Summary 2010 WY 159

Summary of Decision December 8, 2010

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Case Name: Nelson V. State

Citation: 2010 WY 159

Docket Number: S-10-0085

URL: http://tinyurl.com/2akxd4q

Appeal from the District Court of Campbell County, The Honorable Dan R. Price II, Judge

Representing Appellant (Defendant): Diane Lozano, State Public Defender, PDP; Tina Kerin, Appellate Counsel. Argument by Ms. Kerin.

Representing Appellee (Plaintiff): Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; John S. Burbridge, Senior Assistant Attorney General; Affie B. Ellis, Assistant Attorney General. Argument by Ms. Ellis.

Date of Decision: December 8, 2010

Facts: An informant provided DCI with a list of individuals from whom he thought he could obtain drugs. Defendant’s name was one of those on the list. The informant contacted the Defendant and she told him that she could get him drugs.

Prior to trial, Defendant served the prosecution with a motion pursuant to W.R.E. 404(b) for disclosure of any evidence of other misconduct it intended to introduce at trial. The prosecution did not respond to the motion. Also prior to trial, Defendant asked the district court to instruct the jury concerning the entrapment defense. After the pretrial conference but before the trial, the district court advised counsel that it had concluded the entrapment defense was not relevant and it would not give the instruction.

At trial, during the prosecution’s questioning, the prosecution’s DCI witness testified that Defendant had told him at the time of her arrest that she had sold cocaine to the informant “either once or twice in July.” Defense counsel objected on the grounds that the prosecution had not given notice that it intended to introduce evidence of other misconduct. The district court overruled the objection. During cross-examination of the Defendant, the prosecution also inquired about her involvement with drugs prior to the delivery to the informant. The district court again overruled defense counsel’s objection and allowed the testimony.

After the close of the evidence, defense counsel renewed his request for an entrapment instruction. The district court declined to give the instruction, concluding the evidence presented did not support a contention that law enforcement improperly induced Defendant to act illegally. The jury found Defendant guilty of delivering cocaine. Defendant appealed, claiming error in the district court’s refusal to give an entrapment instruction and the prosecutor’s failure to give notice of intent to use W.R.E. 404(b) evidence.

Issues: Whether the trial court erred in refusing to give an entrapment instruction. Whether the prosecutor used W.R.E. 404(b) evidence without notice to defense counsel.

Holdings: The Defendant testified that she tried telling the informant no but he would not take no for an answer. The informant’s testimony about his contact with the Defendant largely corroborated her testimony. The jury, if it believed Defendant’s testimony, could reasonably have concluded that the informant’s repeated calls were sufficiently harassing to induce her to commit a crime. The question was not whether she proved she was entrapped, but whether the evidence was sufficient to require giving the instruction and let the jury decide whether it believed she was entrapped. The Court held that it was.

In the second issue, the Court concluded the prosecutor’s assertion that he did not intend to introduce evidence that the Defendant used marijuana three to four years earlier was not sufficient to overcome the 404(b) notice requirement. Previous holdings in Reay and Schreibvogel were not intended to suggest that prosecutors can avoid claims that they failed to give the required notice by simply asserting they did not intend to introduce the evidence. Furthermore, whether or not defense counsel opened the door to the testimony, the prosecution should have provided notice of the evidence in response to Ms. Nelson’s disclosure motion.

The Court’s conclusion that error occurred when the district court declined to give an entrapment instruction made it difficult to evaluate the question of whether prejudice resulted from lack of notice of the 404(b) evidence. Under the circumstances, the Court declined to consider whether the lack of notice under 404(b) led to material prejudice.

Chief Justice Kite delivered the opinion for the court.