Gilliam v. State, 94-68
| Decision Date | 27 February 1995 |
| Docket Number | No. 94-68,94-68 |
| Citation | 890 P.2d 1104 |
| Parties | Charis GILLIAM, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Leonard D. Munker, State Public Defender, Deborah Cornia, Appellate Counsel, and Jennifer Cudworth, Asst. Public Defender, representing the appellant.
Joseph B. Meyer, Atty. Gen., Sylvia Lee Hackl, Deputy Atty. Gen., D. Michael Pauling, Sr. Asst. Atty. Gen., and Georgia L. Tibbetts, Asst. Atty. Gen., representing the appellee.
Before GOLDEN, C.J., and THOMAS, MACY, TAYLOR and LEHMAN, JJ.
Appellant Charis Gilliam appeals from her conviction for conspiracy to deliver marijuana.
We affirm.
Appellant presents three issues:
ISSUE I
Was it error to admit the hearsay statements of an alleged co-conspirator without a prima facie showing that a conspiracy existed, of appellant's membership in the conspiracy, or that such statements were made in furtherance of the conspiracy?
ISSUE II
Was the evidence produced at trial insufficient to prove beyond a reasonable doubt all elements of the crime of conspiracy to deliver a controlled substance?
ISSUE III
Was it ... error to deny Appellant the theory of her defense by rejecting submitted instructions?
Appellant worked part time for the Central Wyoming Food Coalition (the Coalition) in Casper, doing administrative work. Her husband, Jim Gilliam, worked full time for the Coalition as the warehouse manager.
In March of 1993, a confidential informant, who was working for the Wyoming Division of Criminal Investigation (the DCI), went to the Coalition with another individual in an attempt to purchase marijuana as part of a DCI undercover investigation. The informant met with Appellant and her husband, and they discussed the possible marijuana purchase. At trial, the informant described Appellant's participation in the meeting:
Q. How did it happen that she said anything, what was going on when she entered the convers[at]ion?
A. I was discussing price with her husband, Jim Gilliam, I had told him I had some other pot lined up, but would cost me a lot, and she then told me if I could hang on a couple days, she could probably give me a better price.
Q. What terminology was being used at that point in time, was the word pot or marijuana, how do you know what you were talking about?
A. At the time I believe we used dope.
Q. Did [Appellant] appear to know what you were talking about?
A. Yes.
Appellant's husband instructed the informant to use the term "groceries" as a code word for marijuana and the term "pallet" as a code word to describe the quantity of marijuana in either pounds or ounces. He also gave the Coalition's telephone number to the informant, and the informant left the Coalition that day without buying any marijuana.
During the next week, the informant made several telephone calls to the Coalition in an attempt to arrange a second meeting when he could make the marijuana purchase. DCI agents recorded each of the calls. Appellant answered the first call, and, in response to the informant's statement that he was "[j]ust looking for some groceries," "[m]aybe 'bout like a half pallet or a quarter pallet," Appellant stated that her husband was not there but that he would be back in about forty-five minutes and that "he [had] talked to that guy that ha[d] those groceries ... on the pallets." The informant agreed to call back later as his "cupboards [were] running low, and [he would] need to get some groceries quick."
Appellant also answered the second call from the informant in which she told the informant that her husband was not available but that they had gotten She advised the informant that the pallet was "in the back of the truck" and on its way to the Coalition and that he should "gather up and come down." At that point, the informant informed Appellant that the grocery bill was too high and that he needed to wait for someone from Sheridan to arrive with a little more money before he could pick up his groceries.
Appellant's husband answered the last two calls, during which he and the informant arranged the details for a second meeting when they planned to complete the marijuana sale. In both calls, the informant and Appellant's husband used the same code words to refer to quantities of marijuana. In the recording of the last call, Appellant can be heard in the background, helping to make arrangements for picking up the informant and bringing him to the Coalition for the sale. After some discussion took place between Appellant and her husband as to the locations of the Motel 6 where the informant was staying and a nearby convenience store, Appellant's husband instructed the informant to start walking toward the convenience store where Appellant would meet him to give him a ride to the Coalition.
