Appeal from the District Court of Uinta County The Honorable Dennis L. Sanderson, Judge
The opinion of the court was delivered by: Hill, Justice.
Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Leda M. Pojman, Senior Assistant Attorney General. Argument by Ms. Pojman.
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 any typographical or other formal errors so that correction may be made before final publication in the permanent volume.
[¶1] Appellant, Dana L. Graham (Graham), challenges the district court's Judgment and Sentence finding her guilty of delivery of methamphetamine (second or subsequent offense). Wyo. Stat. Ann. §§ 35-7-1031(a)(i) and 35-7-1038 (LexisNexis 2009). She maintains that the district court abused its discretion by denying the State's motion to dismiss the charges against her (without prejudice to refile them). She also contends that the district court erred in excluding the testimony of an eye witness to her crime, on the basis that the district court was concerned that the witness might exercise his right not to incriminate himself (Fifth Amendment protections) and, thereby, deflect the jury's attention from Graham's criminal act. We will affirm.
[¶2] Graham raises these issues:
1. Did the court abuse its discretion in denying the State's motion to dismiss without prejudice, in violation of the separation of powers doctrine?
2. Did the trial court err when it excluded Ms. Graham's witness in violation of her Sixth Amendment rights without sufficient showing of the extent the witness would exercise his Fifth Amendment rights?
The State's rephrasing of the issues essentially echoes that posited by Graham.
[¶3] Evanston area police officers suspected Graham of dealing in drugs. The investigators decided to use a confidential informant to make a buy from her. In the briefs, the name of the confidential informant is not revealed. However, in the record on appeal his name, Terry Christiansen (Christiansen), is used frequently, and it will help to keep the narrative of this case on track to use it. He had been recruited from the Uinta County Detention Center where he was spending time for "some drug crimes" to make a controlled buy of methamphetamine from Graham.
[¶4] On June 29, 2009, Christiansen was given $350.00 in cash by two drug enforcement officers to facilitate the purchase of an "eightball" (1/8 ounce) of methamphetamine -- the going street price in Evanston. A photocopy of that currency was introduced as evidence in the case. The currency was never recovered, or otherwise traced to Graham, because she was not arrested until many months later. Prior to sending Christiansen out to make the buy, he was outfitted with a recording device so anyconversation he had with Graham could be recorded. In addition, he was informed that he would be searched to make sure he did not have any large sums of currency or drugs on his person or in his vehicle. Christiansen owned up to having some "personal use" crystal methamphetamine in his pickup. Those drugs were virtually identical to the drugs he bought from Graham. The police officer described it as a "very small amount," but its exact weight is not revealed in this record. That matter is still an open, pending criminal case in Uinta County.
[¶5] Christiansen's pickup was searched by one officer and Christiansen himself was searched by the other. Each of the searches took only a few minutes and did not involve removal of Christiansen's clothing ...