Summary 2011 WY 63

Summary of Decision April 13, 2011

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Case Name: Majors v. State

Citation: 2011 WY 63

Docket Number: S-10-0157

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461969

Appeal from the District Court of Washakie County, Honorable Robert E. Skar, Judge

Representing Appellant (Defendant): Diane Lozano, State Public Defender, PDP; Tina Kerin, Appellate Counsel; David E. Westling, Senior Assistant Appellate Counsel.

Representing Appellee (Defendant): Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Justin A. Daraie, Assistant Attorney General.

Date of Decision: April 13, 2011

Facts: Appellant was convicted after a jury trial of misdemeanor possession of marijuana and felony possession of ecstasy.

Issues: Whether the trial court erred by allowing a sheriff’s deputy who participated in the investigation of the case at bar to act as the court’s bailiff and take charge of the jury and then further erred by denying Appellant’s motion for a mistrial, thereby denying her due process of law. Whether the trial court erred by admitting a recording containing hearsay statements from a third party allegedly implicating Appellant in the delivery of controlled substances despite the fact that those statements did not fall within any recognized exceptions to the prohibitions against admitting hearsay evidence. Whether the trial court erred in refusing to grant Appellant’s motion for sanctions against the State of Wyoming for not preserving possible exculpatory evidence and not disclosing the existence of the same.

Holdings: It was improper for an officer who participated in the investigation to act as bailiff at the trial. Because he had participated in the investigation, the officer had personal knowledge of the facts in dispute and should have been disqualified from acting as bailiff. Although the appointment of one of the investigating officers as bailiff was erroneous, in resolving whether the district court abused its discretion by denying the motion for a mistrial, it must be determined whether Appellant was denied her constitutional right to due process and a fair trial by an impartial jury.

The officer was not a principal witness in the case. In fact, he apparently was not even initially listed as a possible witness by either side. It was not until the primary investigating officer could not answer certain questions about the drug dog alerts that his testimony was determined to be necessary by the defense. Moreover, his testimony was not particularly critical and was, in fact, helpful to the defense because he testified that the dog did not alert on any of Appellant’ other belongings (except the black bag, which the other officers had already discussed) or her car. Additionally, the record does not contain any specific information about the nature of the communication between the officer and the jury. There is absolutely no evidence in the record that he did anything as bailiff other than the routine, administrative matters he was charged with performing. It must be assumed, for the purposes of this case, that the officer communicated with the jury only to the extent permitted by law. Thus, it cannot be said that Appellant was prejudiced by the admittedly unorthodox procedures employed here. The officer was not a key witness and there is no indication of any improper contacts between him and jury. Consequently, the district court did not abuse its discretion by replacing him as bailiff and denying Appellant’ motion for a mistrial.

Law enforcement recorded a drug transaction between Appellant’s mother and a confidential informant. The recorded statements at issue were made outside of court and, therefore, qualify under the basic definition of hearsay. W.R.E. 801(c). The State argues, that the statements were not hearsay because they were only elicited for the purpose of providing context to the later search and not for the truth of the matter asserted, i.e., that Appellant had a “whole bunch” of ecstasy and would bring the drugs “back” with her. If the testimony was elicited in an effort to provide context for the officer’s investigation, rather than for the truth of the matter asserted, it is admissible for a limited purpose. The State’s argument that the statements were not admitted for the truth of the matter asserted is belied by the prosecutor’s closing argument. There is simply no question that the prosecution intended to use the taped statements to prove that Appellant supplied her with illegal drugs. The State clearly indicated that the recorded statement was substantive evidence of Appellant’s possession of the controlled substances and her intent to deliver them. Thus, the statements were hearsay and were not admissible unless they fell within an exception to the hearsay rule.

The State argues that the statements were admissible as evidence of the Appellant’s mother’s present state of mind under W.R.E. 803(3). This exception is generally used when a non-party declarant’s (often the victim’s) state of mind is relevant. The problem with the State’s argument regarding the Rule 803(3) exception in the present case is the same as the problem with its argument that the evidence was not hearsay—the record clearly shows that the prosecution was not seeking admission of the evidence simply to show the declarant’s state of mind; the State fully intended that the evidence be viewed by the jury as substantive evidence of Appellant’ delivery of illegal drugs. Therefore, the evidence was hearsay, it was not admissible because it did not fall within any recognized exception and the district court erred by admitting it.

