Bennett v. State

794 P.2d 879, 1990 Wyo. LEXIS 77, 1990 WL 91598

• Court: Wyoming Supreme Court
• Decided: July 6, 1990
• Docket: 88-236
• Status: Published

Opinions

GOLDEN, Justice.

Danny Bennett was convicted after a jury trial of two counts of delivering cocaine in violation of W.S. 35-7-1031(a)(ii) and W.S. 35-7-1016(b)(iv) (Cum.Supp.1987), and one count of conspiring to deliver cocaine in violation of W.S. 35-7-1042 (1977). He was sentenced to concurrent terms of four to seven years on each of the delivery counts, and of two to four years on the conspiracy count. Bennett presents seven issues in his appeal:

I.Whether it was plain error to allow the introduction of evidence that two of the state’s witnesses had plead guilty to offenses growing out of the same circumstances as the crimes with which Appellant was charged.

II. Whether the admission of testimony stating that the Appellant was guilty of the crimes charged was error per se and plain error and denied Appellant of his right to a trial by jury.

III. Whether the search of the overnight bag found in the trunk of the Mercedes was violative of the Appellant’s rights under the Fourth Amendment of the United States Constitution and Article 1 § 4 of the Wyoming Constitution and therefore the admission of evidence seized was error.

IV. Whether the trial court erred in denying Appellant the opportunity to cross-examine a witness concerning possible bias.

V. Whether the introduction of the post arrest statement of co-defendant Jenkins denied the Appellant of his right to confrontation.

VI. Whether it was error to try the Appellant jointly with Defendant Jenkins.

VII. Whether the appellant was denied his right to due process by the introduction of irrelevant, inflamatory [sic] evidence and presentation of arguments which appealed to the fears and prejudices of the jurors.

As we reverse on Bennett’s second issue, the use of opinion testimony as to his guilt, we do not address the remaining issues.

Bennett was arrested and charged on February 15, 1988, following a lengthy police investigation of Bennett and several associates, three of whom were arrested with him. The state’s case was based principally on three controlled buys made by an informant named Randy Hill at the direction of investigating officer Tony Hinton of the Wyoming Division of Criminal Investigation. These buys, were made on August 13 and 14, 1987, December 5, 1987, and January 1, 1988.

Bennett had been under police surveillance since the summer of 1986 because of activity which was regarded as suspicious, including the use of several vehicles to make recurring brief stops at a number of regular locations in Cheyenne. The investigators targeted Bennett as a drug dealer, but believed that since Bennett and his associates were black it was necessary to find a black informant to deal with them. Hill, who is black, was arrested and charged with two counts of delivery of cocaine in late July or early August, 1987, and identified Bennett as his supplier. In a plea bargain with prosecutors, Hill agreed to make controlled buys from Bennett in exchange for a reduction in the charges he faced. His testimony about those buys was central to the state’s case.

The controlled buys were all conducted in a similar fashion. Hill and his vehicle were searched, and he was supplied with cash and a tape recorder or a listening device and sent to make the prearranged buy. Hinton and Cheyenne police officers followed Hill and observed from a distance. After the buys Hill would meet the officers, turn over the cocaine and the recording or listening device, and describe what had transpired. The investigators searched Hill and his vehicle again after the buys. The first controlled buy on August 13-14, 1987, spanned two days because the money was exchanged on the first day, and the cocaine delivered to Hill on the second. The deliveries involved Bennett, his co-defendant Jenkins, Michael Merritt and Curtis Wilkinson, both of whom pleaded guilty before the trial to charges arising from the buys, and others.

Hill’s testimony implicated Bennett in the cocaine deals, although it contradicted his statements to Hinton after the buys in several respects. Hill testified that on August 14, 1987, Bennett called him with instructions for picking up the cocaine; that Hill then met Bennett near Johnson Junior High, and that Bennett told him that Merritt had a package for him; that Bennett arranged with him for the December 5, 1987 transaction over the telephone, and delivered the cocaine to Hill in Bennett’s car as it was parked in front of the Carter Brown American Legion Hall; and that Bennett arranged the January 1, 1988 deal, which took place at Wilkinson’s residence, and took the buy money from Hill while Merritt handed him the cocaine.

In addition to Hill, Hinton and other investigating officers testified as to their coordination of the buys and observations of the transactions. As part of their plea bargains with the prosecutor, both Merritt and Wilkinson testified against Bennett, though both did so grudgingly and were regarded as reluctant or hostile witnessess. The jury found Bennett guilty of conspiring to deliver and delivery for the August transaction, not guilty of the December transaction, and guilty of delivery in the January transaction. It acquitted Bennett’s co-defendant Jenkins of conspiracy regarding, and aiding and abetting of, the January transaction.

Witness’s Opinion as to Guilt of Defendant

Bennett asserts that it was error per se to permit Hinton to state his opinion as to Bennett’s guilt, relying on our holding in Stephens v. State, 774 P.2d 60 (Wyo.1989). In Stephens this court held that testimony elicited by a prosecutor which offers an opinion as to the defendant’s guilt should be treated as error per se rather than as a question of plain error because it is impossible to determine whether the jury may have relied on the expressed opinion in reaching its verdict. Id. at 68. To permit jurors to rely on a witness’s opinion of the defendant’s guilt “would be the ultimate abdication of the function of the jury.” Id. at 64. Unfortunately, because Hinton responded to the prosecutor’s request for his opinion and its factual foundation, what occurred here must be treated as error per se.

