Wyoming Supreme Court

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By Jim Angell, Cowboy State Daily

A former tribal judge for the Wind River Indian Reservation has been disbarred from practicing law by the Wyoming Supreme Court after pleading guilty to drug distribution charges.

The court on Wednesday disbarred Terri Virginia Smith, following the recommendation of the state’s Board of Professional Responsibility, which serves as the hearing body for disciplinary actions involving attorneys.

Smith served as the judge for the Wind River Tribal Court from 2017 until May 2019. While serving as the judge in March 2019, she was the subject of a federal indictment that alleged she conspired to deliver Oxycodone and engaged in the distribution of cocaine, both felonies.

An investigation by a federal probation officer said there was no evidence that Smith used her position as a judge to “facilitate the commission or concealment of the offense.”

Smith stepped down as the tribal judge and stopped practicing law in May 2019 and pleaded guilty to the charges in August 2019.

She was sentenced in October 2020 to six months in prison and six months of home confinement, to be followed by three years of supervised release.

The BPR’s report on Smith’s disbarment noted that her sentence was “a significant downward departure” from federal sentencing guidelines due to her cooperation with law enforcement investigators and her willingness to undergo treatment for substance abuse.

Smith’s cooperation was “critical” to securing other drug charges and arrests, the BPR’s report said, calling her decision to work with authorities a mitigating factor in her sentencing and the BPR’s own disciplinary hearing.

“The many persons who face charges or have been convicted as a result of (Smith’s) cooperation and assistance to the government have friends and families all over the reservation,” the report said. “Families are inter-related. Loyalties run deep. The parties agree that (Smith’s) cooperation with prosecutors in the face of such a threat merits consideration as a mitigating factor in this disciplinary hearing as it did in her criminal sentencing.”

Under Wyoming law, Smith can seek reinstatement to practice law five years after her official disbarment date, which was set as May 24, 2019.

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By Jim Angell, Cowboy State Daily

A man convicted of killing his brother lost his appeal to the Wyoming Supreme Court on Wednesday as justices agreed statements he made to arresting officers and to investigators should not be suppressed.

The unanimous court upheld the conviction of Maxwell Schwartz, who was convicted of second-degree murder and aggravated assault in the death of his brother Joseph in Douglas in October 2018.

According to the ruling written by Justice Kate Fox, Schwartz was arrested after police officers were called to a home in response to a shooting. There, they found the body of Joseph Schwartz on the floor of the home’s kitchen.

Maxwell Schwartz was also in the kitchen and police asked him if he had shot his brother and he responded that his brother had shot himself.

Schwartz was then taken to a hospital because officers were concerned about his well being. After he was released and taken to the Converse County Jail, he was advised of his rights not to speak to officers.

The ruling said Schwartz at first refused to speak to officers, but later waived his rights not to speak and discussed the incident with agents from the state Division of Criminal Investigation.

Schwartz asked the district court in his trial to keep the comments he made to arresting officers from being used as evidence in his trial, saying he had not been advised of his rights not to speak to officers at the time.

But the state district court ruled the officers in the arrest only asked questions necessary to make sure they were safe “because the scene was chaotic, the officers did not know who was in the house or where they were and Max was on the floor with a dead body.”

Such questions are allowed to ensure safety, the district court ruled.

The justices affirmed the district court’s decision, saying the questions were reasonable to assure public safety.

“The situation here developed very rapidly,” the ruling said. “In the three minutes it took (officers) to get from the station to the door of the house, the call evolved from an unspecified medical emergency, to a stabbing, to a shooting. When (officers) arrived, the scene was chaotic and (they) did not know what had happened, who was there, where the weapon was, or if there was continuing danger to the public or people in the home …”

Schwartz also asked the district court to suppress the statements he gave to DCI agents, saying he didn’t remember the interview because he was under the influence of methamphetamine, which meant his statements were not made voluntarily.

However, justices rejected the argument, saying recordings clearly showed that Schwartz was advised of his rights not to speak to officers twice.

“Intoxication, without more, does not render a statement involuntary,” the ruling said. 

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By Jim Angell, Cowboy State Daily

The conviction of a man who was arrested in 2019 with more than 120 pounds of marijuana in the car he was driving was upheld Tuesday by Wyoming’s Supreme Court.

Justices rejected the appeal of Bradley Elmore, who said evidence seized from the vehicle he driving when he was arrested should be suppressed because he should not have been stopped for straying over the center line on Interstate 80 near Laramie.

