Gilbert v. State, S-21-0193

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtKAUTZ, JUSTICE.
Citation2022 WY 62
PartiesBRIAN NEAL GILBERT, Appellant (Defendant), v. THE STATE OF WYOMING, Appellee (Plaintiff).
Docket NumberS-21-0193
Decision Date23 May 2022

2022 WY 62

BRIAN NEAL GILBERT, Appellant (Defendant),

THE STATE OF WYOMING, Appellee (Plaintiff).

No. S-21-0193

Supreme Court of Wyoming

May 23, 2022

Appeal from the District Court of Natrona County The Honorable Kerri M. Johnson, Judge

Representing Appellant: Office of the State Public Defender: Diane Lozano, State Public Defender; Kirk A. Morgan, Chief Appellate Counsel; H. Michael Bennett, Senior Assistant Appellate Counsel; Patricia L. Bennett, Senior Assistant Public Defender. Argument by Ms. Bennett.

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




[¶1] Brian Neal Gilbert was convicted by a jury of various methamphetamine-related offenses and sentenced to 4-8 years in prison. He maintains the trial judge should have recused herself from presiding over the case because she represented him in similar criminal matters before she was appointed as a judge. He also argues the district court abused its discretion by denying his motion in limine seeking to admit evidence under Wyoming Rule of Evidence (W.R.E.) 608(b). We affirm.


[¶2] Mr. Gilbert raises two issues which we reorder and restate as follows:

1. Did the district judge err by failing to recuse herself because she previously represented him when she served as a state public defender
2. Did the district court abuse its discretion by denying his motion in limine to admit W.R.E. 608(b) evidence?


[¶3] In November 2019, Michael Barney was released from prison and began selling methamphetamine in Natrona County. Brianna Reed sold methamphetamine for Mr. Barney. Mr. Barney gave her $20 for every "ball" or "eight ball" (3.5 grams) she sold; she used the money to finance her personal drug use.

[¶4] Around Thanksgiving 2019, Mr. Barney and Mr. Gilbert picked up Ms. Reed in Casper and traveled to Thornton, Colorado, where Mr. Barney and Mr. Gilbert planned to each obtain two pounds of methamphetamine. Once in Colorado, Mr. Barney, Mr. Gilbert, and Ms. Reed picked up Destiny Sullivan and her boyfriend and drove to a hotel in Thornton, where they met with Ms. Sullivan's drug source. The source informed Mr. Barney and Mr. Gilbert only two pounds of methamphetamine were available for purchase. Mr. Gilbert and Mr. Barney each paid the source for one pound of methamphetamine and left. On their trip back to Casper, Mr. Barney, Mr. Gilbert, and Ms. Reed stopped at a house in Glenrock. Mr. Gilbert went into the house with his pound of methamphetamine, made a sale, and returned to the car. Mr. Barney and Ms. Reed dropped Mr. Gilbert off at a house in Evansville; Mr. Gilbert took his drugs with him. Mr. Barney and Ms. Reed proceeded to another house in the area, where Mr. Barney made a $1, 000 drug sale. Mr. Barney gave Ms. Reed a "ball" of methamphetamine for going on the trip.

[¶5] A month later, on December 29, 2019, officers from the Casper Police Department arrested Ms. Reed for shoplifting from Menards. To avoid going to jail, Ms. Reed agreed to speak with Special Agent Brad Reinhart of the Wyoming Division of Criminal


Investigation (DCI) and Special Agent Adam Uhrich, a task force officer from the Casper Police Department. During her recorded interview with the agents, Ms. Reed identified numerous individuals involved in the methamphetamine trade in the Casper area, including Mr. Barney. She also recounted the trip she took with Mr. Barney and Mr. Gilbert to Colorado in November 2019. As a result of her cooperation, Ms. Reed was cited for shoplifting and allowed to go home. She eventually pled guilty to the offense and was fined.

[¶6] On January 23, 2020, Mr. Barney was involved in a car accident while driving south on Highway 287 in Carbon County, Wyoming. A search of his vehicle revealed over 45 grams of methamphetamine and various drug paraphernalia including baggies, two digital scales, calibration weights, and spoons. Mr. Barney had over $2, 500 in cash on his person.

[¶7] Later that day, Ms. Reed learned of Mr. Barney's accident and arrest via Facebook. Ms. Reed called Ms. Sullivan to relay the news. Ms. Sullivan was not aware of the accident or arrest but told Ms. Reed that Mr. Barney had been traveling to Colorado to obtain more methamphetamine from her at the time of the accident. She said Mr. Gilbert was also on his way to Colorado to obtain methamphetamine from her but was traveling in a separate vehicle. After Mr. Gilbert left Colorado, Ms. Sullivan called Ms. Reed and told her she had sold drugs to Mr. Gilbert. Ms. Reed was eventually arrested on various drug charges. She gave a proffer statement on August 24, 2020, where she again recounted the November 2019 trip to Colorado.

