Summary 2011 WY 132

Summary of Decision September 20, 2011


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Case Name: Washington v. State

Citation: 2011 WY 132

Docket Number: S-11-0041

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464400

Appeal from the District Court of Natrona County, Honorable David B. Park, Judge

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

Representing Appellee (Plaintiff): Gregory A. Phillips, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Justin A. Daraie, Assistant Attorney General.

Date of Decision: September 20, 2011

Facts: The appellant, while working as a confidential informant for the Wyoming Division of Criminal Investigation (DCI), was arrested after drugs were discovered in his vehicle. In this appeal, he challenges the district court’s denial of discovery of the confidential informant agreement (CI agreement) between him and DCI, as well as DCI’s policy manual regarding procedures to be followed with confidential informants (CI policy manual). The district court’s Judgment and Sentence incorrectly stated that the appellant pled guilty to the charged offenses. The parties entered a stipulated motion to modify the Judgment and Sentence to correct that inaccuracy to read that the appellant had been found guilty. The parties, however, failed to notice that the Modified Judgment and Sentence did not comply with certain provisions of W.R.Cr.P. 32. Thus, the appellant further argues that the matter should be reversed and remanded inasmuch as the Modified Judgment and Sentence does not fully comply with W.R.Cr.P. 32.

Issues: Whether the district court improperly denied discovery of the CI agreement and the CI policy manual. What is the effect of the noncompliance with W.R.Cr.P. 32 in the Modified Judgment and Sentence.

Holdings: Nothing in the record indicates that the appellant was actually denied access to the CI agreement. The Motion to Compel Discovery did not specifically request access to the CI agreement and it appears that appellant always had access to the document, even prior to the hearing on the Motion to Compel Discovery, let alone prior to the trial itself. The prosecutor informed the appellant before the trial that he intended to rely upon the agreement at trial. The CI agreement was introduced by the State and available as an exhibit. The appellant’s attorney clearly relied on her own copy of the agreement at trial; at one point in the trial testimony she makes reference to “my copy” of the agreement. She also cross-examined one of the State’s witnesses from her copy of the agreement and made reference to its content in her closing argument. The evidence indicates that not only did the appellant have access to the agreement prior to trial, but he also was well prepared regarding the content of the agreement. The record simply does not support the appellant’s contention that he was denied access to the CI agreement

Although there is no constitutional right to discovery, a defendant has a constitutionally protected right to present a defense. A defendant may request discovery of certain items from the state, but the state is only required to provide such information as indicated by statute, rule or case law. At the hearing on the Motion to Compel Discovery, the appellant pointed to W.R.Cr.P. 16 as grounds for his claim that the State was required to provide the CI policy manual. The appellant’s defense rested on the assertion that he was confused as to the point and circumstances at which he had the authorization of DCI to buy drugs. Much of what is contained in the CI policy manual is also present in the CI agreement, which was available to the appellant at trial. Both the CI policy manual and the CI agreement specifically preclude a confidential informant from handling illicit drugs unless authorized to do so by DCI. Nothing in the CI policy manual, explicitly or implicitly, gives DCI agents the power to permit confidential informants unilaterally to procure drugs, as the appellant suggests. What is material to the appellant’s defense is the information actually conveyed to him by DCI, either in the form of the CI agreement that he signed or in the agents’ oral explanation of the terms of the agreement and their expectations for his participation in the controlled buy. The record indicates that the agents adequately and clearly explained each item in the CI agreement and the appellant acknowledged his understanding of each item. The appellant presents no evidence to indicate that he was authorized or instructed to go off on his own and procure illegal drugs from as many drug dealers as possible. One cannot simply infer from the fact that the appellant did not follow the instructions given to him that the instructions were necessarily inadequate or vague or that the appellant was misled. The district court reasonably denied discovery of the CI policy manual as that document was not material to the appellant’s defense.

Both parties agree that the Modified Judgment and Sentence did not fully comply with W.R.Cr.P. 32(b). Where an error or omission occurs in a lower court’s order, it must be determined whether it was a clerical or judicial mistake. Clerical errors are all errors, mistakes, or omissions which are not the result of the exercise of the judicial function. Judicial error, on the other hand, is the deliberate result of judicial reasoning and determination. Where the error is clerical, W.R.Cr.P. 36 is designed to correct such mistakes. In the present action, the failure to satisfy all the requirements of W.R.Cr.P. 32 is a clerical error. There is no indication in the record that the omission was anything other than a mere accident. Such errors may be corrected at any time. The parties do not dispute the content of the terms nor do the parties dispute whether the terms ought to be included in the Modified Judgment and Sentence. As such, there is no need to reverse, but rather it would be appropriate to remand to the district court to amend the Modified Judgment and Sentence so that it will meet the requirements of W.R.Cr.P. 32 and the expectations of the parties and the trial judge.

No reversible error was committed by the trial court. The appellant had access to the CI agreement prior to trial and referred to this document at trial. Denial of the appellant’s Motion to Compel Discovery of DCI’s policy manual was not an abuse of discretion. The omissions in the Modified Judgment and Sentence were simply clerical errors and will be corrected on remand to the district court. The conviction is affirmed.

J. Voigt delivered the opinion for the court.