According to the ruling, Elmore was stopped in July 2019 while driving east on the interstate after Wyoming Highway Patrol Trooper Aaron Kirlin saw the car Elmore was driving cross the center line twice.

After Elmore was stopped, Kirlin used the drug detection dog he was traveling with to search for controlled substances in the car.

The car was searched when the dog “alerted” to the presence of a controlled substance and a subsequent search revealed nine duffel bags in the car containing about 127 pounds of marijuana.

During his trial, Elmore’s attorneys argued evidence seized from the car should not have been presented in court because he was improperly stopped for crossing the interstate’s center line. The district court rejected the argument.

Elmore entered a conditional plea of guilty to a charge of possession of a controlled substance, pending the outcome of his appeal.

In his appeal, Elmore argued the traffic stop was a violation of constitutional guarantees against unreasonable searches and seizures, saying crossing over the center line should not have led to a reasonable suspicion his vehicle should be stopped. He also argued that in one instance, he was preparing to pass a semi-truck when he crossed the center line.

Elmore also said state laws did not require him to maintain a “perfect vector” in his lane and the his deviations were minor and did not endanger others.

But justices pointed to past rulings in agreeing with the district court that the traffic stop was justified because crossing the center lane is a violation of state law.

“Our … review of the ultimate determination regarding the constitutionality of the initial stop in this case leads us to conclude that Trooper Kirlin’s actions did not violate (the constitution),” said the opinion, written by Chief Justice Michael Davis. “Trooper Kirlin’s testimony, along with … dash camera footage, supports the district court’s legal conclusion that reasonable suspicion supported the initial stop based on its findings of fact.”

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By Jim Angell, Cowboy State Daily

A man who was required to register as a sex offender because of a change in state law must continue to register even though his conviction occurred more than 25 years ago, Wyoming’s Supreme Court has ruled.

The court upheld a lower court’s decision to require Jeffrey Earl Harrison to register as a sex offender until 2034.

According to the ruling, written by Justice Kate Fox, Harrison was convicted in 1994 of fourth-degree sexual assault, a crime which in 1997 was reclassified to third-degree sexual assault, which is defined as “sexual contact” without sex taking place.

At the time of his conviction, Harrison was not required to register as a sex offender because the victim was over 16. However, state law changed in 2007 to require registration by those convicted of third-degree sexual assault regardless of the age of the victim.

Once Harrison learned of the change in 2009, he began to register as a sex offender. In 2019, 25 years after his conviction, he asked that he be allowed to stop registering. 

The ruling said in Harrison’s case, he could ask for relief from registration after 25 years.

A state district court initially agreed to Harrison’s request, but it was opposed by the state Division of Criminal Investigation.

The DCI said the 25-year limit began after Harrison started registering in 2009, not when he was convicted in 1994.

Harrison argued the district court made a mistake by starting the time on his registration period in 2009, but the Supreme Court said state law was clear that people required to register as sex offenders must do so for at least 25 years.

Harrison also argued that his constitutional rights to equal treatment under the law were violated because by changing the rules on registration, the state imposed extra years of registration that would not be imposed on someone else convicted of the same crime after 2007.

However, justices said Harrison did not offer enough evidence to get the court to reverse itself on its ruling in the past that the registration requirement is not a punishment, but a regulatory burden.

“He has not convinced this court to overturn our holding that the (registration law) is not an ex post facto punishment …” 

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By Jim Angell, Cowboy State Daily

A man who claimed to have fathered a child while involved in an “open relationship” can seek court action to determine whether he is the child’s father, Wyoming’s Supreme Court ruled Friday.

Justices overturned a lower court’s ruling that the man, identified only as BJ, lacked standing to bring paternity action in an effort to prove the child is his.

According to the ruling, the man and his wife were involved in an “open relationship” with a man identified as “CM” and his wife.

CM’s wife, identified as “Mother,” became pregnant and gave birth to a child in 2019. In May of 2019, BJ filed a petition to establish that he was the child’s father.

However, the mother asked that the petition be dismissed, saying her husband, CM, was the presumed father of her child.

The state district court in Cheyenne ruled that because the child already had a presumed father, CM, then BJ was a “stranger to the relationship” and was not entitled to seek a paternity order.

But justices said state law clearly allows “a man whose paternity of the child is to be adjudicated” the right to seek a court ruling on the issue.

