Houghton v. State, 96-99.

• Decision Date: 18 May 2000
• Docket Number: No. 96-99.,96-99.
• Parties: Sandra HOUGHTON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

6 P.3d 643

Sandra HOUGHTON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 96-99.

Supreme Court of Wyoming.

May 18, 2000.

Representing Appellant: Sylvia Lee Hackl, Public Defender; Donna Domonkos, Appellate Counsel; and T. Alan Elrod and Scott J. Olheiser, Student Interns, Wyoming Defender Aid Program.

Representing Appellee: William U. Hill, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Georgia L. Tibbetts, Senior Assistant Attorney General; Theodore E. Lauer, Director, Prosecution Assistance Program, and Sandra Boudreaux, Student Intern.

Before LEHMAN, C.J., and THOMAS, MACY, and GOLDEN, JJ., and TAYLOR, J., Ret.

LEHMAN, Chief Justice.

This is the second time we have considered Sandra Houghton's appeal from a conviction of felony possession of methamphetamine in violation of Wyo. Stat. Ann. § 35-7-1031(c)(iii). In the first appeal, a majority of this court found that the search of Houghton's purse in the course of a traffic stop of the car in which she was riding violated the Fourth Amendment to the United States Constitution and reversed the conviction on that basis without addressing the other issues raised by Houghton. Houghton v. State, 956 P.2d 363 (1998). The State sought review of that ruling by the United State Supreme Court, which held that the search did not violate the Fourth Amendment and reversed our holding. Wyoming v. Houghton, 526 U.S. 295, 119 S.Ct. 1297, 143 L.Ed.2d 408, (1999). On remand to this court from the United States Supreme Court, we are left to consider the three remaining issues raised by Houghton but not addressed in our prior opinion. We find reversible error on the first of those issues, the district court's failure to give a lesser-included offense instruction, and reverse the conviction.

ISSUES

Houghton raises the following issues not previously addressed by this court:

1. Whether the trial court denied her fundamental constitutional right to present a defense by refusing to submit a lesserincluded offense instruction to the jury;

2. Whether the trial court violated her right to counsel by interrogating her after she had invoked her constitutional right to counsel;

3. Whether the trial court deprived her of her fundamental constitutional right of confrontation by refusing her request for a continuance in order to obtain a transcript of a witness' prior testimony.

FACTS

On July 23, 1995, at approximately 1:00 a.m., the vehicle in which Houghton was riding as a passenger was stopped by a police officer for speeding and a faulty brake light. While searching the vehicle relative to the driver's open and obvious possession of a syringe which the driver freely admitted he used to take drugs, the officer searched Houghton's purse which he found in the car. Inside the purse, the officer found two bags—a brown bag with a syringe inside containing what was later determined to be approximately .51 grams of methamphetamine and a black bag containing a syringe and a vial. The vial from the black bag was later determined to contain .27 grams of methamphetamine. The substance found in the syringe from the black bag was also determined to be methamphetamine. Witnesses for the State gave differing testimony as to the amount of methamphetamine contained in the syringe. The State's expert witness described it as a residue of an undeterminable amount; a DCI agent involved in the investigation testified that it contained.10 gram of methamphetamine.

At the scene, Houghton admitted ownership of the black bag and its contents but denied any knowledge or ownership of the brown bag and its contents. Houghton was arrested and charged with felony possession of methamphetamine in a liquid amount greater than 0.3 of a gram. The day after her arrest, July 24, 1995, Houghton was brought before the court for an initial appearance. She was advised by the court that she had the right to an attorney; that she had the right to remain silent; and that, if she chose not to exercise her right to silence, anything she said could be used against her. Houghton asserted her Sixth Amendment right to counsel by asking the court to appoint counsel to represent her in forma pauperis.

On July 25, 1995, Houghton made a written request from the Natrona County Detention Center to speak to Pat Bergen, an officer with the Casper Police Department. She received a response stating that Lieutenant Bergen had been notified and would come to see her when he could. On July 31, 1995, an order was entered appointing counsel to represent Houghton.

