway, 34 Wyo. 1, 241 P. 369, reh. denied, 34 Wyo. 42, 51, 242 P. 1107, 1110 (1926).
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“An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the action.”
Of course, the trial court must determine a conspiracy may have existed. The question begged by the majority and asked by Jandro is what is an acceptable “quantum of proof on which such determinations must be based,” Bourjaily, 483 U.S. at 173, 107 S.Ct. at 2778, 97 L.Ed.2d at 151, in order to build a reasonably valid inference?
The validity of inference decision making is controlled by the adequacy and accuracy of the underlying facts, Kobielusz v. Wilson, 701 P.2d 559 (Wyo.1985), and the logical relationship of those facts to the derived conclusion. For example, it is cloudy — ergo, it may rain; it is cloudy — it will rain; it is cloudy — it did rain. The second is an invalid inference and the last is no inference at all since it only constitutes a statement of historical fact. The prohibition against an inference built upon an inference, 1A Wigmore, Evidence § 41 (Tillers rev. 1983), recognizes as invalid an escalation of stacked possibilities to reach a less likely probability. Matter of Estate of Roosa, 753 P.2d 1028.
While a literal interpretation of the Confrontation Clause could bar the use of any out-of-court statements when the declarant is unavailable, this Court has rejected that view as “unintended and too extreme.” * * * Rather, we have attempted to harmonize the goal of the Clause — placing limits on the kind of evidence that may be received against a defendant — with a societal interest in accurate fact-finding, which may require consideration of out-of-court statements. To accommodate these competing interests, the Court has, as a general matter only, required the prosecution to demonstrate both the unavailability of the declarant and the “indicia of reliability” surrounding the out-of-court declaration. * * * Last Term * * *, we held that the first of these two generalized inquiries, unavailability, was not required when the hearsay statement is the out-of-court declaration of a coconspirator. Today, we conclude that the second inquiry, independent indicia of reliability, is also not mandated by the Constitution.
Bourjaily, 483 U.S. at 182, 107 S.Ct. at 2783, 97 L.Ed.2d at 157 (emphasis added). See Seidelson, The Confrontation Clause and the Supreme Court: Some Good News and Some Bad News, 17 Hofstra L.Rev. 51 (1988). See also Note, Barker v. Morris and the Right? to Confrontation, 14 Hastings Const. L.Q. 839 (1987).
Under what jurisdiction does the Rehnquist court privately amend the “goal of the Clause?” This is what the majority transforms into future Wyoming law? For historical perspective, see Goldman, Not So “Firmly Rooted“: Exceptions to the Confrontation Clause, 66 N.C.L.Rev. 1 (1987).