“The language in (state law) is clear and unambiguous,” said the ruling, written by Justice Kari Gray. “BJ qualifies as ‘a man whose paternity of the child is to be adjudicated.’ He has standing under the plain meaning of the statute.”

The state district court was ordered to conduct new proceedings in the case.

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By Jim Angell, Cowboy State Daily

The conviction of a Gillette man on charges of drug possession and driving under the influence of intoxicants has been overturned by Wyoming’s Supreme Court, which ruled sheriff’s deputies improperly entered the man’s apartment without a warrant.

Justices overturned the convictions of Dillon Wayne Fuller, saying the evidence collected after police entered his apartment without a warrant should have been suppressed.

Police said they were in “hot pursuit” of Fuller and did not have to obtain a warrant to enter his home, but justices disagreed.

“Quite simply, there was no compelling need requiring immediate police action,” said the ruling, written by Justice Keith Kautz.

According to the ruling, the incident stemmed from an attempt by Campbell County Sheriff’s Deputy Ryan Kellison to stop a vehicle driven by Fuller in downtown Gillette for not having a visible registration.

When Kellison turned on his vehicle’s emergency lights, Fuller’s vehicle sped up to 40 mph and the driver refused to pull over. The vehicle traveled four blocks to a single-story apartment complex. There, Fuller parked the vehicle, jumped out of it and ran to an apartment, refusing two orders from Kellison to stop.

Kellison called for backup and interviewed a passenger in Fuller’s vehicle while he waited for other officers to arrive. 

After backup officers arrived, several went to the door of Fuller’s appointment, knocked and announced their presence three times and then kicked in the door.

Inside the apartment, they smelled alcohol and marijuana on Fuller and found marijuana and drug paraphernalia in plain view. Kellison then obtained a search warrant for the apartment.

Fuller was charged with felony driving while under the influence of intoxicants and felony possession of a controlled substance, along with fleeing or attempting to elude a police officer.

Fuller asked that all evidence found in his apartment be suppressed because the officers entered without a warrant.

The trial court in his case agreed with police who said they were involved in a “hot pursuit” at the time and did not need to obtain a warrant.

But justices agreed there was no emergency requiring a “hot pursuit” and immediate action by police, finding that when Kellison called for backup and interviewed the passenger in Fuller’s car, his pursuit of Fuller had ended.

“At the time the officers entered Mr. Fuller’s apartment, there was no emergency requiring immediate police action,” the ruling said.

As a result, any evidence obtained when officers entered Fuller’s home should not be admissible, the ruling said.

“While Mr. Fuller was eventually arrested and charged with driving under the influence and possession of marijuana, the evidence support those charges was not discovered until after the officers unlawfully entered Mr. Fuller’s apartment,” it said.

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By Jim Angell, Cowboy State Daily

A man who shot a dog while it was being held by a teenager was properly convicted of reckless endangering, Wyoming’s Supreme Court has ruled.

The court upheld the conviction of Adam Christopher Mackley on the charge of reckless endangering, along with a charge of aggravated animal cruelty, stemming from the May 2019 Evanston incident.

According to the ruling, a man was walking his dog past Mackley’s house when the dog, a boxer named Rocky, broke loose and ran to Mackley’s home, where Mackley’s son was returning from walking Mackley’s three dogs.

The man walking his dog, Gabriel Mendez, shouted to a group of teenagers playing basketball nearby to ask for their help retrieving the animal.

As the boxer and two of Mackley’s dogs began to fight, one of the teenagers, identified as P.V., was able to grab the boxer’s harness and pull him away from the house and into the street.

The fight continued despite the teenager’s efforts to stop it and Mackley came out of his house, armed with a pistol, and shot the boxer in the neck as it was held by P.V.

Mackley was convicted of aggravated cruelty to animals and reckless endangering and was sentenced to probation.

In Mackley’s appeal, he argued that he should not have been convicted of reckless endangering because he did not point the gun at P.V. and did not “wildly” shoot at the dog, but was very careful to avoid harming P.V.

But justices, in the opinion written by Justice Kate Fox, said the jury in Mackley’s case properly found that Mackley’s actions put P.V. in danger, even if they did not result in actual injury to the boy.

“The state presented evidence that P.V. was holding Rocky while … Mackley shot him and that … Mackley gave no warning before he fired,” the opinion said. “Based on that evidence, the jury could conclude that … Mackley consciously disregarded a substantial risk that his conduct placed P.V. in danger of death or serious bodily injury, and that his conduct was a gross deviation from the standard of conduct a reasonable person would observe in that situation.”

