Burke v. State

• Decision Date: 03 December 1987
• Docket Number: No. 86-67,86-67
• Citation: 746 P.2d 852
• Parties: Tammy BURKE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 852

746 P.2d 852

Tammy BURKE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 86-67.

Supreme Court of Wyoming.

Dec. 3, 1987.

Leonard D. Munker, State Public Defender, Julie D. Naylor, Appellate Counsel (argued), Gerald M. Gallivan, Wyoming Defender Aid Program, and Megan Olson, Student Intern, for appellant.

A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., John W. Renneisen, Mary B. Guthrie, Sr. Asst. Attys. Gen., and Gerald P. Luckhaupt, Asst. Atty. Gen. (argued), for appellee.

Before BROWN, C.J., and THOMAS, CARDINE, URBIGKIT and MACY, JJ.

CARDINE, Justice.

Appellant was convicted of aiding and abetting in the delivery of methamphetamine in violation of §§ 6-1-201(a), W.S.1977, 35-7-1031(a)(ii), W.S.1977, Cum.Supp.1985, and 35-7-1016(d)(ii), W.S.1977, Cum.Supp.1985, and delivery of methamphetamine in violation of § 35-7-1031(a)(ii), W.S.1977, Cum.Supp.1985. She raises the following issues on appeal:

"I. Whether the Defendants have been denied due process and equal protection of the law by the actions of the prosecution in deliberately avoiding the preliminary hearing and obtaining indictments without observing minimal standards of fundamental fairness.

"II. Whether the current grand jury was improperly impaneled under Section 7-5-102 in that there was no necessity for said body, requiring the dissolution of the panel and the dismissal of the indictments.

"III. Whether the indictments in these cases are fatally defective for failure to conform to the statutory requirement that the foreman endorse the words 'A True Bill' upon each indictment.

"IV. Whether the indictments should be dismissed because the conduct of the grand jury lacks any indicia of reliability in the assessment of probable cause.

"V. Whether the two tape recordings were erroneously admitted under the co-conspirator exception to the hearsay rule.

"VI. Whether the prosecutor's question and gesture directed at Appellant's boyfriend resulted in Appellant being denied a fair trial.

"VII. Whether the Court can require a Defendant to pay for costs of prosecution as a part of her sentence."

The first four issues concerning the grand jury are the same issues presented to this court in Hennigan v. State, Wyo., 746 P.2d 360 (1987). We determined that there was no error with respect to those issues in Hennigan; and, for the reasons stated, we hold there was no error here with respect to issues I-IV. Upon the balance of the issues presented in this case, we affirm but modify the sentence to delete the conditions of probation requiring payment of costs of prosecution and reimbursement of attorney fees.

FACTS

On January 17, 1985, appellant's husband Mike Burke, Gus Skurdal, and David Lauck met at Decker's East grocery store on Highway 59 in Campbell County. At that meeting Mr. Lauck, an undercover narcotics agent for the Campbell County Sheriff's Office, arranged to buy a half ounce of methamphetamine from Burke. Lauck "fronted" $1,100 to Burke and agreed to pick up the methamphetamine at Burke's residence the next day. When Lauck arrived at the Burke residence (a "trailer house" shared by appellant, Burke, and Skurdal), appellant was home, but Burke was not. Appellant suggested to Lauck that they search downtown for Burke. Lauck agreed and then drove appellant to several bars and a haircutting establishment in the downtown area. At each stop Lauck waited in the car while appellant went inside each establishment to search for her husband. She did not find him. Lauck drove her home, and she told Lauck that her husband would call him later, once he came home. Mike Burke called Lauck that evening from the trailer house and told him that he could come over and pick up the methamphetamine. Lauck drove to the Burke residence where Mike Burke gave him the methamphetamine. Appellant and Gus Skurdal were present when the transaction occurred.

On May 22, 1985, Gus Skurdal called Agent Lauck to set up another methamphetamine transaction. Lauck testified that he went to the Burke residence later that day and gave appellant $200 in exchange for two and one-half grams of methamphetamine. Appellant testified that she had no recollection of this transaction because on the day in question she was under the influence of medication prescribed by her dentist.

