Mitchell v. State

476 P.3d 224

Dallas Clem MITCHELL, Appellant (Defendant),

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

S-20-0086

Supreme Court of Wyoming.

November 23, 2020

Representing Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Kirk A. Morgan, Chief Appellate Counsel; Robin S. Cooper, Senior Assistant Appellate Counsel. Argument by Ms. Cooper.

Representing Appellee: Bridget L. Hill, Attorney General; Jenny L. Craig, Deputy Attorney General; Joshua C. Eames, Senior Assistant Attorney General; Timothy P. Zintak, Assistant Attorney General. Argument by Mr. Zintak.

Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.

FOX, Justice.

[¶1] A Wyoming Highway Trooper stopped Dallas Clem Mitchell for a traffic violation. While Mr. Mitchell was outside the vehicle, his passenger, Bret Allyn Feser, jumped over the console, put the car in gear, and sped away, leading law enforcement on a high-speed chase. A search of the vehicle uncovered 74.19 pounds of marijuana and 139.5 grams of marijuana concentrate. Mr. Mitchell appeals his convictions for possession with intent to deliver and conspiracy to deliver a controlled substance. We affirm.

ISSUES

[¶2] We rephrase the issues:

I. Did the district court err when it allowed the State to play a recorded phone call between Mr. Mitchell and his co-defendant?

A. Did the district court abuse its discretion when it admitted the recording over his relevance objection?

B. Did the district court abuse its discretion when it admitted the recording without conducting a Gleason analysis?

II. Did the district court abuse its discretion when it refused to give Mr. Mitchell's proposed modification to the pattern jury instruction on possession?

III. Was the evidence sufficient to support Mr. Mitchell's convictions for possession and conspiracy?

FACTS

[¶3] Shortly after midnight on August 26, 2018, Wyoming Highway Trooper Kevin Legerski followed a Toyota Corolla with California license plates as it passed through a construction zone on I-90 near Sheridan. When he saw the car come so close to the traffic cones that he thought it would hit them, and then drift across the lane over the fog line, he activated his dash camera. The car continued to weave and Trooper Legerski activated his lights and pulled it over.

[¶4] As Trooper Legerski approached, he saw two men and two dogs in the car, and one of the dogs, which looked like a gray pit-bull, was acting "rather protective." He identified the driver as Dallas Mitchell and the passenger as Bret Feser. The men were on a road trip that apparently began in Oregon. When Trooper Legerski told the men why he had pulled them over, Mr. Mitchell said he was "just tired" and asked if they should switch drivers. Trooper Legerski answered, "Well, let's just wait a second and try to figure this out."

[¶5] As they spoke, Trooper Legerski smelled a strong odor of raw marijuana coming from inside the vehicle. He asked "where the weed was" and Mr. Feser produced from the glove box a brown paper bag that appeared to contain dispensary items. Mr. Feser stated the items in the bag were his. Mr. Mitchell handed him a green metal grinder which appeared to contain a small amount of marijuana and stated it belonged to him.

[¶6] Trooper Legerski then asked Mr. Mitchell to step out of the vehicle so that he could perform a sobriety test. As he left the vehicle, Mr. Mitchell asked if he could put on a sweatshirt because it was a chilly night. Trooper Legerski agreed, and Mr. Mitchell reached into the car and put on a yellow or bright green Puma hoody, which was later found to have the tag on it from the department store, Ross. Mr. Mitchell admitted that he had smoked marijuana the prior evening. Mr. Mitchell successfully completed the sobriety test, and Trooper Legerski asked him again if there was any more marijuana in the vehicle because "sometimes people have user amounts in the glove box, but then have a hay bale in the trunk." Trooper Legerski said he needed to check the car for more marijuana before citing Mr. Feser for misdemeanor possession and letting them go. Around that time, Sheridan County Sheriff's Deputy, Ryan Kerns, arrived.

[¶7] As they were trying to figure out how to get the dogs out of the car, Mr. Feser jumped over the console into the driver's seat, threw the car into gear, and sped away. Leaving Mr. Mitchell with Deputy Kerns, Trooper Legerski ran to his patrol car to pursue Mr. Feser. Deputy Kerns told Mr. Mitchell he was going to place him in investigative detention, cuffed him, and drove him to the Sheridan County Detention Center.

[¶8] The pursuit of Mr. Feser at times reached speeds over 100 miles per hour, and eventually entered Campbell County. At one point, Mr. Feser hit a deer but continued to flee. The chase ended when law enforcement spiked the Corolla's tires. Mr. Feser fled the vehicle on foot, leaving the dogs behind. Several hours later, law enforcement located him and took him into custody without incident.