The day after the order appointing counsel was entered, August 1, 1995, Agent Chris Peters of the Department of Criminal Investigation interviewed Houghton. It is undisputed that Peters' interview of Houghton was unrelated to Houghton's request to speak with Bergen; Peters testified that he was not aware of the request until sometime later. According to Peters' testimony, the purpose of his interview was to obtain information about the driver of the vehicle in which Houghton was riding on the night of her arrest. In the course of the questioning by Agent Peters, Houghton allegedly made inculpatory statements concerning the methamphetamine found in her purse at the time of her arrest. After having made the statements, Houghton invoked her right to remain silent and the interview ended.

Sometime later, in response to Houghton's earlier requests to speak with him, Lieutenant Bergen met with Houghton. During their conversation, Houghton told Bergen she had spoken with Agent Peters but that he ended the interview after she invoked her right to silence. Believing that he should not be talking with her either, given her earlier assertion of her right to silence, Bergen ended the conversation. Prior to trial, on October 17, 1995, Houghton filed a motion in limine to preclude any reference during the trial to statements she made to any law enforcement officer after the appointment of counsel. She also filed a motion to suppress aimed specifically at her statements to Agent Peters in the August 1 interview. A hearing was held on the motions on November 1, 1995. In a decision letter issued November 3, 1995, the district court denied the motions, finding that Houghton had requested to communicate with law enforcement; that Peters' purpose in interviewing Houghton was not to obtain information about her but rather general information about methamphetamine and drug trafficking; that Houghton knowingly and intelligently chose to communicate with law enforcement without her attorney present; and that the knowingly and intelligently waived her right against self incrimination prior to making the statements to Peters. The case proceeded to trial on November 6, 1995, and, based on the court's ruling, Peters testified that Houghton admitted during the interview that all of the items found in her purse, including the syringe containing the larger amount of methamphetamine, belonged to her.

On the second day of trial, Houghton submitted proposed jury instructions to the court, including an instruction on the lesser-included offense of misdemeanor possession. Houghton argued that the instruction was warranted because the elements of misdemeanor possession are identical to part of the elements of felony possession and that the evidence reasonably supported a jury finding that Houghton possessed less than the 0.3 of a gram of methamphetamine required for felony possession and that she, therefore, committed the lesser offense of misdemeanor possession. The district court refused to give the instruction; its reasons for doing so, however, do not appear in the record before us. Houghton objected to the court's refusal to give the lesser-included offense instruction.

On November 7, 1995, the jury returned a verdict of guilty on the charge of possession of a controlled substance in excess of 0.3 grams. Houghton was sentenced to a term of not less than two nor more than three years in the Wyoming Women's Center with credit for time served.

STANDARD OF REVIEW

Where proper objection is made on the record, a district court's failure to give a lesser-included offense instruction is subject to a de novo standard of review. Paramo v. State, 896 P.2d 1342, 1344 (Wyo.1995). We review a district court's denial of motion to suppress under an abuse of discretion standard, which means an error of law committed by the court under the circumstances. Madrid v. State, 910 P.2d 1340, 1344 (Wyo.1996).

DISCUSSION

The Lesser-Included Offense Instruction

A lesser-included offense instruction is appropriate where: 1) all of the elements of the lesser offense are also elements of the greater offense, and 2) there is some evidence that would rationally permit a jury to find the accused guilty of the lesser offense and not guilty of the greater offense. State v. Keffer, 860 P.2d 1118, 1134 and 1136 (Wyo.1993). The failure to give a lesser-included offense instruction when such an offense exists and the evidence presented would support conviction of that offense constitutes reversible error. Paramo, 896 P.2d at 1344.

Under Wyoming's possession statute, possession of methamphetamine is a misdemeanor if the substance weighs no more than 0.3 gram; it is a felony if the substance weighs more than 0.3 gram. The State concedes that the elements of misdemeanor possession are also elements of felony possession and that misdemeanor possession is a lesser-included offense of felony possession.

We turn then to the question whether there was some evidence that would rationally permit the jury to find Houghton guilty of the lesser-included offense of misdemeanor possession and not guilty of felony possession. That is, was there some evidence from which the jury could have concluded that Houghton possessed 0.3 of a gram or less of methamphetamine? In considering this question, we are bound by the rule that only a minimal amount of...