THE CO-CONSPIRATORS' STATEMENTS

During direct examination of Officer Lauck, the prosecutor offered into evidence two audio tapes and requested that they be played for the jury. The first tape, offered in support of Count I, contained a January 17, 1985 telephone conversation between Agent Lauck and Mike Burke in which the two men set up the meeting at Decker's. The second tape, offered in support of Count II, contained a May 22, 1985 conversation between Lauck and Gus Skurdal in which Skurdal told Lauck that he could come to the Burke residence to pick up two and one-half grams of methamphetamine from appellant. The defense objected to the admission of both tapes on the grounds of hearsay and confrontation. The trial court overruled the objections, concluding that the statements were admissible under Rule 801(d)(2)(E), W.R.E., as statements of a co-conspirator during the course of and in furtherance of a conspiracy. Appellant now argues that the trial court erred in admitting the two tapes because the State did not produce sufficient evidence of a conspiracy on either count.

Under the Wyoming Rules of Evidence a statement is not hearsay if

"[t]he statement is offered against the party and is * * * (E) a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy." Rule 801(d)(2)(E), W.R.E.

We have held that statements may be admitted into evidence under Rule 801(d)(2)(E) even if a conspiracy is not charged. Jasch v. State, Wyo., 563 P.2d 1327, 1333 (1977). In order for statements of a co-conspirator to be admitted under the rule, there must be prima facie evidence of a conspiracy independent of the co-conspirators' statements. Dorador v. State, Wyo., 711 P.2d 417, 418 (1985). This burden is met if there is sufficient evidence to permit the trial court to reasonably infer that a conspiracy existed. Id. at 418-419.

Our general conspiracy statute defines the elements of conspiracy as: (1) an agreement between one or more persons to commit a crime, and (2) an overt act to effect the objective of the agreement. Section 6-1-303, W.S.1977. ¹ The existence of an agreement may be established through circumstantial evidence:

"One might suppose that the agreement necessary for conspiracy is essentially like the agreement or 'meeting of the minds' which is critical to a contract, but this is not the case. Although there continues to exist some uncertainty as to the precise meaning of the word in the context of conspiracy, it is clear that the definition in this setting is somewhat more lax than elsewhere. A mere tacit understanding will suffice, and there need not be any written statement or even a speaking of words which expressly communicates agreement. * * *

"Because most conspiracies are clandestine in nature, the prosecution is seldom able to present direct evidence of the agreement. Courts have been sympathetic to this problem, and it is thus well established that the prosecution may 'rely on inferences drawn from the course of conduct of the alleged conspirators.' " (Footnotes omitted.) W. LaFave and A. Scott, Criminal Law (1972) at pp. 460-461.

With respect to Count I, the State introduced the following evidence through the testimony of Agent Lauck: Lauck met with Mike Burke and Gus Skurdal and "fronted" the money for the drug purchase. He went to appellant's home to pick up the methamphetamine, and only appellant was there. Appellant told Lauck that her husband had acquired the methamphetamine and that it was of good quality. Appellant seemed afraid that Officer Lauck would be upset because the methamphetamine was not at the house at that time. At her own suggestion, she accompanied Lauck on a search for her husband; and, while on that search, she actively tried to find him. She continually reassured Lauck that the methamphetamine had been obtained and that he could get it from Mike Burke as soon as they found him. At this point in Lauck's testimony the trial court correctly admitted the first tape. The testimony supported an inference that an understanding existed between appellant and her husband, the understanding being that appellant would assist in delivering the methamphetamine. Her active assistance satisfied the overt-act requirement.

With respect to Count II, Lauck testified that on May 22, after agreeing to purchase two and one-half grams of methamphetamine from Gus Skurdal for $200, Lauck went to appellant's residence where he and appellant consummated the transaction on the same terms he had discussed with Skurdal. At this point the trial court admitted the second tape. This ruling was also correct, as the evidence supported an inference that appellant and Gus Skurdal agreed or understood that appellant would deliver the methamphetamine to Lauck. The delivery satisfied the overt-act requirement. The tapes were properly admitted.

PROSECUTORIAL MISCONDUCT

In his cross-examination of appellant, the prosecutor sought to establish that appellant was a drug user and that drugs were often present in her home. At one point during his questioning of appellant, the following exchange occurred:

"Q. Okay. From June 6th to June 26th, you had friends over and you used drugs inside that trailer?

"A. No, I did not.

"Q. Well, weren't you in bed with that man right back there when you were arrested and he had drugs?"

Defense counsel immediately objected, approached the bench, and asked for a mistrial:

"MR. WEERTS: I'd ask for a mistrial now. I think bringing up what Mr. Murray just did has totally ruined this case. She cannot get a fair trial, and I think that we must have a mistrial at this point. Bringing up the fact that ...