Appeal from the District Court of Sheridan County The Honorable John G. Fenn, 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] William Arthur Bruyette was charged with felony possession of marijuana. At trial, he sought to introduce evidence that he obtained the marijuana in California with a prescription for medical marijuana. The district court granted the State's in limine motion to exclude evidence relating to a medical marijuana defense and instructed the jury that possession of medical marijuana was not a defense to the crime charged. The jury convicted Mr. Bruyette of felony possession of marijuana. Mr. Bruyette appeals, claiming the district court denied him his constitutional right to present his defense.
[¶2] Mr. Bruyette presents the following issue for this Court's determination:
Whether he was denied his right to present a defense to the jury guaranteed by Art. 1, § 10 of the Wyoming Constitution and the United States Constitution.*fn1
[¶3] On December 17, 2009, police officers arrested Mr. Bruyette in Sheridan County, Wyoming for felony possession of marijuana in violation of Wyo. Stat. Ann. § 35-7-1031(c)(iii) (LexisNexis 2009).*fn2 He informed the officers at the time that he had obtained the marijuana in California with a medical prescription card.
[¶4] Prior to trial, the State filed a motion in limine asking the district court to prohibit Mr. Bruyette from presenting a defense or evidence related to his possible right under California law to possess and use marijuana for medical reasons. After a hearing, the district court conditionally granted the motion, but gave Mr. Bruyette several days to produce a prescription or other document showing that a physician had advised him to use marijuana for medical reasons. Several days later, defense counsel provided notice that Mr. Bruyette had not obtained a prescription for medical marijuana that could be introduced pursuant to § 35-7-1031(c).
[¶5] The State then filed a second motion in limine, asking the district court to prohibit any reference during trial to medical marijuana or the use of marijuana for medical purposes. At a hearing before jury selection on the first day of trial, defense counsel responded to the State's motion by stating he would not be presenting an affirmative defense involving medical marijuana. The district court granted the State's motion, stating that the parties were barred from making "any reference to medical marijuana, prescription or physician or doctor recommendation or justification for the marijuana, as well as therapeutic or medicinal treatment or value for the marijuana."
[¶6] During the trial, the district court mentioned to the parties that defense counsel had submitted a jury instruction addressing medical marijuana and it did not intend to give the instruction. After presentation of the State's case, Mr. Bruyette elected to testify in his own defense. During direct examination, in response to defense counsel's question, "Did [the police] ask you about marijuana?" Mr. Bruyette testified, "He [the officer] mentioned that my daughter had said that I had a medical marijuana card from California." The State objected to the testimony as violating the district court's pre-trial order. The State asked the court to strike the testimony and give a curative instruction advising the jury that the possession of a medical marijuana card was not a defense to the charge of possessing marijuana. Defense counsel responded that he had not expected the testimony, he had gone over the court's order with Mr. Bruyette and he had no objection to the court striking the testimony. The district court admonished Mr. Bruyette not to make any further reference to medical marijuana or a card in front of the jury but offered him the opportunity to make an offer of proof. Defense counsel declined. The district court then told the jury that Mr. Bruyette's testimony concerning medical marijuana was stricken and was not to be considered and that his possession of a medical marijuana card was not a defense to the charge of unlawfully possessing marijuana.
[¶7] During the instruction conference, defense counsel offered an instruction stating that a valid prescription for medical marijuana was a defense under § 35-7-1031(c). The district court declined to give the instruction on the ground that no evidence was presented that a valid prescription existed, the defense had given notice that there was no prescription and a medical marijuana card did not constitute a prescription. The district court also advised that the curative instruction given during trial would not be repeated when the other instructions were read and the State was not to reference the curative instruction during closing argument because the testimony concerning a medical marijuana card had been stricken and any further reference to that testimony would violate the in limine order.
[¶8] After the district court read the jury instructions, the jury deliberated for twenty minutes and returned a verdict of guilty. The district court imposed a sentence of eighteen to thirty months incarceration, suspended the sentence and ordered Mr. Bruyette to serve a split sentence of 121 days in the county ...