408 P.3d 771
Wyo.2018Background
- In early 2016 Pauline Hemicker distributed methamphetamine in Casper and began obtaining larger quantities from a Colorado source; she used lower-level distributors including Mikey Ross and, later, Corey Garriott.
- Hemicker supplied Garriott on multiple occasions; Garriott sold and fronted methamphetamine to others (Angela Danielson, John Fry) and arranged meetings and a Cheyenne run to obtain drugs.
- Law enforcement intercepted packages containing large quantities of methamphetamine after Hemicker and Garriott returned from Cheyenne; DCI investigated using a cooperating informant (Fry).
- Garriott was charged with one count of conspiracy to deliver methamphetamine; the first trial ended in a mistrial after a witness improperly testified they met Garriott in prison; the prosecutor represented the statement was against instruction.
- At the retrial (after Garriott elected to proceed pro se), the jury convicted Garriott; he was sentenced to 5–7 years and appealed, raising evidentiary, double jeopardy, and opinion-of-guilt claims.
Issues
| Issue | Plaintiff's Argument (Garriott) | Defendant's Argument (State) | Held |
|---|---|---|---|
| 1. Admission of Agent Reinhart overview/expert testimony | Reinhart’s testimony was improper overview testimony that vouched for witnesses and previewed the State’s case | Testimony was permissible expert/background evidence about drug organizations and terminology, helpful to jury | Court: No abuse of discretion or plain error; testimony was admissible expert/background evidence |
| 2. Admission of testimony about portions of conspiracy predating Garriott | Testimony about Hemicker’s earlier activities was irrelevant and unfairly prejudicial because Garriott wasn’t involved then | Such evidence was part of the course of conduct and admissible to show the conspiracy’s scope and venue; joining an ongoing conspiracy can make a later joiner responsible for prior acts in furtherance | Court: No plain error; prior acts were relevant and not unfairly prejudicial |
| 3. Admission of co-conspirators’ personal histories/addictions | Testimony about addiction and criminal histories was irrelevant and appealed to juror emotion under W.R.E. 403 | Testimony explained how witnesses became involved; probative and not used to inflame jury | Court: No plain error; testimony was relevant and its prejudicial potential was not realized |
| 4. Double jeopardy dismissal after mistrial caused by prosecutor/witness | Retrial barred because prosecutor elicited prejudicial prison testimony that forced mistrial | Retrial permitted unless prosecution intentionally goaded defendant into asking for mistrial; prosecutor had instructed witness not to discuss prison and did not intentionally elicit the testimony | Court: Court’s factual finding that State did not intentionally goad was not clearly erroneous; denial of dismissal affirmed |
| 5. Opinion testimony by Officer Nash that Garriott committed conspiracy | Nash’s statement that Garriott was a drug dealer and that changing tires with knowledge of a drug run constituted conspiracy invaded the jury’s province | Garriott himself solicited opinion testimony and thus opened the door; any further opinion was within scope of that opening | Court: No plain error; Garriott opened the door by eliciting the agent’s opinion |
Key Cases Cited
- United States v. Brooks, 736 F.3d 921 (10th Cir. 2013) (discusses limits and uses of overview testimony)
- Cureton v. State, 2007 WY 168 (Wyo. 2007) (officer expert testimony on drug-trafficking indicators admissible to aid jury)
- Ekholm v. State, 2004 WY 159 (Wyo. 2004) (a defendant who joins an ongoing conspiracy may be accountable for prior acts in furtherance of that conspiracy)
- Arizona v. Washington, 434 U.S. 497 (1978) (retrial is barred only where prosecution’s conduct goaded defendant into moving for mistrial)
- Oregon v. Kennedy, 456 U.S. 667 (1982) (prosecution must have intended to provoke mistrial to bar retrial)
- Pinkerton v. United States, 328 U.S. 640 (1946) (co-conspirators are responsible for acts in furtherance of conspiracy)
- United States v. Hamilton, 587 F.3d 1199 (10th Cir. 2009) (joining an ongoing conspiracy and attribution of prior acts)