Appeal from the District Court of Sweetwater County The Honorable Nena R. James, 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 found Gloria Lynn Landeroz guilty of aggravated assault and battery. The jury found her not guilty of attempted first degree murder, not guilty of the lesser included offense of attempted second degree murder, and not guilty of conspiracy to commit first degree murder. The jury was unable to reach a verdict on the lesser included offense of attempted manslaughter. After the jury's verdict and the sentencing hearing, the State moved for dismissal of the attempted first degree murder charge without prejudice. The district court granted the motion.
[¶2] Ms. Landeroz appealed to this Court claiming the district court erred in dismissing the attempted first degree murder charge without prejudice because in doing so it exposed her to double jeopardy. She also asserts her due process rights were violated when the State failed to disclose that a key witness against her had an agreement with the State for favorable treatment in return for his testimony. We find no due process violation and affirm the judgment on the jury verdict. However, we remand for entry of an order clarifying that the dismissal of the attempted first degree murder charge is "with prejudice" as to that offense, but "without prejudice" as to the lesser included offense of attempted manslaughter.
[¶3] We rephrase the issues Ms. Landeroz presents for this Court's determination as follows:
I. Whether the district court violated her constitutional right not to be twice placed in jeopardy for the same offense when it dismissed the first degree murder charge without prejudice after the jury acquitted her on that charge.
II. Whether the State violated her right to due process when it failed to disclose evidence that a key witness against her had an agreement with the State to testify in exchange for favorable treatment on the charges against him.
The State contends the district court properly dismissed the attempted first degree murder charge without prejudice after the jury was unable to reach a verdict on the lesser included offense of attempted voluntary manslaughter. The State also contends Ms. Landeroz's due process rights were not violated because she had an adequate opportunity to cross examine the witness in question.
[¶4] On May 17, 2009, at approximately 2:40 a.m., Rock Springs, Wyoming police officers received a report that gun shots had been fired at a trailer park in Rock Springs. Officer William Erspamer arrived at the location and noticed two trucks with broken glass and damaged paint parked in front of a trailer. Several people were standing on the porch of the trailer. The officer spoke to Jose Villegas, who said he had been awakened by the sound of breaking glass, looked outside his trailer and saw several people breaking the glass out of trucks parked outside. Mr. Villegas ran to the door and started to open it when the window in the door shattered. Outside he saw three men. They ran and he chased them. The men got into three vehicles that were parked down the street. Mr. Villegas turned to run back to the trailer court and the vehicles chased after him. He jumped behind a concrete block in order to avoid being hit by one of the vehicles, a white Lincoln Navigator. He saw the driver's face and heard him yell, "Let's get this m... f...!" Mr. Villegas saw the doors of the three vehicles open and he began to run again, as the men chased him on foot. He crossed the street to run to the trailer and saw that the white Lincoln Navigator had returned to the trailer park and was waiting for him. The white Lincoln Navigator accelerated and someone inside the vehicle fired a gun at him. He made it inside the trailer without being hit.
[¶5] Police officers spoke with others at the scene who generally confirmed Mr. Villegas's statements. Officer Erspamer found two empty .40 caliber Smith & Wesson pistol casings in the road approximately fifty feet from Mr. Villegas's home, two bullets in the west wall of the home and two 9mm bullets lodged in the living room furniture inside the home.
[¶6] Officer Steve Van Valkenburg was on duty that night and was advised to watch for the white Lincoln Navigator that had been involved in the shooting. He spotted the vehicle, ran a check on the registration and learned that it was registered to a Mr. Valdez. Officer Erspamer advised Officer Van Valkenburg that Valdez was the name of an individual believed to have been involved in the shooting and to stop the vehicle. Officer Van Valkenburg made the stop and ordered the occupants out of the vehicle. Joe Valdez was seated in the driver's seat, Ms. Landeroz was in the front passenger seat and Maximillian Furman was in the rear seat. They were taken to the Rock Springs police department for questioning. Detectives found a 9mm shell casing in Mr. Furman's pocket and a small metal pipe in Ms. Landeroz's purse which tested positive for marijuana residue. During questioning, Mr. Furman stated that as the white Lincoln Navigator approached the trailer the second time, Ms. Landeroz was hollering for them to shoot Mr. Villegas, grabbed the .40 caliber pistol, aimed it out the window and started shooting.
[¶7] Ms. Landeroz was charged with attempted first degree murder in violation of Wyo. Stat. Ann. § 6-1-301(a)(i) and § 6-2-101(a) (LexisNexis 2011), aggravated assault and battery in violation of § 6-2-502(a)(iii) (LexisNexis 2011) and misdemeanor possession of marijuana in violation of § 35-7-1031(c)(i)(A) (LexisNexis 2009). The State later amended the information to charge Ms. Landeroz with the additional count of conspiracy to commit first degree murder in violation of § 6-1-303(a) (LexisNexis 2011).*fn1 Just before trial, the State orally moved to dismiss the misdemeanor possession charge, which motion the district court also granted. The case proceeded to trial on the attempted first degree murder, conspiracy to commit first degree murder and aggravated assault and battery charges.
[¶8] During the trial, defense counsel moved for a mistrial on the ground that the State had failed to disclose a proffer Mr. Furman had made in exchange for the State's agreement to take his cooperation into account in making any offer to settle the charges filed against him for his involvement in the shooting. The district court denied the motion and the trial continued. At the close of the evidence, defense counsel renewed the motion for mistrial and the district court again denied it.
[¶9] During the jury instruction conference, the State asked the district court to instruct the jury on the lesser included offenses to attempted first degree murder, i.e. attempted second degree murder and attempted manslaughter. The district court gave the requested instructions. After deliberating, the jury found Ms. Landeroz not guilty of attempted first degree murder, attempted second degree murder and conspiracy to commit first degree murder, ...