Garner v. State

264 P.3d 811

2011 WY 156

Mark J. GARNER, Appellant (Defendant),

v.The STATE of Wyoming, Appellee (Plaintiff).

No. S–11–0119.

Supreme Court of Wyoming.

Nov. 16, 2011.

Representing Appellant: Diane M. Lozano, State Public Defender; Tina N. Olson, Appellate Counsel.Representing Appellee: Gregory A. Phillips, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Jenny Lynn Craig, Senior Assistant Attorney General.Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.BURKE, Justice.

[¶ 1] Appellant, Mark J. Garner, challenges his convictions on two counts of delivery of a controlled substance, in violation of Wyo. Stat. Ann. § 35–7–1031(a)(i).¹ He contends the district court improperly limited cross-examination of a key prosecution witness, and that the evidence was insufficient to support his convictions. We affirm.

ISSUES

[¶ 2] Appellant presents the following issues:

1. Did the trial court err in admonishing defense counsel, limiting his cross-examination and issuing a limiting instruction to the jury, when in fact defense counsel was properly testing the credibility of the confidential informant, HB?

2. Was there insufficient evidence to sustain the convictions of Appellant?

FACTS

[¶ 3] In July of 2010, Appellant was arrested for selling methamphetamine to a confidential informant in two “controlled buy” operations initiated by the Wyoming Division of Criminal Investigation (DCI).² The arrest resulted in large part from information obtained by a confidential informant, HB. HB purchased methamphetamine from Appellant on two occasions in June of 2009. In the first instance, DCI agents fitted HB with a wireless transmitter, provided her with $60 in controlled buy funds, and kept her under constant surveillance as she proceeded to purchase methamphetamine from Appellant at the home of Appellant's girlfriend, Rachelle Earley. In the second instance, DCI agents again fitted HB with a wireless transmitter, provided her with $200 in controlled buy funds, and kept her under surveillance as she purchased methamphetamine from Appellant at a truck stop. In return for HB's service as a confidential informant, the State agreed to recommend a deferred prosecution under Wyo. Stat. Ann. § 7–13–301 in relation to criminal charges against HB stemming from an alleged delivery of marijuana.

[¶ 4] Appellant was charged with two counts of delivery of methamphetamine and one count of conspiracy to deliver methamphetamine. Ms. Earley was also charged with conspiracy and as an accessory to delivery of methamphetamine. The two cases were consolidated for trial.

[¶ 5] At trial, just before opening statements, the court held a hearing outside the presence of the jury.³ During this hearing, defense counsel indicated his intent to cross-examine HB about her plea agreement under Wyo. Stat. Ann. § 7–13–301. Counsel stated that “What I would want to talk about is the original charges [sic] that she was facing, the timing of those charges related to when she entered into a plea agreement[,] and when she cooperated here with D.C.I.” The court summarized the argument by asking counsel, “So, essentially, what you're saying is what she's doing here is part of a deal she got to get a 7–13–301?” Counsel responded “That is correct, your Honor.” The court determined that defense counsel could inquire into HB's agreement with the State because it demonstrated potential bias.

[¶ 6] During cross-examination of HB, defense counsel inquired about HB's arrest for delivery of marijuana and the resulting criminal charges. When counsel asked about the circumstances surrounding the alleged delivery, the prosecutor objected, and the following exchange occurred:

THE COURT: That's sustained. I don't understand what that is. She's admitted she has done that, so we're over.

DEFENSE COUNSEL: I had one more question. I was just trying to make sure the foundation was there, but I would stop there if you would like me to.

THE COURT: Well, I guess I don't see it, but if you want to make a proffer, I'll let you do it. This is beyond what we've talked about before. But if you've got a point that I don't get or is important, in fairness, I'll let you get—you know, have some means of getting to it. If you've got just one more question, I'll let you do that.

DEFENSE COUNSEL: I appreciate that, your Honor.

Q: [HB], is it true that you had your 16–year–old son helping you sell marijuana?

A: That is true.

THE COURT: The objection is sustained. Go ahead, though.

DEFENSE COUNSEL: Thank you, your Honor.

Q: At that point—

PROSECUTION: Your Honor, may we approach the bench?

THE COURT: Yes.