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By Jim Angell, Cowboy State Daily

A Burns teacher dismissed for violating the school’s policies on bullying and intimidating students while disciplining his daughter on school property was properly removed from his job, Wyoming’s Supreme Court has ruled.

The court on Thursday upheld the removal of Marvin Mirich, rejecting his arguments that there should be an exception to the school’s harassment, intimidation and bullying policy when his actions involved disciplining his daughter.

“Mr. Mirich does not identify any evidence showing he was entitled to an exception and we found no such evidence in the record,” said the opinion, written by Justice Lynne Boomgaarden.

According to the ruling, Mirich was a full-time teacher at Laramie County School District No. 2 who taught physical education and coached track at Burns Junior/Senior High School.

The ruling said on March 9, 2018, Mirich was speaking with his daughter, identified as JM, about her poor performance on an obstacle course at track practice the night before. The opinion said his daughter called Mirich an obscene name and after the incident was believed by fellow students to be crying.

Mirich later went to his daughter’s classroom and asked to speak with his daughter. She joined him in a hallway of the school, where a video showed they argued. As JM began to walk away from her father, he grabbed the hood of her sweatshirt and pulled her backwards, leading her to fall.

When JM got up, Mirich backed her into lockers and “twice appeared to bump her back into the lockers when she attempted to move away.” Later, Mirich took his daughter into an empty classroom, where he could be heard yelling and using profanity, the opinion said.

The district superintendent recommended Mirich be dismissed for violating the district’s “harassment, intimidation and bulling” policies and a hearing officer who reviewed the case recommended the same.

The recommendations also accused Mirich of violating the Wyoming Professional Teaching Standards Board’s Professional Conduct Guide, in part by using profanity.

Mirich, in his appeal, argued he did not violate the school’s policies because in part “the incident involved his daughter and he acted as her parent.”

But justices said the policies apply equally to all students.

Justices also said Mirich’s use of profanity violated the Professional Conduct Guide even though he was speaking to his daughter and not other students.

“The evidence, however, reflects that JM was a Burns High student and that Mr. Mirich used the profanity on campus, during school hours, while being paid as a teacher,” the opinion said. “Mr. Mirich points to no evidence of a teacher-parent exception.

As a result, the district’s school board had sufficient evidence to support its decision to dismiss Mirich, the opinion said.

“The board had before it substantial evidence of ‘any other good or just cause relating to the educational process’ to justify its decision dismissing Mr. Mirich,” it said.

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By Jim Angell, Cowboy State Daily

Wyoming’s Supreme Court has rejected the latest appeal of a man convicted of killing a toddler  in 2018.

Justices on Friday issued a memo rejecting the latest appeal of Jesse James Hartley in his felony murder and child abuse convictions stemming from the death of 2-year-old Brandon Green.

Hartley was found guilty by a jury in May 2019 of felony murder and aggravated child abuse in the death of 2-year-old Brandon Green one year earlier.

Hartley was taking care of the boy at the Mountain View home he shared with the boy’s mother when the death occurred and he claimed the child was found facedown in a bathtub. Medical examiners found no evidence of drowning, but did find evidence of brain hemorrhage consistent with repetitive, violent shaking, along with extensive bruising.

Hartley was sentenced to life with the opportunity for parole on the felony murder conviction. Felony murder occurs when someone is killed in the course of a felony — such as aggravated child abuse. Hartley was also sentenced to 18 to 25 years on the charge of aggravated child abuse.

In an earlier appeal in 2020, the Supreme Court said Hartley could not be sentenced for both crimes because the crime of aggravated child abuse was an element of the felony murder charge. A sentence for both, justices said, would amount to multiple punishments for one crime.

The sentencing court in Uinta County eliminated the sentence for aggravated child abuse and imposed a sentence of life in prison for the felony murder conviction.

Hartley filed his latest appeal on his own after his court-appointed attorney asked to withdraw as his counsel. Although the court’s memo did not go into detail, it said Hartley appealed his conviction rather than the sentence and that only the sentence could be addressed by justices at this point.

“Such claims could have and should have been made in his (initial) appeal from his convictions and are not proper given the limited nature of this court’s remand,” said the memo, which also upheld Hartley’s life sentence.

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