Summary 2011 WY 156

Summary of Decision November 16, 2011


[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

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

Case Name: Garner v. State

Citation: 2011 WY 156

Docket Number: No. S-11-0119

URL: http://www.blogger.com/goog_1393292901

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.

Affirmed.

J. Burke delivered the opinion for the court.

Summary 2011 WY 132

Summary of Decision September 20, 2011


[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

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

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.

Summary 2011 WY 129

Summary of Decision September 16, 2011


[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

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

Case Name: Harrell v. State

Citation: 2011 WY 129

Docket Number: S-11-0035

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464369

Appeal from the District Court of Campbell County, Honorable Michael N. Deegan, Judge

Representing Appellant (Defendant): Diane M. Lozano, State Public Defender; Tina N. Olson, Appellate Counsel; and Kirk A. Morgan, 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; and Leda M. Pojman, Senior Assistant Attorney General.

Date of Decision: September 16, 2011

Facts: After being convicted of rape, kidnapping, and assault, Appellant argues on appeal that the district court abused its discretion when it did not allow him to introduce evidence regarding a previous battery charge

Issues: Whether the district court erred when it denied Appellant’s request to admit evidence pertaining to a prior arrest, after the State’s witness opened the door by mentioning the arrest, in violation of the court’s previous order.

Holdings: Before trial, the district court granted the State permission to elicit testimony that law enforcement went to the victim’s house that day because they had been informed that Appellant’s truck was parked there, and they knew about the protection order. Appellant was arrested for violating that order. Also, testimony was allowed that the victim, that same day, had requested dismissal of the protection order. In regard to the protection order evidence being admitted, defense counsel requested that Appellant be allowed to discuss the basis of that protection order. Counsel assumed that the order stemmed from a prior incident that led to a felony battery charge for which Appellant had just been acquitted. In response to defense counsel’s request, the State objected because it was introducing evidence of the protection order only to explain the basis for Appellant’s arrest. The court ruled it would not permit any testimony about Appellant’s earlier battery charge and acquittal, finding both unrelated to the instant case.

After the arresting officer completed his testimony and was released from his subpoena, defense counsel complained that his testimony let the jury “know everything” about the prior arrest for battery, except that Appellant had been acquitted. The State disagreed, noting that it had introduced no evidence whatsoever that Appellant had been charged with battery, and that defense counsel could have cross-examined the officer to clarify his direct testimony. Furthermore, the State assured the district court that it had instructed its witnesses not to comment on the earlier arrest, and that it “jumped in there and moved on with the testimony” to the best of its ability. The district court determined that the State did “its best,” and “nothing intentional happened here.” Eventually, the district court ruled that Appellant’s acquittal of the battery was inadmissible and pointed out that Appellant did not contemporaneously object to the officer’s testimony, that the officer was unsure of what exactly prompted the February arrest, and that it would entertain a cautionary instruction regarding the officer’s testimony if drafted by defense counsel. Indeed, a curative instruction was developed, and the jury was subsequently instructed to disregard the testimony about the earlier arrest in its entirely in reaching its verdicts.

Appellant argues that his sixth amendment right to compulsory process was violated because he was deprived of testimony that was vital, material, and relevant to his defense. He argues that the evidence of his acquittal was relevant in this case for two reasons: First, he contends that “[d]emonstrating that the officer was mistaken,” with respect to his belief that Appellant was arrested for violating a protection order rather than a battery, “demonstrates that he was not as careful in his recollection of the event as he purported,” and thus Appellant could have used the evidence to impeach the officer’s testimony; and second, the district court’s denial left the jury with “negative,” and to some extent, “inaccurate” information about him. Had he been able to introduce the battery evidence, “it would have alleviated the problem associated with the admissibility of this previously ruled prejudicial and irrelevant 404(b) evidence.”

Appellant’s arguments were not persuasive. The evidence would not have been proper impeachment evidence because the officer was only relaying what the victim had told him. The officer was not himself unclear or unsure – he was only repeating the victim’s statement. Also, regarding the impressions left with the jury, the State points out that neither party sought to introduce under W.R.E. 404(b), evidence of the arrest for violating a protection order because no such arrest occurred. Inasmuch as Appellant’s arguments were not persuasive, there was not a showing of prejudice in this case.

