Summary 2011 WY 168

Summary of Decision December 28, 2011


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Case Name: Landeroz v. State

Citation: 2011 WY 168

Docket Number: S-11-0052

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464963

Appeal from the District Court of Sweetwater County, Honorable Nena R. James, Judge

Representing Appellant (Defendant): Diane Lozano, State Public Defender PDP; Tina N. Olson, Appellate Counsel; David E. Westling, 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; Cathleen D. Parker, Senior Assistant Attorney General.

Date of Decision: December 28, 2011

Facts: A jury found Appellant guilty of aggravated assault and battery. The jury found her not guilty of attempted first degree murder, not guilty of the lesser included offense of attempted second degree murder, and not guilty of conspiracy to commit first degree murder. The jury was unable to reach a verdict on the lesser included offense of attempted manslaughter. After the jury’s verdict and the sentencing hearing, the State moved for dismissal of the attempted first degree murder charge without prejudice. The district court granted the motion.

Appellant also claims the district court erred in dismissing the attempted first degree murder charge without prejudice because in doing so it exposed her to double jeopardy. She also asserts her due process rights were violated when the State failed to disclose that a key witness against her had an agreement with the State for favorable treatment in return for his testimony.

Issues: Whether the district court violated Appellant’s constitutional right not to be twice placed in jeopardy for the same offense when it dismissed the first degree murder charge without prejudice after the jury acquitted her on that charge. Whether the State violated Appellant’s right to due process when it failed to disclose evidence that a key witness against her had an agreement with the State to testify in exchange for favorable treatment on the charges against him.

Holdings: The ripeness doctrine is premised upon jurisprudential principles designed to promote judicial economy and the wise exercise of judicial power. Ripeness is evaluated using two prongs: first, the fitness of the issues presented for judicial review are evaluated and, second, an evaluation is made of the hardship to the parties if judicial review is denied. In the present case, the State seeks to have the doctrine applied to preclude consideration of Appellant’s claim that, in ordering the attempted first degree murder charge to be dismissed without prejudice, the district court has exposed her to re-prosecution on the charge in violation of the double jeopardy clause. The State premises its argument on the fact that the alleged double jeopardy violation will occur only if it re-files the charge, which it has not done. In that sense, the State contends, the issue is not ripe for review. Were the State’s invitation to resolve this issue through application of the ripeness doctrine accepted, the issue of whether Appellant may be re-prosecuted and, if so, for what offense would remain unanswered. Clarifying the issue before any further proceedings are commenced is a wise exercise of judicial power likely to promote judicial economy.

The Fifth Amendment to the United States Constitution and Article 1, § 11 of the Wyoming Constitution guarantee that a person will not be placed twice in jeopardy for the same criminal offense. Although the two provisions contain different language, they have the same meaning and are co-extensive in application. The double jeopardy provisions of both Constitutions provide an accused three protections: 1) protection against a second prosecution for the same offense following an acquittal; 2) protection against a second prosecution for the same offense after a conviction; and 3) protection against multiple punishments for the same offense. The law is clear that when a defendant has been acquitted on a charge, the Double Jeopardy Clause guarantees that the State shall not be permitted to make repeated attempts to convict him. The State may not re-prosecute Appellant for attempted first degree murder or attempted second degree murder. As to those charges, the district court’s order of dismissal must be “with prejudice.” The jury was unable to reach a verdict on the manslaughter charge. The law is clear that a retrial following a deadlocked jury does not violate the Double Jeopardy Clause. The protection of the Double Jeopardy Clause by its terms applies only if there has been some event, such as an acquittal, which terminates the original jeopardy. The jury’s failure to reach a verdict is not an event which terminates jeopardy. Therefore, the State, if it chooses, may re-prosecute Appellant on the attempted manslaughter charge. However, the district court’s order of dismissal without prejudice refers to the attempted first degree murder charge and thereby creates some confusion. While the district court did not intend to suggest the State could re-charge Appellant with attempted first degree murder, an order clarifying that the dismissal without prejudice does not apply to that charge, which must be dismissed with prejudice, is appropriate.

The right to a fair trial, guaranteed to state criminal defendants by the Due Process Clause of the Fourteenth Amendment, imposes on States certain duties consistent with their sovereign obligation to ensure that justice shall be done in all criminal prosecutions. The suppression by the prosecution of evidence favorable to a defendant and material to his guilt violates due process. This is true irrespective of whether the prosecution acted in good or bad faith in suppressing the evidence.

