Thomas v. State

67 P.3d 1199

2003 WY 53

Darin Dewayne THOMAS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 02-95.

Supreme Court of Wyoming.

April 30, 2003.

Representing Appellant: Kenneth Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; Ryan R. Roden, Senior Assistant Appellate Counsel; Diane E. Courselle, Faculty Director, Defender Aid Program; Jason M. Tangeman, Interim Program Director; Lindsay Hoyt, Student Director; and Allison F. Johnston and Anna M. Reeves, Student Interns. Argument by Ms. Reeves.

Representing Appellee: Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Kimberly A. Baker, Senior Assistant Attorney General. Argument by Ms. Baker.

Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

LEHMAN, Justice.

[¶ 1] Darin Dewayne Thomas (Thomas) appeals the judgment and sentence imposed upon his conviction of one count of possession with the intent to deliver cocaine, in violation of Wyo. Stat. Ann. §§ 35-7-1031(a)(i) and 35-7-1016(b)(iv) (LexisNexis 2001).¹ Thomas claims, among other things, that the court erred in failing to give a lesser-included offense instruction on possession of a controlled substance. Finding such error, we reverse.

ISSUES

[¶ 2] Thomas presents three issues for our consideration:

I. Whether the trial court committed reversible error when it refused to instruct the jury on the lesser-included offense of felony possession of a controlled substance pursuant to W.S. § 35-7-1031(c)(iii).

II. Whether the trial court committed plain error and denied Mr. Darin Thomas of his constitutional right to a fair trial by failing to exclude evidence contrary to the holding in Bennett v. State, 794 P.2d 879 (Wyo.1990).

III. Whether the trial court denied Mr. Darin Thomas his constitutional right to procedural due process when it conducted W.R.E. 404(b) hearing in his absence, in violation of W.R.Cr.P. 43(a) and W.S. § 7-11-202.

FACTS

[¶ 3] Officers from the Cheyenne Police Department became aware that Thomas had two outstanding warrants based on parole violations. Lieutenant Robert Korber (Korber) knew Thomas and learned where Thomas' girlfriend, Kathy Curtis (Curtis), lived. On January 5, 2001, intending to arrest Thomas pursuant to the outstanding warrants, Korber went to the Curtis residence. When Korber arrived at the residence, he saw the Firebird car he believed Thomas to be using parked in front of the residence.

[¶ 4] Korber and two other police officers approached the residence and encountered Curtis taking down her Christmas decorations. Upon contact with Curtis, the officers explained their reason for being there. Curtis informed the officers that Thomas was not at the residence, but Thomas had borrowed her car and would be back shortly. The other officers left the residence, but Korber waited for Thomas to return. Approximately three hours later, Thomas did return, at which time Korber radioed for backup and proceeded outside to arrest Thomas.

[¶ 5] Korber approached Thomas announcing that Thomas was under arrest and demanding that Thomas get out of the car and place the keys on top of the vehicle. Thomas exited the vehicle and placed the keys on the car but then turned to run. Thomas only made it a short distance before he was stopped. In that short distance, however, Korber witnessed Thomas drop two plastic bags out of his jacket pocket. Thomas was then handcuffed and Korber retrieved the bags.

[¶ 6] The bags Thomas dropped were found to contain marijuana and cocaine. The cocaine was packaged in fifteen separate bindles. When Thomas was patted down, empty plastic bags, smoking papers, and $467 were found. Three other officers arrived on the scene after Thomas had been handcuffed. The officers searched both Curtis' car and the Firebird. They found no drugs or drug paraphernalia in Curtis' car. They found a small set of scales in the Firebird. The officers eventually learned that the Firebird was registered to Thomas' brother, Alvin Thomas.

[¶ 7] Thomas was charged with one count of possession with intent to manufacture or deliver a controlled substance pursuant to Wyo. Stat. Ann. § 35-7-1031(a)(i) and 35-7-1016(b)(iv) (LexisNexis 2001). The total weight of the cocaine without packaging was 7.71 grams. Thomas' first trial commenced on May 7, 2001, but was declared a mistrial because Thomas was brought before the jury in his prison uniform and shackles. The second trial began on June 4, 2001. The testimony presented included statements about the packaging and quantities used in drug culture. Police officers testified that the quantities possessed by Thomas were typically held by someone who intended to sell. Alvin Thomas and Curtis testified for the defense. Alvin Thomas testified that the Firebird and the scale found therein belonged to him. He further testified that he used the scale for automotive repair and that he had loaned his brother $480 prior to the arrest. Curtis testified that she had never seen Thomas use or sell drugs.

