08/01/2023
DA 21-0380
Case Number: DA 21-0380
IN THE SUPREME COURT OF THE STATE OF MONTANA
2023 MT 148N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
MARY DARLEAN WRIGHT,
Defendant and Appellant.
APPEAL FROM: District Court of the Tenth Judicial District,
In and For the County of Fergus, Cause No. DC 2019-32
Honorable Jon A. Oldenburg, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Chad Wright, Appellate Defender, Helena, Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Katie F. Schulz, Helena,
Montana
Kent Sipe, Fergus County Attorney, Jean Adams, Deputy County
Attorney, Lewistown, Montana
Submitted on Briefs: June 21, 2023
Decided: August 1, 2023
Filed:
ir,-6‘A•-if
__________________________________________
Clerk
Justice Beth Baker delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, we decide this case by memorandum opinion. It shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 Mary Wright appeals her conviction for conspiracy to commit evidence tampering.
Wright argues that the Tenth Judicial District Court erred in denying her motion to dismiss
for insufficient evidence.1 Wright alternatively argues that the court abused its discretion
when it prevented her from obtaining exculpatory evidence from the attorney for her
deceased alleged coconspirator. Because the State presented sufficient evidence of a
conspiracy to send the case to the jury and because the trial court did not deny Wright
information she needed to present a full defense, we affirm Wright’s conviction.
¶3 On September 29, 2018, Wright and her friend Alan Williams left Wright’s home
and drove separate cars from Moore to Lewistown. A city police officer stopped Wright
for speeding but let her go without citation. A sheriff’s deputy stopped Williams for
crossing the center line and not having an illuminated license plate. Based on evidence
1
After the State rested, Wright moved “for a directed verdict pursuant to Montana Code Annotated
46-16-403.” Such a motion is better referred to as a motion to dismiss for insufficient evidence,
and the Court will do so in this Opinion. See Section 46-16-403, MCA (“When, at the close of the
prosecution’s evidence or at the close of all the evidence, the evidence is insufficient to support a
finding or verdict of guilty, the court may, on its own motion or on the motion of the defendant,
dismiss the action and discharge the defendant.”); State v. McWilliams, 2008 MT 59, ¶ 36,
341
Mont. 517,
178 P.3d 121.
2
discovered during a pat-down search, the deputy arrested Williams for possession of
dangerous drugs, in violation of § 45-9-102(1), MCA.
¶4 The following day, Williams made several calls from the Fergus County jail. First,
he called his mother—Marjorie Andrus—at 12:41 p.m. Andrus told her son that she was
gathering various items for him, including his cane and inhaler, and was going to the store
to get his prescription. Williams described being stopped and shared that Wright—also a
longtime friend of Andrus’s—was stopped the same day. Andrus indicated that she already
had spoken with Wright about her stop. Williams and Andrus then had the following
exchange:
Williams: Did you clean my room up?
Andrus: As well as I could. I didn’t find nothing.
Williams: Under my pillows, did you get that stuff out from under my
pillows?
Andrus: Yeah.
Williams: Okay.
Andrus: The little square thing?
Williams: Yeah.
Andrus: Yeah.
Williams: Okay, okay. That’s good.
After discussing other topics, the two concluded the call.
¶5 Williams then called Wright at 1:10 p.m. Williams and Wright discussed their
respective stops and then had the following exchange:
3
Williams: But, I need you to do me a favor and go -- and when Mom comes
home later on this evening, go over to the house and go through my bedroom
with a fine-toothed comb and fix it up, do the best you can with it and look
for anything that shouldn’t be there. I don’t know if my --
Wright: Okay.
Williams: -- PO is coming up to the house or not[.] Mom -- mom went
through there.
Wright: I’m going to put that little box in the shed and lock it.
Williams: Which box?
Wright: You know what I’m talking about? The safe.
Williams: Huh? Oh, my safe?
Wright: Your safe, yeah.
Williams: There’s nothing in that.
Wright: Put it in the shed. Okay, good.
Williams: There’s nothing in it.
Wright: Good.
Williams: Mom -- mom already got my safe, got my pills out -- somebody
got my Somas.
. . .
Williams: Well, mom already -- mom said she went through there.