Our Stephens holding was based on our conclusion that testimony offering an opinion as to the accused’s guilt is not admissible under W.R.E. 702 and 704. While we agreed that Rule 704 permits evidence upon ultimate issues, we held that “[t]he particular inquiry must focus on whether the * * * testimony serves to assist the jury in resolving the factual issues before it.” Opinion testimony about guilt does not address areas that assist the jury in resolving factual issues. Id. at 67.

While the opinion testimony in this case may appear to have different significance from that offered in Stephens, it was presented in functionally the same way, and the concerns about its effect are the same, namely, that “the testimony could have decided the case for the jury.” Id. In Stephens three expert witnesses were asked, based on their training and experience, their opinion whether or not a child had been sexually molested, and if so, by whom. All answered the first question affirmatively, and all three identified the defendant as the molester. These witnesses were then asked what their opinions were based on. This court found that the direct responses of opinion by the witnesses, as well as what we termed substantive statements of opinion in the form of testimony as to bases for the direct opinions, were impermissible.

In this case, Hinton testified as the investigating officer rather than as an expert. This does not affect our result because we recognized in Stephens that opinion testimony as to a defendant’s guilt is impermissible whether from a lay or expert witness. Id. On redirect examination Hinton was asked,

Q. Mr. Frentheway [Bennett’s attorney] asked you if, in your opinion, Mr. Bennett was a drug dealer and you said yes.

A. Yes.

Q. I’ll ask you the next question. Why?

This was followed by an objection and a discussion between the court and the attorneys, resulting in an instruction to Hinton by the court that he limit his answer to the facts introduced to that point in the trial. Hinton acknowledged this limitation, but then, as his factual basis for the opinion just expressed, testified that the investigating officers bought cocaine from Bennett through informant Hill on the three occasions charged:

A. August 13th and 14th, I was involved in one-eighth ounce cocaine buy between Randy Hill and Danny Bennett where we received one-eighth ounce of cocaine from Danny Bennett. December 4th and 5th, 1987, I was involved in another cocaine buy where we bought one-quarter ounce of cocaine from Danny Bennett through Randy Hill. We’ve also done surveillance, we’ve also talked to other informants and we have also talked to other witnesses in these proceedings.

The result is essentially both a direct statement of Hinton’s opinion that Bennett is guilty, since Hinton testified that Bennett was, in his opinion, a drug dealer based on the evidence before the jury, and a substantive statement in the unequivocal recitation that Bennett was the source of the cocaine on the charged dates. This went well beyond simply summarizing the facts of his investigation by drawing the ultimate conclusion that Bennett was guilty. It was the jury’s role, not the witness’s, to make this determination.

Stephens also involved little physical evidence, so that the opinion testimony as to guilt and credibility assumed paramount significance, whereas this case does involve more physical evidence and witness testimony. Regardless of this distinction, the concern of improper invasion of the jury’s function remains critical and any invasion of the jury's role must be treated as error per se. We are unable to determine the prejudicial effect of Hinton’s statement. His opinion, elicited by the prosecutor, taints the trial because of “the impossibility of assessing whether the jury relied upon it in reaching its verdict.” Id. at 68. In Stephens the use of witness testimony as to the defendant’s guilt was analogized as “frosting on the cake.” As it was aptly put, “if the frosting is bad, the morsel may not stay down even though the cake was sufficient to the need.” Id. at 64. Here again, the frosting in the form of witness opinion is bad, and the substance of the cake in the form of other evidence must be disregarded.

Finally, the interrelationship of Hinton’s statements that it was his opinion that Bennett was a drug dealer and that this was because Bennett was the source of cocaine purchased during the controlled buys, is telling. In response to the prosecutor’s questioning Hinton told the jury that in his opinion Bennett was a drug dealer because Bennett committed the three charged drug transactions. It is difficult to see how jurors could have believed this was anything but an opinion concerning the defendant’s guilt. The danger of this testimony compromising the jury function is simply too great to ignore.

Although the prosecutor suggested in his question that Bennett’s attorney had already asked Hinton his opinion on this issue, we do not find that to be the case. The question asked by Bennett’s attorney, in the context of whether or not the special agent’s biases affected his interpretation of Bennett’s activities, was whether he suspected Bennett of being a drug dealer when he began surveillance. The object and result of this question were distinctly different from those of the prosecutor’s questioning, which solicited Hinton’s opinion as to whether Bennett was a drug dealer and the facts from his investigation that were the basis for his opinion. Consequently, in light of the concerns which are well presented in Stephens, we are compelled to reverse as to this issue.

Because we decide this appeal by reversing on Bennett’s claim of improper opinion testimony, we need not, and do not, address the remaining claims of error. We do note that the trial court was mistaken when it gave the power to waive attorney-client privilege to prosecution witness Sam Brown’s attorney rather than Brown himself. While we do not necessarily suggest that the resulting limit on Brown’s testimony was a denial of the sixth amendment right of confrontation, we agree that cross-examination into motives or incentives the witness may have for giving false testimony should be given the broadest possible scope. United States v. Hall, 653 F.2d 1002, 1008 (5th Cir.1981). In this light we emphasize that the decision whether to waive attorney-client privilege belongs solely to the client.

As was the case in Stephens, the record discloses a strong case against the accused, and it is not without regret that we over-However, the Wyoming Rules of Evidence have been misapplied in a way that constitutes error per se and, as we noted in Stephens, this sort of opinion testimony is potentially an invasion of an accused’s constitutional right to a jury trial. Id. at 67, n. 3. This we cannot permit. turn his conviction.

Reversed and remanded for new trial.

MACY, J., filed a concurring opinion.

THOMAS, J., filed a dissenting opinion in which CARDINE, C.J., joins.