[¶ 8] During the course of the proceedings, both the State and Thomas at some point requested an instruction on the lesser-included offense of felony possession. However, no instruction on the lesser-included offense was ever given. On June 5, 2001, the jury found Thomas guilty of possession with the intent to deliver cocaine. Thomas was sentenced to a period of not less than four nor more than twelve years in the Wyoming State Penitentiary. This appeal followed.

STANDARD OF REVIEW

[¶ 9] "Where proper objection is made on the record, a district court's failure to give a lesser-included offense instruction is subject to a de novo standard of review." Houghton v. State, 6 P.3d 643, 646 (Wyo.2000) (citing Paramo v. State, 896 P.2d 1342, 1344 (Wyo.1995)).

DISCUSSION

[¶ 10] We have recognized that we employ the statutory elements test to determine whether a lesser-included offense instruction should be given. Under this test a lesser-included offense instruction is appropriate if all the elements of the lesser offense are also elements of the greater offense, and some evidence has been presented that would rationally permit a jury to find the accused guilty of the lesser offense and not guilty of the greater offense. Houghton v. State, 6 P.3d at 646 (citing State v. Keffer, 860 P.2d 1118, 1134 and 1136 (Wyo.1993)). We have also said, "[w]here the proposed lesser included offense requires proof of an element not required for the greater offense, no instruction need be given." Chapman v. State, 2001 WY 25, ¶ 29, 18 P.3d 1164, ¶ 29 (Wyo.2001) (citing Keffer at 1134; Jackson v. State, 891 P.2d 70, 74 (Wyo.1995)).

[¶ 11] We recently explained that the statutory elements test is more fully expressed as a five-step analytic process. Mueller v. State, 2001 WY 134, ¶ 9, 36 P.3d 1151, ¶ 9 (Wyo.2001). The five steps are:

1) a proper request for the instruction is made; 2) the elements of the lesser-included offense are identical to part of the elements of the greater offense; 3) there is some evidence that would justify conviction of the lesser-included offense; 4) the proof on the element or elements differentiating the two crimes is sufficiently in dispute that the jury may consistently find the defendant innocent of the greater and guilty of the lesser-included offense; and 5) mutuality exists such that the lesser-included charge can be demanded by either the prosecution or the defense.

Applying this five-step analytical process to this case, we determine that it was error to refuse to give a lesser-included offense instruction on felony possession of a controlled substance.

[¶ 12] First, a proper request for the instruction was made. The record indicates that the appropriateness of a lesser-included offense instruction was discussed at least three times by the trial court and counsel. During the W.R.E. 404(b) hearing, the State requested an instruction on the lesser-included charge of felony possession of a controlled substance at which time a discussion about the appropriateness of such an instruction was held. Immediately prior to the beginning of the first trial, which resulted in a mistrial, the court and counsel again discussed the lesser-included offense instruction. Following the close of evidence at the second trial, the trial court conducted a formal jury instruction conference. At this conference, defense counsel requested lesser-included offense instructions for both misdemeanor possession and felony possession of a controlled substance. The trial court denied the requests.

[¶ 13] The State, citing Pearson v. State, 12 P.3d 686, 688 (Wyo.2000),² claims that the party requesting the lesser-included offense instruction must present an instruction in writing to preserve the argument for appeal. We agree that the language cited by the State does appear in the Pearson case. However, we also recognize that the trial court always has the duty to properly instruct the jury concerning the applicable law. In fact, a trial court may, and sometimes should, give an instruction without a request from either party. Mueller, ¶ 9. "The failure to give a lesser-included offense instruction when such an offense exists and the evidence presented would support conviction of that offense constitutes reversible error." Houghton, at 646 (citing Paramo, 896 P.2d at 1344).

[¶ 14] Furthermore, when looking at the full text surrounding the language from Keffer quoted in the Pearson case we see

an objection must be imposed "to give the trial court an opportunity to correct possible error in instructions before the jury retires." Muniz v. State, 783 P.2d [141] at 14[2] [ (Wyo.1989) ]; Morris v. State, 644 P.2d 170 (Wyo.1982). In the absence of an objection to preserve the error, review will be limited to the noticing of any plain error. Derksen [v. State ], 845 P.2d 1383 [(Wyo.1993) ]; Craney [ v. State ], 798 P.2d 1202 [ (Wyo.1990)

...