Majors v. State

• Decision Date: 13 April 2011
• Docket Number: No. S–10–0157.,S–10–0157.
• Citation: 2011 WY 63,252 P.3d 435
• Parties: Alexis MAJORS, Appellant (Defendant),v.The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

252 P.3d 435

2011 WY 63

Alexis MAJORS, Appellant (Defendant),

v.The STATE of Wyoming, Appellee (Plaintiff).

No. S–10–0157.

Supreme Court of Wyoming.

April 13, 2011.

Representing Appellant: Diane Lozano, State Public Defender, PDP; Tina Kerin, Appellate Counsel; David E. Westling, Senior Assistant Appellate Counsel. Argument by Mr. Westling.Representing Appellee: 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. Argument by Mr. Daraie.Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.KITE, Chief Justice.

[¶ 1] Ms. Majors was convicted after a jury trial of misdemeanor possession of marijuana and felony possession of ecstasy. On appeal, she claims the district court erred when it denied her motion for a mistrial which was based upon the mid-trial discovery that the bailiff had been a member of the investigative team, admitted a recording of a drug transaction between a confidential informant and Ms. Majors' mother and denied her motion for sanctions based upon law enforcement's failure to collect as evidence a bottle which was shown in the prosecution photos. We conclude that the district court's rulings were appropriate except as to the recording. The recording was inadmissible hearsay and the district court's erroneous admission of the recording was prejudicial with respect to the ecstasy charge. Consequently, we reverse Ms. Majors' ecstasy possession conviction and affirm her marijuana possession conviction.

ISSUES

[¶ 2] Ms. Majors presents the following issues on appeal:

I. Did the trial court err 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 err by denying Ms. Major's motion for a mistrial, thereby denying her due process of law?

II. Did the trial court err by admitting a recording containing hearsay statements from a third party allegedly implicating Alexis Majors 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?

III. Did the trial court err in refusing to grant Ms. Majors' motion for sanctions against the State of Wyoming for not preserving possible exculpatory evidence and not disclosing the exist[e]nce of the same?

Although phrased differently, the State articulates the same issues.

FACTS

[¶ 3] Ms. Majors was a University of Wyoming student residing in Laramie, Wyoming at the time of the events at issue in this case. On April 30, 2009, a confidential informant purchased marijuana from Ms. Majors' mother, Danelle Smith, in a controlled buy in Worland, Wyoming. The transaction was audio recorded by the Washakie County Sheriff's Department. The confidential informant also asked Ms. Smith about obtaining some ecstasy. Ms. Smith stated that she did not have any but that “Lex” could bring some next time she came back.

[¶ 4] The sheriff's department executed a no-knock search warrant on Ms. Smith's house on May 3, 2009. When the officers entered the house, Ms. Majors was sitting on the couch near a black bag. The black bag held various drug related paraphernalia, including a glass bottle containing marijuana, a plastic “prescription” bottle containing ecstasy tablets and money used during the controlled buy from Ms. Smith on April 30th. More controlled substances were located in other areas of the house, including Ms. Smith's bedroom.

[¶ 5] The State charged Ms. Majors with one count of unlawful possession with intent to deliver marijuana and one count of unlawful possession with intent to deliver ecstasy, both in violation of Wyo. Stat. Ann. § 35–7–1031(a) (LexisNexis 2009).¹ The district court conducted a jury trial. During the second day of trial, the district court discovered that a sheriff's deputy who had helped with the search of Ms. Smith's home was acting as the trial bailiff. Ms. Majors moved for a mistrial, claiming a violation of her right to a fair trial. The district court denied her mistrial motion, but appointed a different officer to act as bailiff for the remainder of the trial. The district court also denied Ms. Majors' motion for sanctions based upon the State's failure to collect a pill bottle which was shown in the photographs of the contents of the black bag. As part of its case in chief, the State was allowed to play, over defense objection, the audio recording of the controlled buy between Ms. Smith and the confidential informant.

[¶ 6] At the conclusion of the trial, the jury acquitted Ms. Majors of the delivery charges but convicted her of the lesser included charges of possession. The marijuana possession charge was a misdemeanor, but the ecstasy possession charge was a felony. Ms. Majors appealed.

