Appeal from the District Court of Campbell County The Honorable Dan R. Price II, Judge
The opinion of the court was delivered by: Kite, Chief Justice.
Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of typographical or other formal errors so correction may be made before final publication in the permanent volume.
[¶1] A jury convicted Krystal Dawn Nelson of delivering cocaine. She appeals, claiming error in the district court's refusal to give an entrapment instruction and the prosecutor's failure to give notice of intent to use W.R.E. 404(b) evidence. We reverse.
[¶2] Ms. Nelson states the issues for this Court's determination as follows:
I. Did the trial court err in refusing to give an entrapment instruction?
II. Did the prosecutor use W.R.E. 404(b) evidence without notice to defense counsel?
The State asserts the district court properly refused to give an entrapment instruction and it was not reversible error under the circumstances for the prosecutor to introduce W.R.E. 404(b) evidence at trial.
[¶3] In May of 2008, after spending thirty days in jail in Campbell County, Wyoming on charges of felony distribution of cocaine, a twenty year old individual (informant) accepted an offer to assist the Wyoming Division of Criminal Investigation (DCI) with drug investigations. Pursuant to the agreement, the informant was to assist DCI by contacting people from whom he thought he could obtain controlled substances and arranging recorded buys. In exchange, DCI agreed to recommend reduction of his felony charge to a misdemeanor. The informant provided Deputy Robert Proffitt with a list of individuals from whom he thought he could obtain drugs. Ms. Nelson's name was one of those on the list. The informant had known Ms. Nelson casually in junior and senior high school and had worked with her a couple of times more recently at Papa John's Pizza.
[¶4] Under the direction of Deputy Proffitt, the informant began contacting individuals on the list. In July of 2008, he told Deputy Proffitt that he had been talking with Ms. Nelson about purchasing cocaine. Deputy Proffitt arranged to monitor and record a telephone call from the informant to Ms. Nelson. During the telephone conversation, Ms. Nelson told the informant she could get him drugs but was at work and would call him when she returned from delivering a pizza. The informant later received a call from Ms. Nelson stating that she was back at Papa John's. The informant said he would get the money and meet her there.
[¶5] Deputy Proffitt placed a wire on the informant and gave him $100. He followed the informant as he drove to Papa John's and watched from a nearby location as the informant handed Ms. Nelson the money and she handed something back to him. After the exchange, the informant met Deputy Proffitt back at the DCI office. He gave the deputy a plastic bag containing white powder. Deputy Proffitt placed the bag on a scale; it weighed 1 gram. Upon subsequent testing, the powder was identified as cocaine.
[¶6] For reasons that do not appear in the record, a warrant for Ms. Nelson's arrest was not issued until May 29, 2009, ten months later. At that time, she was arrested and charged with one count of delivering cocaine in violation of Wyo. Stat. Ann. § 35-7-1031(a)(i) (LexisNexis 2009). Prior to trial, Ms. Nelson served the prosecution with a motion pursuant to W.R.E. 404(b) for disclosure of any evidence of other misconduct it intended to introduce at trial. The prosecution did not respond to the motion. Also prior to trial, Ms. Nelson asked the district court to instruct the jury concerning the entrapment defense. After the pretrial conference but before the trial, the district court advised counsel that it had concluded the entrapment defense was not relevant and it would not give the instruction.
[¶7] At trial, during the prosecution's questioning, Deputy Proffitt testified that Ms. Nelson had told him at the time of her arrest that she had sold cocaine to the informant "either once or twice in July." Defense counsel objected on the grounds that the prosecution had not given notice that it intended to introduce evidence of other misconduct. The district court overruled the objection. During cross-examination of Ms. Nelson, the prosecution also inquired about her involvement with drugs prior to the July 2008 delivery to the informant. The district court again overruled defense counsel's objection and allowed the testimony.
