Wednesday, November 16, 2011

Summary 2011 WY 156

Summary of Decision November 16, 2011

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Case Name: Garner v. State

Citation: 2011 WY 156

Docket Number: No. S-11-0119


Appeal from the District Court of Uinta County, Honorable Dennis L. Sanderson, Judge

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

Representing Appellee (Plaintiff): Gregory A. Phillips, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Jenny Lynn Craig, Senior Assistant Attorney General.

Date of Decision: November 16, 2011

Facts: Appellant challenges his convictions on two counts of delivery of a controlled substance, in violation of Wyo. Stat. Ann. § 35-7-1031(a)(i). He contends the district court improperly limited cross-examination of a key prosecution witness, and that the evidence was insufficient to support his convictions.

Issues: Whether the trial court erred in admonishing defense counsel, limiting his cross-examination and issuing a limiting instruction to the jury, when in fact defense counsel was properly testing the credibility of a confidential informant. Whether there was sufficient evidence to sustain the convictions of Appellant.

Holdings: Appellant asserts that the testimony regarding a confidential informant’s testimony that her 16-year-old son helped her sell marijuana was admissible under W.R.E. 608(b) to impeach HB’s credibility. Rule 608(b), however, does not govern all inquiries into a witness’s credibility. There is a distinction between evidence that impeaches by proof of a witness’s character or disposition for veracity, or the lack thereof, and evidence which establishes a lack of credibility through a showing of such things as bias or undue influence. Evidence of bias or interest is not an attack on the witness’s character for truthfulness and, thus, the admission of such evidence is not governed by F.R.E. 608.” The evidence indicating that the witness involved her 16-year-old son in the sale of marijuana was not probative of HB’s character for truthfulness, and Appellant does not contend otherwise. The evidence was not admissible under W.R.E. 608(b).

Instead, the witness’s testimony regarding her agreement to act as a confidential informant, to the extent that it shows a relationship between a party and a witness which might lead the witness to slant, unconsciously or otherwise, his testimony in favor of or against a party, is properly characterized as evidence of bias. Cross-examination intended to show bias is generally permitted by W.R.E. 607. However, a district court retains discretion under W.R.E. 403 and W.R.E. 611 to exclude evidence that is otherwise relevant.

Although Appellant does not contend that his constitutional rights were infringed, we measure the district court’s exercise of discretion against the right of cross-examination guaranteed by the Confrontation Clause. In order for there to be a violation of the right of confrontation, a defendant must show more than just a denial of the ability to ask specific questions of a particular witness. Rather, a defendant must show that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness to expose to the jury the facts from which jurors could appropriately draw inferences relating to the reliability of the witness. The Confrontation Clause guarantees a defendant an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish. Thus, a defendant’s right to cross-examination of a witness is not unfettered, but is subject to the trial court’s discretion to reasonably limit cross-examination to prevent, among other things, questioning that is repetitive or of marginal relevance.

Appellant contends that the testimony relating to the witness’s son was evidence of bias because, considering the gravity of her offense, it shows that she received an “exceptional” deal from the prosecution. At this point in the trial, however, she had been cross-examined about her plea agreement. During her testimony, the jury was repeatedly reminded that she had avoided a felony conviction, for which she faced 30 years in prison, by agreeing to act as a confidential informant. Accordingly, the record clearly reveals that Appellant was allowed to develop his claim of bias based on the State’s agreement with the witness, and was also permitted to draw the jury’s attention to the offense prompting that agreement.

The district court appropriately determined that the witness’s testimony as to her agreement with the State was admissible to demonstrate potential bias. However, the decision to exclude certain details of the criminal conduct was also within the district court’s discretion under W.R.E. 403 and 611. The district court’s decision to exclude the testimony related to the witness’s son was based on the determination that the evidence was not relevant and that the danger of unfair prejudice to the State outweighed any marginal tendency to show that the witness was biased. The district court’s analysis was consistent with the balancing of prejudice and probative value that is explicit under Rule 403, and the similar balancing test implicit under Rule 611. Considering the entirety of the testimony, there is no basis to conclude that the district court abused its discretion.

Appellant also contends that the district court erred in instructing the jury that it was improper for Appellant’s counsel to elicit testimony relating to the witness’s son without previously disclosing the planned inquiry to opposing counsel and the court. Appellant, however, when given the opportunity at trial, did not object to the district court’s curative instruction. As a result, the instruction is reviewed under the plain error rule. To demonstrate plain error, an appellant must show: 1) the record clearly reflects the incident urged as error; 2) a violation of a clear and unequivocal rule of law; and 3) that the appellant was materially prejudiced by the denial of a substantial right.

Appellant has made no attempt to present a plain error analysis with regard to the district court’s curative instruction. Appellant makes no argument that he was prejudiced by any error in the court’s curative instruction, and, as a result, he has failed to carry his burden of demonstrating that any defect in the curative instruction constitutes plain error.

The standard of review for determining whether evidence is sufficient to sustain a conviction does not permit us to reweigh evidence or re-examine the credibility of witnesses. Consequently, Appellant’s invitation to engage in the credibility determination inherent in his sufficiency of the evidence analysis must be rejected. In light of testimony offered by the confidential informant, her husband, the DCI agent who coordinated the controlled buy, and personnel from the state crime lab, in addition to the exhibits introduced at trial, which included the tape recording of the transaction, the records of the informant’s text messages and phone calls to Appellant, a photocopy of the controlled buy funds, and the laboratory report confirming that the substance purchased from Appellant was methamphetamine, ample evidence to support Appellant’s convictions exists.


J. Burke delivered the opinion for the court.

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