Summary 2009 WY 28

Summary of Decision issued March 3, 2009

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

Case Name: In re: MM

Citation: 2009 WY 28

Docket Number: S-08-0120

Appeal from the District Court of Park County, the Honorable Gary P. Hartman, Judge.

Representing Appellant MM: David M. Clark of Worrall & Greear, PC, Worland, Wyoming.

Representing Appellee State: Bruce A. Salzburg, Wyoming Attorney General; Robin Sessions Cooley, Deputy Attorney General; Jill E. Kucera, Senior Assistant Attorney General; Elizabeth B. Lance, Assistant Attorney General.

Guardian Ad Litem MM, a minor: Andrea L. Earhart of McCarty and Reed, Cody, Wyoming.

Facts/Discussion: Father appealed from the adjudication order incorporating the jury’s verdict that the Child was abused while in his custody. Father claimed that the State’s failure to produce the recording of the conversation with the Kempe Children’s Center to the respondents in a timely manner violated the W.R.P.J.C. and the constitutional mandates set forth in Brady v. Maryland.
Rule 3(b)(1) clearly required the State to notify the respondents of all information which tended to negate their involvement in the charged offense. Rule 3(c) required the State to promptly furnish any exculpatory information to the respondents and Rule 3(g) made the duty to disclose continuing. In the district court, the State claimed it was not required to produce the recording because it was privileged work product and not subject to discovery. The Court assumed for the purposes of the case that the evidence was not work product and was subject to disclosure. The record indicated that the recording was played for the jury and the information was available for respondents to use in cross examining the State’s witnesses and that Father referred to it in closing arguments. Father could have requested a continuance in order to fully prepare for its effective use on cross. As he did not, the Court did not feel the district court abused its discretion.
In Brady, the United States Supreme Court held that suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment irrespective of good faith or bad faith of the prosecution. Father had the burden of proving the prosecution suppressed evidence, the evidence was favorable to the defense, and 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. In Thomas v. State, the Court concluded the defendant’s due process rights were not violated when the State revealed exculpatory evidence on the second and third day of trial because the defense was able to use the evidence for cross and argument during trial and did not request a continuance. In the instant case, the State produced the recording to the respondents the day before trial and it was played for the jury. The defense referred to it during opening statements, had the opportunity to cross examine and emphasized it in closing arguments. In addition, Father did not request a continuance.
The Court considered the evidence in the context of the other evidence presented at trial. The strength of the evidence was reduced because the doctor on the recording did not examine the child at the time of the alleged abuse. His testimony would have been limited to a review of the photographs or medical records. The Court could not conclude that there was a reasonable probability that had the evidence been disclosed to the defense in a timelier manner, the result of the proceeding would have been different.

Conclusion: The juvenile court properly addressed, pursuant to the Wyoming Rules of Procedure for Juvenile Courts, the State’s failure to disclose the evidence by ordering production of the information to Father. In light of the State’s production of the evidence to Father prior to trial and the strength of the State’s case, the Court concluded that Father failed to show a violation of his due process rights.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/dn3qp8 .

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