Appellant picked up the informant and brought him to the Coalition for the second meeting with her husband. On the way to the Coalition, Appellant became nervous when she spotted several vehicles which she suspected were undercover police vehicles. The informant was wearing a concealed wireless microphone, and DCI agents recorded the conversation which occurred between the informant, Appellant, and Appellant's husband after Appellant and the informant arrived at the Coalition. Appellant's husband told the informant that he was nervous because a strange vehicle had parked nearby just as Appellant and the informant had arrived. He lifted the informant's shirt and searched him for a microphone, but he was unable to detect the microphone. He also asked Appellant to drive around the block to see if any cars were following her. Appellant's husband was also worried that the office had been "wired" and that he was being "set up," and he gave the informant a note which instructed him not to mention either the product or the price. When Appellant returned, she and her husband began to suspect that Appellant had been followed by DCI vehicles. The meeting ended before a marijuana sale could be made.
The DCI agents who were recording the meeting did not go into the Coalition and arrest the Gilliams at that time. They did not want to make an arrest until they could identify the source of the marijuana, and they did not want to compromise other investigations in which the informant was involved. When Appellant was arrested a few weeks later, she admitted that she knew what the informant was talking about when he used the code words to refer to quantities of marijuana.
Appellant was charged with conspiracy to deliver marijuana in violation of WYO.STAT. §§ 35-7-1031(a)(ii) and 35-7-1042 (1994), 1 and she entered a plea of not guilty. A jury trial was held, and the jury found Appellant guilty. The district court sentenced Appellant to successfully complete three years of supervised probation.
Appellant contends that the trial court erred by admitting her husband's statements because the statements were hearsay and that these statements did not meet the prerequisites for admission pursuant to W.R.E. 801(d)(2)(E). 2
Three elements must be demonstrated before a statement can be admitted as non hearsay under Rule 801(d)(2)(E), W.R.E. There must be evidence of a conspiracy; evidence that the declarant and the defendant both were involved in the conspiracy; and a showing that the proffered statements were made during the course of, and in furtherance of, the conspiracy. The first two requirements insure that the statements were in fact made by a co-conspirator, and the last introduces a measure of relevance and trustworthiness.
We previously have held that these elements may be demonstrated by prima facie evidence. We concluded that such a showing is adequate, and we required neither a preponderance of the evidence nor proof beyond a reasonable doubt. In addition, we have recognized that because of the covert nature of the crime of conspiracy, the foundation may be established with circumstantial evidence.
Jandro v. State, 781 P.2d 512, 521-22 (Wyo.1989) (citations omitted).
Appellant contends that our prima facie evidence standard of proof violates the United States Supreme Court's ruling in Bourjaily v. United States, 483 U.S. 171, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987), wherein that Court adopted a preponderance of the evidence standard of proof:
Petitioner and the Government agree that the existence of a conspiracy and petitioner's involvement in it are preliminary questions of fact that, under [F.R.E.] 104, must be resolved by the court. The Federal Rules, however, nowhere define the standard of proof the court must observe in resolving these questions.
We are therefore guided by our prior decisions regarding admissibility determinations that hinge on preliminary factual questions. We have traditionally required that these matters be established by a preponderance of proof.... Therefore, we hold that when the preliminary facts relevant to [F.R.E.] 801(d)(2)(E) are disputed, the offering party must prove them by a preponderance of the evidence.
483 U.S. at 175-76, 107 S.Ct. at 2778-79. Nothing in Bourjaily indicates that the United States Constitution requires the state courts to adopt the preponderance of the evidence standard of proof. See, e.g., People v. Taylor, 260 Ill.App.3d 976, 198 Ill.Dec. 175, 178, 632 N.E.2d 234, 237, appeal denied, 158 Ill.2d 564, 206 Ill.Dec. 845, 645 N.E.2d 1367 (1994); State v. Lynn, 67 Wash.App. 339, 835 P.2d 251, 255 n. 11 (1992). We do not see any need or reason to deviate from our precedent.
Appellant asks this Court to adopt the federally preferred order of proof, which would thereby remove the danger of injecting the record with inadmissible hearsay in anticipation of proof of a conspiracy which may never materialize. In Jandro, we stated:
We recognize that a preferred order of proof may well exist. It is far easier to analyze contentions such as...
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