[¶9] With the help of another officer, known as the "dog whisperer," Trooper Legerski was able to coax the dogs from the vehicle so they could search it. They found three roller bags filled with multiple vacuum-sealed packages of a green leafy substance in the trunk, and various amounts of dispensary items and suspected marijuana in the center console, glove box, and passenger door pocket. They also found a black backpack that contained numerous money bands with different colors and labels ranging from $100 to $10,000; another roller bag which contained more vacuum-sealed packages of suspected marijuana; and a large garbage bag, which contained clothing that Mr. Mitchell later claimed was his, a Ross department store shopping bag, and another black bag containing a stack of money bands. All together, they found 74.19 pounds of marijuana, and 139.5 grams of a marijuana concentrate known as "shatter." Each of the roller bags still had Ross price tags attached.

[¶10] Mr. Mitchell was charged with possession of a controlled substance with intent to deliver, in violation of Wyo. Stat. Ann. § 35-7-1031(a)(ii), and with conspiracy to deliver a controlled substance, in violation of Wyo. Stat. Ann. §§ 35-7-1042 and 35-7-1031(a)(i). He filed a demand for disclosure under Wyoming Rules of Evidence 404(b). The State did not respond. The State did file a pre-trial memorandum listing potential witnesses and exhibits, and an amended memorandum adding to its exhibits list a DVD with several jail phone calls from Mr. Feser to Mr. Mitchell.

[¶11] At Mr. Mitchell's trial, the State called Special Agent John Kelly Broad of the Wyoming Division of Criminal Investigation, who interviewed Mr. Mitchell after his arrest.

Special Agent Broad testified that he monitored all of the calls at the Sheridan County Detention Center between Mr. Mitchell and Mr. Feser. Several calls were made when Mr. Feser was still incarcerated and Mr. Mitchell was out on bond, and Special Agent Broad testified that he identified Mr. Mitchell in those calls by his voice, by his phone number, and because he believed Mr. Mitchell identified himself as "Dallas" on at least one of the calls.

[¶12] Mr. Mitchell's attorney indicated concern that Special Agent Broad was going to testify to the substance of the conversations. In a lengthy sidebar, which we summarize for clarity, the defense raised numerous objections, including the best evidence rule, foundation, relevance, and hearsay, among others. The court overruled the hearsay objection, stating that Mr. Mitchell's statements are not hearsay. The court sustained the best evidence rule objection, and asked what Special Agent Broad's testimony would be. The State indicated it would show that Mr. Mitchell had apologized to Mr. Feser for driving through Wyoming, that he intended to pay Mr. Feser's bond, and that the men talked in detail about the stop. The court asked why the State had not simply prepared a tape with the relevant statements, and the State responded that doing so would be extremely time consuming and it felt Special Agent Broad's testimony was the best way to introduce Mr. Mitchell's statements. Skeptical, the court ordered a 15-minute recess for the State to determine the extent of the recordings, and the State returned with the single, unedited, 26-minute recording now at issue. Over Mr. Mitchell's renewed hearsay and foundation objections, the court admitted the recording, and the State played it in full.

[¶13] The jury heard Mr. Mitchell apologize to Mr. Feser for taking a route through Wyoming instead of staying on I-94 (in Montana). They heard Mr. Mitchell say he felt guilty being free while Mr. Feser was not. And they heard him say he intended to help pay for Mr. Feser's $25,000 bond, even if it meant he had to sell his house. Throughout the call, the men also laughed and joked about the stop and the details of Mr. Feser's flight. They criticized the State for prosecuting them for what they felt was a small amount of a relatively harmless drug compared to "dope." And they talked about how each had resisted pressure to turn on one another in order to get a "deal."

[¶14] Mr. Mitchell also discussed his current legal troubles in South Dakota:

• "South Dakota's trying to give me the business, they're trying to fry me."

• "I called him today, like I talk to my PO every day, and he told me there's no warrant out for me and they're trying to work with me. But they're trying to trick me bro, honestly, they want me back on violation—they want me behind bars."

• "South Dakota is trying to f*** me up right now so I can't get proper, proper assets to deal with things, or the proper, like ... I can't deal with it from South Dakota anyways, you know, once they put me in South Dakota incarceration, I'm f***ed."

Finally, Mr. Mitchell mentioned his criminal history, saying, "Yeah, and I had half a pound of weed before in my life, that's it."

[¶15] Mr. Mitchell's counsel offered a jury instruction drawn from language...