Appeal from the District Court of Washakie County The Honorable Robert E. Skar, 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] 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.
[¶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.
[¶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).*fn1 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.
[¶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 ...