Wright: Got to --
Williams: She’s got that little square thing for you.
Wright: Yeah, okay.
4
Williams called his mother again later that afternoon. She said she was home again.
Williams asked for help in getting the jail to administer his prescription. Williams also
explained that he had another cell phone in a black bag at home that had “a bunch of text
messages on it that aren’t good.”
¶6 An officer at the jail turned recordings of Williams’s calls over to the Fergus County
Sheriff’s Office. Based on a belief that the calls demonstrated that Williams, Andrus, and
Wright agreed to destroy or hide evidence from law enforcement before an imminent
investigation, the sheriff’s office secured and executed search warrants for Williams’s and
Wright’s homes on October 3, 2018. Officers found a safe in Williams’s room but no
contraband inside. In a padlocked shed outside the house, officers located a closed suitcase
with another bag inside of it that contained a small square scale used to weigh
methamphetamine.2 In Wright’s home, officers discovered drugs and drug paraphernalia.
The State offered Wright a plea deal to defer prosecution on conspiracy charges if she
pleaded guilty to possession. Wright declined and went to trial. A jury convicted her of
three possession charges. The State then charged Wright with conspiracy to commit
evidence tampering. See §§ 45-4-102, MCA (“Conspiracy”); 45-7-207, MCA
(“Tampering With Or Fabricating Physical Evidence”).
¶7 Both Williams and Andrus died before Wright’s conspiracy trial. Wright’s counsel
filed a “Motion for Gillham Order” to allow Andrus’s attorney, Layne Scheveck, to share
2
Williams’s possession charges were dismissed after the court, finding no grounds for the
pat-down search of Williams during the traffic stop, suppressed this evidence as fruit of the
poisonous tree.
5
information from his deceased client without violating the Montana Rules of Professional
Conduct. Wright’s counsel sought information that Andrus “would have shared regarding
[Wright] and her contact with [Wright] from the moment those jail calls took place to the
moment those search warrants were served on the parties.” The State opposed the motion,
arguing that a Gillham order would be incorrect procedurally and that, regardless, the court
should not grant it because Scheveck’s testimony would be inadmissible hearsay. The
District Court held a hearing where Scheveck testified. Scheveck shared that he spoke with
Andrus four to five times and that he believed she would have wanted him to share
information with Wright’s attorney. Scheveck said that the information he had was
exculpatory for Wright and that he had taken notes of his conversations with Andrus. Upon
questioning from the court, Scheveck admitted that he did not know if he had information
that Wright did not know and that he learned the information after Wright was charged and
after he became Andrus’s attorney. Citing concerns about cross-examination, the court
requested an in camera inspection of Scheveck’s writings regarding his conversations with
Andrus. Scheveck produced a two-page timesheet with notations. Finding “no exculpatory
or inculpatory information” in the timesheet, the court denied Wright’s motion.
¶8 Wright’s jury trial for conspiracy lasted three days. After the State rested, Wright
moved to dismiss for insufficient evidence. Citing State v. Black, 2003 MT 376,
319 Mont.
154,
82 P.3d 926, Wright argued that a defendant may not be found guilty of an offense
based on testimony of another person responsible for the same offense unless that other
person’s testimony is corroborated by other evidence tending to connect the defendant with
6
the commission of the offense. Pointing out that her alleged coconspirators were deceased,
Wright argued that the State had not presented substantial evidence beyond their phone
calls connecting Wright to a conspiracy. The District Court denied the motion, reasoning
that Black did not apply because the jail calls were not testimony and that the State had
presented sufficient evidence for the case to go forward. The jury found Wright guilty, and
the court sentenced her to the Department of Corrections for three years with a
recommendation for conditional release.