In order to establish a violation of the prosecution’s duty, a defendant must demonstrate that the prosecution suppressed evidence, the evidence was favorable to the defendant, and the evidence was material. A violation 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 only when a reasonable probability exists that the result of the proceeding would have been different had the evidence been disclosed. A reviewing court should assess the possibility that such effect might have occurred in light of the totality of the circumstances and with an awareness of the difficulty of reconstructing in a post-trial proceeding the course that the defense and the trial would have taken had the defense not been misled by the prosecutor’s incomplete response. In judging materiality, the focus is on the cumulative effect of the withheld evidence, rather than on the impact of each piece of evidence in isolation.

During cross-examination, a prosecution witness testified that he had no deal with the State, but that he did have a discussion with the prosecutor concerning the possibility of improving his situation. He denied having received a letter concerning immunity from prosecution. Defense counsel asked to approach the bench and moved for a mistrial on the grounds that the prosecutor had not only withheld information but affirmatively acted to create a false impression that there were no assurances given to the witness in exchange for his testimony. During the ensuing discussion, the prosecutor stated that the witness had come in voluntarily within forty-eight hours after the shooting before he had legal representation and admitted to his involvement in the shooting. The prosecutor denied, however, that any “deal” was reached with the witness and implied that there was nothing in writing other than his own notes from meeting with The witness. The district court indicated that it could not grant the motion for mistrial solely on the basis of defense counsel’s belief that there was an agreement; there must be evidence showing the existence of an agreement. However, the district court took the motion for mistrial under advisement over the noon recess.

After the noon recess, defense counsel informed the court that he had just received a copy of a letter from the prosecuting attorney’s office to the witness’s attorney. The letter is on office letterhead and, although unsigned, the signature line states the name of the deputy county attorney who appeared at Appellant’s trial with the county attorney. The letter stated that the witness was interested in meeting with investigators for an “off the record” proffer and that the prosecuting attorney was interested in meeting with him and would consider any information The witness provided “in formulating a case disposition offer.” The letter further stated the terms and conditions of the proffer, including that the State agreed to take into consideration the degree of the witness’s cooperation and the nature and value of the information he provided in making any offer to settle the charges against him; the State would not make any plea offer unless it determined the witness had fully and truthfully disclosed all information in his possession concerning the shooting; and the State would not use the information the witness provided as a basis for filing new charges against him. The letter was signed by the witness and his attorney.

Appellant’s counsel informed the court that he had not previously seen the letter and had no prior knowledge of its existence. He renewed his motion for a mistrial based on the prosecution’s failure to disclose the letter. The district court denied the motion. Trial resumed and defense counsel continued his cross-examination of the witness aided by the letter which he had just received.

On appeal, the State concedes that it had an interview and agreement with the witness. The State also concedes that it did not disclose the interview or the written agreement prior to trial but offers no explanation for why the letter was not disclosed. There is no question that the letter was impeachment evidence falling within disclosure requirements and the State was required to disclose it. However, the delayed disclosure of Brady materials is not always grounds for reversal. As long as disclosure is made before it is too late for the defendant to make use of the evidence, due process is satisfied. 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. The letter setting forth the State’s offer to The witness in exchange for his testimony was disclosed during Appellant’s trial and defense counsel had the opportunity to cross-examine The witness about it and to impeach his credibility in closing argument. Under these circumstances there was no due process violation.

However, the county attorney and the deputy whose name appears under the signature line of the letter at issue tried this case. Both were present in the courtroom during the lengthy discussion in which defense counsel argued that it was inconceivable that there was no agreement and the district court stated it had to have proof. Neither disclosed the existence of the letter. Instead, the county attorney implied there was nothing in writing other than his notes from the meeting with the witness. Given these circumstances, the matter is referred to the Wyoming State Bar for investigation by Bar Counsel.

Appellant has not met her burden of proving a disclosure violation occurred depriving her of due process. To the extent the district court’s dismissal of the attempted first degree murder charge without prejudice suggests she can be re-prosecuted for attempted manslaughter, the order did not violate the double jeopardy clause. To the extent the dismissal without prejudice suggests she can be re-prosecuted for attempted first or second degree murder, the order violated the double jeopardy clause. The judgment on the jury verdict is affirmed and the matter is remanded for entry of an order consistent with this opinion.

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