DEFENSE COUNSEL: I'm done, your Honor.

The following discussion was then held at the bench:

PROSECUTION: Your Honor, in relation to the prior testimony, today we had a discussion as to what we were going to talk about as far as character evidence and other issues. I believe that there was no mention or discussion of any type that [HB] had incorporated her 16–year–old child to sell marijuana. We would have objected to that. The cat's out of the bag, but at this point, if there's going to be any further questioning that relates to painting her and her character, then I would certainly like notice of that.

...

DEFENSE COUNSEL: When I mentioned earlier that I wanted to talk about the specifics surrounding her situation, I wanted to do that because I wanted to explain the fact that the deal that she got is exceptional relative to the things that were going on there; specifically, that she was using her 16–year–old son to sell drugs and the ultimate result is that she gets a dismissal of those charges. That is part and parcel of the circumstances surrounding it and why it becomes such a less understandable deal.

THE COURT: Well, you just stop here because there are certain things[,] such as you're talking about a 16–year–old son[,] that I have to take into account because they may be so bad that, even though they may have occurred, the prejudicial effect outweighs the possibility that they are an unreliable witness. That's really what we're here about with this other bad acts evidence.

Now, here we are. What you've said, essentially, is you knew that; and we've come in here, mid trial, with no 404(b) proffer so I can take it up. I thought you were just asking a foundational question when you said “One more question,” but you basically wanted to get out the prejudicial matter and that's the problem that we have here.

Now, I am ruling that is improper. I will instruct the Jury—the only thing I can do right now, if you want a limiting instruction that they will disregard it—

The prosecution subsequently requested that the court issue a curative instruction.

[¶ 7] The court provided a proposed curative instruction to the parties outside the presence of the jury and asked if there were any objections. Appellant's counsel stated that he had no objections, but requested that a reference to “the Defendant” be changed to “Mr. Garner's attorney” to reflect that Appellant's attorney, rather than Appellant, had failed to disclose the planned inquiry regarding HB's son. The court made the change before issuing the following instruction to the jury:

Ladies and Gentlemen of the Jury, testimony has just been elicited in cross-examination of [HB] to the effect that this witness used her 16–year–old son to sell marijuana. Generally, other bad acts that may have been committed by a witness are not admissible; and when they are admitted, they are subject to careful scrutiny and review by the Court because of the prejudicial effect they may have in the minds of the jury, such as to punish the witness because she's a bad person and because this information simply has no relevance to the case.

In order to make sure that such evidence is used properly, it must be disclosed to the opposing Counsel and to the Court that it is planned to be used. Here, it was disclosed that the Defendants planned to inquire into the fact that [HB] received a withheld entry of conviction or a deferred prosecution under Wyoming Statute 7–13–301 in exchange for her trying to purchase drugs from the Defendant. The Defendant was allowed to examine on this point. What was not disclosed by Mr. Garner's attorney was that the witness may have allowed her 16–year–old son to sell drugs. It is extremely improper to do this. Accordingly, you are instructed that you are to disregard the testimony regarding the witness' 16–year–old son and you may not consider or use it for any purpose, including whether or not to believe this witness.

[¶ 8] At the close of the State's case, Appellant moved for judgment of acquittal on all of the charges. The district court granted the motion with respect to the conspiracy charge but denied the motion with respect to the two delivery charges. The jury subsequently found Appellant guilty on both counts. The court imposed consecutive sentences of 8 to 18 years for the convictions. This appeal followed.

STANDARD OF REVIEW

[¶ 9] We review a district court's evidentiary rulings for an abuse of discretion.

Generally, decisions regarding the admissibility of evidence are entrusted to the sound discretion of the district court. We afford considerable deference to the district court's decision and, as long as a legitimate basis exists for the district court's ruling, it will not be reversed on appeal. Under the abuse of discretion standard, our primary consideration is the reasonableness of the district court's decision. The burden of establishing an abuse of discretion rests with the appellant.

If we find that the district court erred in admitting the evidence, we must then determine whether or not the error affected [the appellant's] substantial rights, providing grounds for reversal, or whether the error was harmless. The error is harmful if there is a reasonable possibility that the verdict might have been more favorable to [the appellant] if the...