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Mark J. Garner v. the State of Wyoming

November 16, 2011

MARK J. GARNER, APPELLANT (DEFENDANT),
v.
THE STATE OF WYOMING, APPELLEE (PLAINTIFF).



Appeal from the District Court of Uinta County The Honorable Dennis L. Sanderson, Judge

The opinion of the court was delivered by: Burke, 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 any typographical or other formal errors so that correction may be made before final publication in the permanent volume.

[¶1] Appellant, Mark J. Garner, challenges his convictions on two counts of delivery of a controlled substance, in violation of Wyo. Stat. Ann. § 35-7-1031(a)(i).*fn1 He contends the district court improperly limited cross-examination of a key prosecution witness, and that the evidence was insufficient to support his convictions. We affirm.

ISSUES

[¶2] Appellant presents the following issues:

1. Did the trial court err in admonishing defense counsel, limiting his cross-examination and issuing a limiting instruction to the jury, when in fact defense counsel was properly testing the credibility of the confidential informant, HB?

2. Was there insufficient evidence to sustain the convictions of Appellant?

FACTS

[¶3] In July of 2010, Appellant was arrested for selling methamphetamine to a confidential informant in two "controlled buy" operations initiated by the Wyoming Division of Criminal Investigation (DCI).*fn2 The arrest resulted in large part from information obtained by a confidential informant, HB. HB purchased methamphetamine from Appellant on two occasions in June of 2009. In the first instance, DCI agents fitted HB with a wireless transmitter, provided her with $60 in controlled buy funds, and kept her under constant surveillance as she proceeded to purchase methamphetamine from Appellant at the home of Appellant's girlfriend, Rachelle Earley. In the second instance, DCI agents again fitted HB with a wireless transmitter, provided her with $200 in controlled buy funds, and kept her under surveillance as she purchased methamphetamine from Appellant at a truck stop. In return for HB's service as a confidential informant, the State agreed to recommend a deferred prosecution under Wyo. Stat. Ann. § 7-13-301 in relation to criminal charges against HB stemming from an alleged delivery of marijuana.

[¶4] Appellant was charged with two counts of delivery of methamphetamine and one count of conspiracy to deliver methamphetamine. Ms. Earley was also charged with conspiracy and as an accessory to delivery of methamphetamine. The two cases were consolidated for trial.

[¶5] At trial, just before opening statements, the court held a hearing outside the presence of the jury.*fn3 During this hearing, defense counsel indicated his intent to cross-examine HB about her plea agreement under Wyo. Stat. Ann. § 7-13-301. Counsel stated that "What I would want to talk about is the original charges [sic] that she was facing, the timing of those charges related to when she entered into a plea agreement[,] and when she cooperated here with D.C.I." The court summarized the argument by asking counsel, "So, essentially, what you're saying is what she's doing here is part of a deal she got to get a 7-13-301?" Counsel responded "That is correct, your Honor." The court determined that defense counsel could inquire into HB's agreement with the State because it demonstrated potential bias.

[¶6] During cross-examination of HB, defense counsel inquired about HB's arrest for delivery of marijuana and the resulting criminal charges. When counsel asked about the circumstances surrounding the alleged delivery, the prosecutor objected, and the following exchange occurred:

THE COURT: That's sustained. I don't understand what that is. She's admitted she has done that, so we're over.

DEFENSE COUNSEL: I had one more question. I was just trying to make sure the foundation was there, but I would stop there if you would like me to.

THE COURT: Well, I guess I don't see it, but if you want to make a proffer, I'll let you do it. This is beyond what we've talked about before. But if you've got a point that I don't get or is important, in fairness, I'll let you get -- you know, have some means of getting to it. If you've got just one more question, I'll let you do that.

DEFENSE COUNSEL: I appreciate that, your Honor.

Q: [HB], is it true that you had your 16-year-old son helping you sell marijuana?

A: That is true.

THE COURT: The objection is sustained. Go ...


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