Summary 2010 WY 145

Summary of Decision November 9, 2010

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Case Name: Lawson v. State

Citation: 2010 WY 145

Docket Number: S-09-0061, S-09-0209, S-10-0001

URL: http://tinyurl.com/2abehxn

Appeal from the District Court of Laramie County, Honorable Michael K. Davis, Judge

Representing Appellant (Defendant): Diane Lozano, State Public Defender, PDP; Tina Kerin, Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel.

Representing Appellee (Plaintiff): Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Jenny L. Craig, Assistant Attorney General.

Date of Decision: November 9, 2010

Facts: A jury found Appellant guilty of possessing cocaine and methamphetamine with intent to deliver. He appeals, claiming the district court should have granted him a new trial because the prosecutor suppressed exculpatory evidence. He also claims the prosecutor engaged in misconduct by soliciting false testimony.

Issues: Whether the trial court improperly denied Appellant’s the new trial motion claiming Brady violations. Whether the prosecutor engaged in misconduct by eliciting false testimony.


Holdings: In order to establish a Brady violation, a defendant must demonstrate that the prosecution suppressed evidence, the evidence was favorable to the defendant, and the evidence was material. Favorable evidence includes impeachment evidence. Brady also extends to evidence gathered by investigating officers but not actually known to the prosecutor. Brady imposes an affirmative duty on the prosecutor to learn of favorable evidence in the State’s control and divulge such evidence to the defendant. However, Brady does not automatically require a new trial whenever a combing of the prosecutor’s files after the trial discloses evidence possibly useful to the defense but not likely to have changed the verdict. A finding that the undisclosed evidence is material is required. Evidence is material under Brady only when a reasonable probability exists that the result of the proceeding would have been different had the evidence been disclosed.

Appellant has identified thirteen documents that the State did not disclose to him. The documents vary in kind but fall mostly into two categories: documents providing support for Appellant’s claim that he was not involved in drug activity and documents providing information regarding plea agreements he could have used to impeach the State’s witnesses.

However, certain of these documents were provided to the defense six weeks prior to trial, and as such, there was no Brady violation with respect to them. The essence of Brady is the discovery of information after the trial, which was known to the prosecution but unknown to the defense during the trial. Thus, where exculpatory evidence is discovered during the trial and defense counsel has the opportunity to use it in cross-examination, closing argument, or other parts of the defense case, there is not a due process violation.

All of the documents in question need be considered cumulatively to determine whether the prosecution’s failure to disclose them undermines the confidence in the outcome of the trial. The undisputed evidence showed Appellant lived in a house where significant drug activity was ongoing, all of the other residents, including Appellant’s girlfriend, were intimately involved with drugs, and drugs and drug paraphernalia were found in the room and under the bed where Appellant slept. Photographs the State introduced into evidence clearly showed a digital scale, two spoons and a white substance on a red entertainment center located in the bedroom occupied by Appellant. Other photographs showed Ziploc bags found between the mattress where Appellant slept and a chest at the end of the bed. The State also presented evidence that Appellant had direct involvement in drug trafficking. While the undisclosed evidence may have strengthened Appellant’s defense that he was not involved in the drug activity, the likelihood that it would have changed the jury’s verdict is remote. The photographs the State introduced into evidence and direct testimony were strong evidence of Appellant’s involvement. While some of the documents supported the inference that other parties may have been the principal participants in the drug activity and the primary focus of the investigation, they do not tend to prove that Appellant was not involved in drug activity. Given the circumstantial evidence that he lived in a home where drug activity was common place, and slept in a bedroom where drugs and drug paraphernalia were found hidden and in open view, the prosecution’s failure to disclose evidence supporting Appellant’s defense does not undermine the confidence in the verdict.

