Summary 2008 WY 130

Summary of Decision issued October 23, 2008

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Drury v. State

Citation: 2008 WY 130

Docket Number: S-07-0250

Appeal from the District Court of Laramie County, the Honorable Nicholas G. Kalokathis, Judge.

Representing Appellant: Diane M. Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel; John D. King, Faculty Director, Grant Curry and Jon Aimone, Student Interns of Defender Aid Program.

Representing Appellee: Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Graham M. Smith, Assistant Attorney General.

Facts/Discussion: Appellant Drury was convicted by a jury of felony larceny under Wyo. Stat. Ann. § 6-3-402(a)(c)(i). The district court deferred judgment and sentencing until both sides could submit materials related to a mistrial motion the defense brought during Officer Brown’s testimony. The motion was denied and Judgment and Sentence entered on August 21, 2007.

Testimony Regarding Credibility: Appellant had the burden of showing that she was prejudiced by the district court’s denial of the motion for mistrial. The testimony at issue was inappropriate. Officer Brown testified about his training in interview techniques, made comments about Appellant’s credibility, his opinion of her guilt and about the credibility of other suspects he interviewed. The question was whether the error required reversal or was harmless under W.R.A.P. 9.04. It was evident from the record that defense counsel, the prosecutor and the district court all had difficulty controlling the witness. The Court considered the improper evidence in light of the trial as a whole. The Court also considered the strength of the testimony to determine whether the jury could have found differently in the absence of the improper testimony. In light of the overwhelming evidence and Appellant’s confession, the Court could not say that the jury would have found differently in the absence of improper testimony. For the same reasons, the district court did not abuse its discretion in denying Appellant’s motion for mistrial.
Taped Interviews: Appellant admitted that the production of the recordings in question would have been impossible. The Court noted that the United States Court of Appeals for the Tenth Circuit considered the question in United States v. Gomez and determined the issue was more properly one of due process to be decided under Brady v. Maryland and its progeny.
Due Process Rights: Appellant contended that her due process rights were violated when Officer Brown destroyed the recordings of Appellants’ and other witness’ interviews. A showing of bad faith is required where an appellant cannot show that the destroyed evidence had exculpatory value that would have been apparent before destruction. Appellant failed to allege that the tapes could have had exculpatory value or that Officer Brown should have been aware of that value before he destroyed the tapes. Each of the interviewed employees was interviewed at trial. Defense counsel did not question any of the witnesses about the substance of the interviews nor about the contents of the tapes. Appellant had access to the reports prepared by Officer Brown. There was no evidence that the tapes had any possible exculpatory value. Officer Brown destroyed the recordings as a part of his routine procedure.

Holding: The district court did not abuse its discretion when it denied Appellant’s motion for a mistrial. The district court’s instructions to the jury were well-designed to mitigate any possible prejudice resulting from improper testimony. Any error in admitting the testimony was harmless in light of the compelling evidence presented against Appellant. Appellant failed to show that her due process rights were violated when tapes of witness interviews were destroyed. There was no dispute as to the content of the tapes, no showing of their having been exculpatory, and Appellant had access to all the witnesses as well as the interviewing officer and his reports of the interviews.

Affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/65mw48 .

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