¶9 We review de novo a denial of a motion to dismiss for insufficient evidence. State
v. Ohl, 2022 MT 241, ¶ 6,
411 Mont. 52,
521 P.3d 759. We review for abuse of discretion
a district court’s rulings on discovery motions. City of Bozeman v. Howard,
2021 MT 230,
¶ 9,
405 Mont. 321,
495 P.3d 72.
Sufficiency of the Evidence
¶10 Wright argues that the District Court erroneously denied her motion to dismiss for
insufficient evidence of conspiracy. “To succeed on a motion to dismiss for insufficient
evidence, a defendant must show that, viewing the evidence in the light most favorable to
the prosecution, a rational trier of fact could not find the essential elements of the crime
beyond a reasonable doubt.” Ohl, ¶ 8; § 46-16-403, MCA. Section 45-4-102, MCA,
defines the elements of conspiracy:
A person commits the offense of conspiracy when, with the purpose that an
offense be committed, the person agrees with another to the commission of
that offense. A person may not be convicted of conspiracy to commit an
offense unless an act in furtherance of the agreement has been committed by
the person or by a coconspirator.
7
¶11 Upon review of the record, we conclude that the District Court correctly denied
Wright’s motion to dismiss for insufficient evidence. By presenting the jail call in which
Williams asked Wright to go through his bedroom with a “fine-toothed comb” and Wright
agreed, the State presented evidence of an agreement to conceal. The State also presented
evidence of two possible acts in furtherance of Wright and Williams’s agreement. First,
the State presented that a small, square scale was found in the locked shed—a location
identified only by Wright. There is no indication in the call Williams had with his mother
that Andrus had moved the scale to the shed before Williams spoke with Wright. Indeed,
Williams requested that Wright catch anything his mother may have missed and indicated
that his mother had the scale for Wright. Second, the State presented evidence of Andrus’s
and Williams’s second call, during which Williams described a cell phone with texts that
he did not want law enforcement to see. Given their earlier conversations about cleaning
up his room, a reasonable trier of fact could conclude beyond a reasonable doubt that
Andrus later located Williams’s phone and cleared his messages. Viewing the evidence,
though circumstantial, in a light most favorable to the State, either of these two acts after
Wright’s agreement reasonably could have constituted an act in furtherance of the
conspiracy. See State v. Laird, 2019 MT 198, ¶ 60,
397 Mont. 29,
447 P.3d 416
(“Circumstantial evidence is adequate [to sustain a conviction] if . . . it is of such quality
and quantity as to legally justify guilt beyond a reasonable doubt when all of the facts and
circumstances are considered collectively.”).3
3
Wright contends that the State presented only one overt act—Andrus’s cleanup before Wright
8
¶12 Finally, contrary to Wright’s argument on appeal, the State presented sufficient
evidence that Wright purposefully entered the conspiracy—Wright expressed her care for
Williams during their call, and Williams expressed concern about the parole consequences
if Wright did not assist him in concealing evidence. On such facts, a rational jury could
find purpose.
“Gillham” Motion
¶13 Wright argues that the District Court abused its discretion when it denied her motion
for a Gillham order to allow her to speak with Andrus’s attorney Scheveck. Wright
contends that not being able to present Scheveck’s exculpatory information violated her
right to due process because it prevented her from presenting a full defense.
¶14 As an initial point, we agree with the parties that a Gillham order was not the proper
procedural vehicle to request what Wright sought. In re Gillham allows counsel for a
convicted defendant to reveal confidential information in a post-conviction proceeding
where the defendant alleges ineffective assistance without counsel being subjected to
disciplinary proceedings; the case does not address revelations by attorneys in other
circumstances. 216 Mont. 279, 282,
704 P.2d 1019, 1020 (1985).
¶15 Framing of the motion and order aside, we conclude that the District Court did not
abuse its discretion in denying Wright’s request. Scheveck testified that he met with
and Williams’s agreement. Wright argues that, under the language of § 45-4-102, MCA, overt
acts may be considered in furtherance of a conspiracy only when they occur after an agreement.
Because the State presented sufficient evidence of an act after the agreement, as described above,
we need not address this argument in this case.
9
Andrus after the alleged events took place and after Wright was charged. Scheveck
testified that he did not have any information that Wright would not have herself. Given
this testimony, it was not arbitrary for the District Court to conclude that Wright already
had the information she sought to introduce via Scheveck. Wright’s due process right to
present a full defense thus was not impacted by the District Court’s decision.
¶16 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our
Internal Operating Rules, which provides for memorandum opinions. Wright’s conviction
is affirmed.
/S/ BETH BAKER
We Concur:
/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ INGRID GUSTAFSON
/S/ JIM RICE
10