Additionally, there is no question the undisclosed evidence regarding plea agreements would have been useful to Appellant in for impeachment purpose. However, the defense challenged the witness’ credibility. The jury heard testimony about his history of using and selling drugs. He testified that he was addicted to drugs. He testified he had sold methamphetamine to different people probably forty to fifty times. He testified about his felony conviction for taking indecent liberties with a minor. He testified that his most recent arrest was for possession of, and possession with intent to deliver, methamphetamine. The record is also clear that during re-direct examination, the prosecutor solicited testimony from the witness that he did not know of any deal with the State with regard to the charges filed against him. However, the jury also heard him testify on cross-examination that he had a plea agreement with the State to plead guilty to the delivery count in exchange for the prosecutor’s agreement to dismiss the possession count and recommend probation. Thus, the jury heard evidence from which it could infer that the only witness directly implicating Appellant in the drug activity had received favorable treatment from the State for his admitted criminal conduct. Yet, the jury remained persuaded that Appellant was involved in drug trafficking. Given that the jury heard evidence from which it might have concluded that the witness was testifying falsely for his own benefit, the undisclosed evidence would not have provided important investigative leads or impeachment evidence to the defense, nor was it highly probative with respect to Appellant’s defense at trial such that it could very well have resulted in an acquittal.

In his second issue, Appellant contends the prosecutor committed misconduct when she solicited false testimony from a witness that there was no plea deal. Defense counsel did not object at trial to the prosecutor’s question or the witness’s response. In the absence of an objection, the claim is reviewed for plain error. In order to establish plain error, Appellant must show: 1) the alleged error clearly appears in the record; 2) the error transgressed an unequivocal rule of law in a clear and obvious way; and 3) the error adversely affected Appellant’s substantial right resulting in material prejudice to him.

The first prong of the plain error test is satisfied. The error Appellant alleges clearly appears in the record. The trial transcript reflects that the prosecutor solicited testimony from the witness that there was “no deal” concerning the charges against him when in fact a plea agreement existed in which the State dismissed one charge and recommended probation on the second charge in exchange for a guilty plea and testimony against Appellant. Turning to the second prong, deliberate deception of a court and jurors by the presentation of known false evidence is incompatible with rudimentary demands of justice. The same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears. In light of the evidence the defense uncovered after the trial of a plea agreement including a condition that the witness agreed to provide testimony and the testimony of that witness that there was no deal that the prosecutor not only solicited but allowed it to go uncorrected, Appellant has shown that the error transgressed an unequivocal rule of law in a clear and obvious way. However, the State’s case against Appellant did not depend entirely on the witness’ testimony. The State had sufficient additional evidence to support the charges against Appellant and take the case to the jury. While the witness’ credibility was an important issue, and the prosecutor knowingly committed misconduct in soliciting and failing to correct the false testimony concerning his plea agreement, Appellant has not shown that it materially prejudiced him. In reaching this result, however, prosecutors are reminded that when they solicit false testimony or fail to disclose exculpatory evidence they not only fail in their duty and risk otherwise justifiable convictions, but expose themselves to the charge that they have violated Rule of Professional Conduct 3.8.

Affirmed.

C.J. Kite delivered the opinion for the court.

J. Golden specially concurring. The three consolidated appeals should have be treated separately, with a focus on the issues appropriate to each appeal. I note that this is difficult because Lawson’s appellate brief does not treat the appeals separately. Appeal No. S-09-0061 is an appeal from the Judgment and Sentence of the district court. After reviewing Appellant’s brief, there was no argument presented that applied to the trial or other proceedings underlying that Judgment and Sentence. Therefore. Appeal No. S-09-0061 should be summarily affirmed. Appeal No. S-09-0209 arises from Appellant’s Motion for New Trial. As stated in the majority opinion, generally Appellant complained of certain exculpatory and impeachment evidence the State did not disclose before or during trial, as well as allegedly false testimony solicited by the prosecutor during trial. A review of Appellant’s appellate brief, therefore, reveals that his argument is directly related to the district court’s denial of this motion for a new trial. As such, the Court is required to engage in an analysis of the proceedings underlying that denial. The proceedings included a full evidentiary hearing on his motion, after which the district court found that no Brady violation had occurred and also that the prosecutor had not solicited false testimony. The review by the Court should be of the district court’s findings using the appropriate standards of review. Appeal No. S-10-0001 is from an order denying a second new trial motion based an alleged new Brady violation by the State. The district court held a full evidentiary hearing, after which it held that the newly discovered evidence brought to its attention did not meet the materiality or exculpatory requirements of Brady. His appellate brief addresses the newly discovered evidence that was at issue at this hearing. Therefore, there is at least one issue to be analyzed within the context of this appeal.

If each appeal were analyzed independently, the analysis would have been considerably different. Most importantly, different standards of review would have been be applied. However, in the end, my own review reaches the conclusion that that the ultimate result as determined by the majority opinion is correct.