[¶8] On March 1, 2020, Sergeant Matt Vincent with the Mills Police Department observed Mr. Gilbert driving. He knew Mr. Gilbert had an outstanding traffic warrant and was driving with a suspended license. Sergeant Vincent followed Mr. Gilbert, who pulled into a parking spot in front of a trailer home. Sergeant Vincent approached the vehicle, asked Mr. Gilbert to exit the vehicle, and patted Mr. Gilbert down before placing him in the patrol car. The pat-down search revealed a pipe with methamphetamine residue in Mr. Gilbert's front pants pocket and $570 in cash. Upon the discovery of the pipe, Mr. Gilbert said, "After all this time, you finally got me." Sergeant Vincent, accompanied by another officer, searched Mr. Gilbert's vehicle. They found a baggy containing 32.182 grams of methamphetamine in the back of the vehicle. Mr. Gilbert stated the methamphetamine "was not his, but he wished it was." Sergeant Vincent transported Mr. Gilbert to the jail. Before doing so, he talked with an agent from DCI, who told him about Agent Reinhart's investigation. As a result of obtaining this information, Sergeant Vincent asked Mr. Gilbert if he knew Ms. Sullivan and Mr. Barney. Mr. Gilbert responded, "Yes, so what of it[?]"

[¶9] The State charged Mr. Gilbert with conspiracy to deliver methamphetamine from on or about November 25, 2019, to on or about March 15, 2020, in violation of Wyo. Stat. Ann. §§ 35-7-1031(a)(i) and 35-7-1042 (LexisNexis 2021) (Count 1); possession with intent to deliver methamphetamine on or about March 1, 2020, in violation of § 35-7-1031(a)(i) (Count 2); possession of methamphetamine on or about March 1, 2020, in an


amount exceeding three grams in violation of § 35-7-1031(c)(ii) (Count 3); and possession of a controlled substance (methamphetamine residue in a pipe) on or about March 1, 2020, as a third or subsequent offense in violation of § 35-7-1031(c)(i) (Count 4). The jury found Mr. Gilbert guilty of all four counts. The district court merged Counts 2 and 3 for sentencing and sentenced Mr. Gilbert to a total sentence of 4-8 years in prison.

[¶10] We will address other pertinent facts in our discussion of the issues.


A. Motion to Disqualify

[¶11] Mr. Gilbert's criminal case was assigned to the Honorable Kerri M. Johnson. Despite being represented by appointed counsel, Mr. Gilbert submitted pro se motions. Judge Johnson refused to consider these motions because he was represented by counsel. Defense counsel eventually moved to withdraw. Judge Johnson granted the motion to withdraw and, upon his request, allowed Mr. Gilbert to proceed pro se.

[¶12] While pro se, Mr. Gilbert filed various motions, including a motion to suppress evidence and a motion to dismiss. At the hearing on his motion to dismiss, he orally moved for a "change of venue" because he claimed Judge Johnson had a conflict of interest as she had previously represented him "in two drug cases just like this one where I was not in possession of the drugs and it was found in a vehicle. [She] got me off on two of those charges." Judge Johnson did not address this "motion" or her alleged prior representation of Mr. Gilbert at this hearing.

[¶13] Mr. Gilbert followed up his oral motion with a written "Motion for Change of Venue." He stated Judge Johnson had been his defense attorney when she worked as a state public defender and "[t]he case she defended me on was exactly the same circumstances as this case where drugs were found but not within my possession[.] She got the judge to drop charges at the preliminary [hearing] because the drugs were not in my possession." He argued these facts "alone [were] enough to constitute a conflict of interest" but also claimed Judge Johnson had violated his right to due process by (1) not allowing him to file motions; (2) refusing him access to an investigator's services, thereby preventing him from interviewing witnesses and gathering evidence; (3) failing to require the State to respond to his demands for withheld evidence; (4) refusing to hear his arguments regarding his motion to suppress, instead informing him "that you must object to the evidence as it comes up at trial"; and (5) being biased against him "to the level of malice or even vindictiveness." Judge Johnson assigned the case to the Honorable Catherine E. Wilking for the limited purpose of deciding Mr. Gilbert's "Motion for Change of Venue."


[¶14] Judge Wilking held a hearing on the motion. At the hearing, Mr. Gilbert clarified that his motion for change of venue was really a motion for a change of judge. As a result, Judge Wilking construed it as a motion to disqualify Judge Johnson for cause under Wyoming Rule of Criminal Procedure (W.R.Cr.P.) 21.1. Judge Wilking denied the motion. She noted Mr. Gilbert had not complied with W.R.Cr.P. 21.1 because he failed to support his motion with affidavits. She also determined he had not established Judge Johnson was biased or prejudiced against him as required by the rule.


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