[¶8] After the close of the evidence, defense counsel renewed his request for an entrapment instruction. The district court declined to give the instruction, concluding the evidence presented did not support a contention that law enforcement improperly induced Ms. Nelson to act illegally. The jury found Ms. Nelson guilty of delivering cocaine. The district court sentenced her to a term of three to five years in prison, suspended the sentence and imposed five years probation. Ms. Nelson timely appealed from the judgment and sentence.
1. Entrapment Instruction
[¶9] Ms. Nelson contends the district court erred in refusing to give the jury an instruction on her defense theory that she was entrapped into delivering cocaine to DCI's informant. After she submitted her proposed entrapment instruction, the district court during the pretrial conference asked the prosecutor what his position was regarding the instruction. The prosecutor responded that the instruction appeared to be a standard pattern jury instruction on the entrapment defense but it should not be given to the jury in this case unless there was evidence at trial of overreaching on the part of law enforcement. He asserted there was no such evidence. The district court indicated it would look into the matter.
[¶10] The next day, the district court sent a letter to counsel stating that it had reviewed the probable cause statement and Wyoming precedent and had concluded the entrapment defense was not relevant in Ms. Nelson's case. The court quoted Swartz v. State, 971
P.2d 137, 140 (Wyo. 1998), for the holding that the entrapment defense requires proof of government inducement of the crime and a lack of predisposition on the part of the defendant engaged in the criminal conduct. The district court stated:
The evidence does not support a contention that the police induced [Ms. Nelson] into the illegal action, and as such I will not include a jury instruction related to the defense of entrapment.
[¶11] Defense counsel responded to the district court's letter with his own letter stating:
I assume that this is a decision not to include an entrapment instruction in the package of jury instructions to be prepared in advance of trial and that it is not intended as a final decision to disallow an entrapment instruction after the close of evidence at the time of trial. I recognize that an entrapment instruction would be premature at this point, but I fully expect that there will be substantial evidence produced in support of an entrapment defense during the course of the trial.
Defense counsel asked the district court to let him know if his assumption was incorrect.
[¶12] Nothing further appears in the record concerning the entrapment instruction until after the parties had presented their evidence at trial and the district court met with counsel to finalize the jury instructions. At that time, defense counsel renewed his request for the entrapment instruction. The district court, relying on Swartz, 971 P.2d 137, declined to give the instruction on the ground that no competent evidence of improper inducement by law enforcement had been presented.
[¶13] Ms. Nelson contends the entrapment instruction should have been given because it was her theory of defense and competent evidence was presented to support it. The failure to give an instruction on the law related to a theory of defense is a due process issue, which this Court reviews de novo. Ewing v. State, 2007 WY 78, ¶ 7, 157 P.3d 943, 946 (Wyo. 2007).
[¶14] The law in Wyoming is well settled with respect to instructing a jury on a defendant's theory of the case.
Due process requires the trial court to give a correct instruction to the jury that details the defendant's theory of the case. Blakely v. State, 474 P.2d 127, 129 (Wyo. 1970). The instruction must sufficiently inform the court of the defendant's theory and must be supported by competent evidence. Bouwkamp v. State, 833 P.2d 486, 490 (Wyo. 1992). A theory of the case is more than a comment on the evidence that tells the jury how to consider the evidence. Ellifritz v. State, 704 P.2d 1300 (Wyo.1985). Fundamentally, the instruction must in the first instance be a proper theory of the case, or theory of defense, instruction. That is, the offered instruction must present a defense recognized by statute or case law in this jurisdiction. Bouwkamp, 833 P.2d at 490. . . . .
Any competent evidence is sufficient to establish a defense theory even if it consists only of testimony of the defendant. Best v. State, 736 P.2d 739, 745 (Wyo. 1987). We view the evidence in a light favorable to the accused and the accused's testimony must be taken as entirely true to determine if the evidence is competent. Duckett v. State, 966 P.2d 941, 944 (Wyo. 1998). Even if the court deems the evidence to be weak, or unworthy of belief, ...