The district court did not abuse its discretion when it denied Appellant the opportunity to introduce evidence that he had been previously acquitted of battery, and Appellant suffered no prejudice.

Affirmed.

J. Hill delivered the opinion for the court.

Summary 2011 WY 113

Summary of Decision July 25, 2011

[SPECIAL NOTE:  This opinion uses the "Universal Citation."  It was given an "official" citation when it is issued.  You should use this citation whenever you cite the opinion, with a P.3d parallel citation.  You will also note when you look at the opinion that all of the paragraphs are numbered.  When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number.  The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance] 

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

Case Name: Michael Darren Downing v. The State of Wyoming

Citation:  2011 WY 113

Docket Number: S-10-0128

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464102

Appeal from the District Court of Natrona County the Honorable W. Thomas Sullins, Judge

Representing Appellant (Petitioner): Donald L. Fuller and Ian K. Sandefer of Krampner, Fuller & Associates, L.L.C., Casper, Wyoming.  Argument by Mr. Sandefer.

Representing Appellee (Respondent): Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Leda M. Pojman, Senior Assistant Attorney General.  Argument by Ms. Pojman.

Date of Decision: July 25, 2011

Facts: On November 12, 2008, a confidential informant (the CI) working with the Wyoming Division of Criminal Investigation (DCI), made a recorded telephone call to the appellant to arrange the illegal purchase of morphine pills.  The CI was then given $1,800 in “buy money” and driven to JC’s house, where the CI allegedly gave the buy money to the appellant in exchange for 18 morphine pills.  Present at the house in addition to the appellant were JC and SM.  The CI was “wired” during the transaction, but background noise diminished the quality of the recording.  The buy money was not recovered because a search warrant was not immediately executed. After a jury trial, the appellant was convicted of one count of unlawful delivery of a controlled substance, morphine.  He appealed that conviction, challenging several district court rulings and the competence of defense counsel, and alleging prosecutorial misconduct, as well as cumulative error. 

Issues: The appellant presented ten issues for review, but the Court addressed only the single issue found to be dispositive: Whether the district court abused its discretion in prohibiting the appellant from producing evidence attacking the credibility of a confidential informant in support of the appellant’s theory of the case.

Holdings: The appellant alleged that the district court abused its discretion by denying his pretrial motion seeking discovery of “other buys” in which the CI participated, and by excluding at trial evidence of other such buys.  The appellant contended that these rulings prevented the jury from hearing relevant evidence of his theory of defense that the CI was “conning” DCI, prevented the jury from hearing evidence that affected the CI’s credibility, and violated this Court’s prior rulings, discussed below, wherein we held that W.R.E. 403 and 404 were not to be used to prevent a criminal defendant from presenting a defense.  Stated succinctly: the Court reversed in Edwards because the district court applied W.R.E. 403 balancing to exclude evidence relevant to the theory of defense; the Court reversed in Hensley because of undisclosed impeachment evidence concerning a CI; and the Court reversed in Dysthe, at least in part, because the district court prohibited the defendant from cross-examining a State witness where the State’s case relied heavily on that witness’s credibility.  The Court cannot distinguish those cases from the present case.  If the Court assumes that the “damaging potential” of the proposed cross-examination was realized; that is, if the Court assumes that cross-examination of the CI would have tended to prove that he was “conning” DCI, the Court cannot say that prohibiting the cross-examination was harmless error beyond a reasonable doubt.  The jury may well have drawn negative inferences from such cross-examination, leading to a different verdict.  As stated in Hannon v. State, “[c]ounsel should be allowed to ‘expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.’”  2004 WY 8, ¶ 22, 84 P.3d 320, 331-32 (Wyo. 2004) (quoting United States v. DeSoto, 950 F.2d 626, 629 (10th Cir. 1991)).  Reversed and remanded for a new trial.