Summary 2007 WY 187

Summary of Decision issued November 30, 2007

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Case Name: Wilkening v. State

Citation: 2007 WY 187

Docket Number: 06-109

Original Proceeding; Petition for Writ of Review; District court of Sweetwater County, the Honorable Nena R. James, Judge.

Representing Appellant (Petitioner): D. Terry Rogers, Interim Public Defender; Tina N. Kerin, Appellate Counsel. Argument by Ms. Kerin.

Representing Appellee (Respondent): Patrick J. Crank, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Eric Alan Johnson, Director, Prosecution Assistance Program; Geoffrey Gunnerson, Student Director, Prosecution Assistance Program; Kevin Kessner, Student Intern, Prosecution Assistance Program. Argument by Mr. Kessner.

Issue: Whether the trial court erred in denying the motion for new trial, in which it was alleged that the State had withheld potentially exculpatory evidence.

Facts/Discussion: The Court previously upheld Appellant’s conviction for felony interference with a peace officer. While that appeal was pending, he filed a motion for new trial in the district court claiming that the State had improperly withheld exculpatory evidence.
Standard of Review: When considering constitutional issues, the Court generally applies a de novo standard of review. The parties agreed that Appellant’s claim of failure to disclose evidence in violation of Brady should properly be reviewed de novo.
To establish a Brady violation, Appellant must prove that the prosecution suppressed evidence, that the evidence was favorable to the defense, and that the evidence was material because it was reasonably probable that had the evidence been disclosed to the defense the result of the proceeding would have been different. The burden was on Appellant to establish all three elements. The evidence directly at issue was the deputy’s alleged statement to the former prosecutor that he was going to Appellant’s property “to kick some ass.” The two deputies were at the hearing but according to the record they were not called as witnesses. The Court stated a Brady claim must fail when the disputed evidence in not included in the record.
The former prosecutor testified at the hearing and his statements were contrary to Appellant’s claim that the deputy made the statement as alleged. Appellate counsel testified about what the former prosecutor had said about the deputy’s statement. That testimony was not at issue here.

Holding: Appellant bore the burden of proving that the evidence existed but was suppressed. After reviewing the record the Court concluded that he did not carry that burden. Having failed to prove the first element, the challenge could not succeed.

Affirmed.

J. Burke delivered the opinion.

Link: http://tinyurl.com/2jzyyc .