Reversal is required only if the error prejudiced the defendant. The error is harmful if there is a reasonable possibility that the verdict might have been more favorable to the defendant if the error had never occurred. To demonstrate harmful error, [the defendant] must prove prejudice under “circumstances which manifest inherent unfairness and injustice, or conduct which offends the public sense of fair play.” Appellant was convicted of possession of marijuana and possession of ecstasy. It cannot be said that the error in admitting the hearsay statements prejudiced Appellant with regard to the marijuana charge because the statements did not specifically relate the marijuana to Appellant. Moreover, other trial evidence directly implicated Appellant in the marijuana possession charge. However, the ecstasy conviction is another matter. In light of the entirety of the trial evidence, there is a reasonable probability the jury may have acquitted Appellant on the ecstasy possession charge had the improper evidence not been admitted. These circumstances manifest inherent unfairness and injustice. Therefore, the conviction for possession of the ecstasy is reversed.

On the second day of trial, Appellant filed a motion for sanctions based upon the State’s failure to provide the defense with access to a blue-green bottle shown in the prosecution photos. The defense argued the bottle was potentially exculpatory because it could have had a label with someone else’s name on it or contained another person’s fingerprints. The prosecutor responded that the bottle was not collected during the search. The chief investigating officer testified at the hearing and stated that he did not recall the blue pill bottle. He stated, “my focus was more on any kind of drug paraphernalia identification, anything that would relate to our case at the time.” He also stated that he did not “deliberately leave anything out.” The district court denied the motion for sanctions, stating the defense had not demonstrated that “there’s clearly exculpatory evidence within the purse, the bottle, or otherwise.” The district court stated, however, that it would allow fair comment on the contents of the photographs and the failure to collect or disclose the evidence contained within the purse, that this is not a complete inventory of what was in the purse, and fair comment would be that this was not completely done as an inventory.

Whatever duty the Due Process Clause imposes on the government to preserve evidence, it is limited to evidence that might be expected to play a significant role in the suspect’s defense. The government violates due process when it destroys evidence (1) whose exculpatory value is apparent before its destruction and (2) is of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. No due process violation occurs unless the defendant demonstrates the government acted in bad faith. In the present action, Appellant suggests that the State’s actions in failing to collect the bottle prevented her from showing that the evidence was potentially useful. Even if the bottle may have contained such evidence, it is not known how useful that would have been to Appellant. It was already established that there was money in the bag which had originally been given by the confidential informant to Appellant’s mother during a controlled buy. There was clearly a relationship between the items in the bag and both Appellant and her mother. Moreover, the damning evidence of Appellant’s fingerprint on the marijuana bottle would not have been discounted regardless of the attributes of the blue bottle. Additionally, there is absolutely no evidence that the officers had any idea of the exculpatory value of the bottle or had a nefarious intent when they failed to collect it. The chief investigating officer testified that he could not really remember the bottle, but he would have collected it if he felt it had any significance. There is simply no basis in the record to conclude that law enforcement acted in bad faith by failing to collect the bottle. Moreover, it cannot be discerned that any prejudice occurred as a result of the State’s failure to collect the bottle. The bottle was presumably still at the residence, which was in the possession of Appellant and/or her mother. Had Appellant considered it crucial evidence, she could have collected it. In addition, the district court allowed the defense to question witnesses about the missing bottle and argue that the State failed to collect all potentially relevant evidence. Defense counsel took full advantage of that opportunity and it obviously did not sway the jury. The district court did not err by concluding that the State did not violate Appellant’s due process rights or denying her motion for sanctions.

The district court properly denied Appellant’s mistrial motion which was based on the fact that the trial bailiff was part of the investigating team and a witness at trial. There was no showing that Appellant was denied a fair trial as a result of the bailiff’s association with the prosecution team. The district court erred by admitting the hearsay recording of the conversation between the confidential informant and Ms. Smith into evidence at trial. That ruling was prejudicial with regard to the ecstasy possession charge and the conviction on that count is reversed. Finally, Appellant’s due process rights were not violated when the State failed to collect a blue bottle shown in photographs; therefore, the district court properly denied her motion for sanctions against the State.

Affirmed in part and reversed and remanded in part for further proceedings consistent with this decision.


C.J. Kite delivered the opinion for the court