DISCUSSION

A. Bailiff as Witness

[¶ 7] Deputy Al Nelson was involved in the search of Ms. Smith's home as the K–9 (drug dog) handler. He apparently was not initially listed as a witness for either the State or the defendant. At the beginning of the trial, the district court appointed Deputy Nelson as the trial bailiff. As part of his duties, he gathered the jury notebooks, conducted the jury back and forth between the courtroom and the jury room during breaks, etc.

[¶ 8] During the second day of trial, one of the other investigating officers mentioned that Deputy Nelson and his drug dog were involved in the search of Ms. Smith's residence. The district court judge called the attorneys into chambers, but those proceedings were not reported. Upon returning to the courtroom, the district court told the jury:

For the record, we took a break. The Court became cognizant of the fact that ... our Bailiff is the drug dog guy, okay. So I need to replace the Bailiff for the remainder of the trial.

[¶ 9] After another break, defense counsel moved for a mistrial because the bailiff participated in the search and was a potential witness. When asked if the defense intended to call Deputy Nelson as a witness, defense counsel stated that it may be necessary because the primary investigating officer could not testify as to whether the dog alerted on the black bag or Ms. Majors' other property. The district court denied the mistrial motion, stating that counsel should have known about Deputy Nelson's involvement from the police reports. The judge stated that he would simply replace the bailiff.

[¶ 10] Defense counsel called Deputy Nelson as a witness. He testified that he participated in the search of Ms. Smith's residence on May 3, 2009, stating he “deployed [his] K–9 for a K–9 sniff of that residence.” On direct examination, Deputy Nelson testified that the dog alerted to a bedroom dresser and the black bag. He further stated that the dog did not alert to anything else in the residence, including any backpacks, suitcases or luggage, or to any of the vehicles at the residence.

[¶ 11] Ms. Majors claims the district court erred by denying her mistrial motion. We review a district court's denial of a motion for a mistrial by applying the abuse of discretion standard. Thomas v. State, 2006 WY 34, ¶ 10, 131 P.3d 348, 352 (Wyo.2006). A district court “abuses its discretion when it could not have reasonably concluded as it did.” Id., citing Gunnett v. State, 2005 WY 8, ¶ 15, 104 P.3d 775, 779 (Wyo.2005).

[¶ 12] Advancing her argument that the district court should have granted her motion for a mistrial, Ms. Majors cites to two primary cases— Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965) and Romo v. State, 500 P.2d 678 (Wyo.1972). In Turner, the United States Supreme Court reversed the defendant's capital conviction, concluding he was denied the right to a fair trial by an impartial jury because the trial court placed two sheriff's deputies, who were also the key prosecution witnesses, in charge of the jury during the trial. The deputies had freely mingled and conversed with the jury while the jury was sequestered during the trial. Id. at 467–68, 85 S.Ct. at 547. The Supreme Court stated:

In the constitutional sense, trial by jury in a criminal case necessarily implies at the very least that the “evidence developed” against a defendant shall come from the witness stand in a public courtroom where there is full judicial protection of the defendant's right of confrontation, of cross-examination, and of counsel. What happened in this case operated to subvert these basic guarantees of trial by jury. It is to be emphasized that the testimony of [the two deputies] was not confined to some uncontroverted or merely formal aspect of the case for the prosecution. On the contrary, the credibility which the jury attached to the testimony of these two key witnesses must inevitably have determined whether Wayne Turner was to be sent to his death. To be sure, their credibility was assailed by Turner's counsel through cross-examination in open court. But the potentialities of what went on outside the courtroom during the three days of the trial may well have made these courtroom proceedings little more than a hollow formality.

It is true that at the time they testified in open court [the deputies] told the trial judge that they had not talked to the jurors about the case itself. But there is nothing to show what the two deputies discussed in their conversations with the jurors thereafter. And even if it could be assumed that the deputies never did discuss the case directly with any members of the jury, it would be blinking reality not to recognize the extreme prejudice inherent in this continual association throughout the trial between the jurors and these two key witnesses for the prosecution. We deal here not with a brief encounter, but with a continuous and intimate association throughout a three-day trial....

Id. at 472–73, 85 S.Ct. at 550 (footnotes and citations omitted). See also, ...