State v. Gardner

• Citation: 2007 UT 70,167 P.3d 1074
• Decision Date: 28 August 2007
• Docket Number: No. 20060281.,20060281.
• Parties: STATE of Utah, Plaintiff and Respondent, v. Randy Shea GARDNER, Defendant and Petitioner.
• Court: Supreme Court of Utah

167 P.3d 1074

2007 UT 70

STATE of Utah, Plaintiff and Respondent, v. Randy Shea GARDNER, Defendant and Petitioner.

No. 20060281.

Supreme Court of Utah.

August 28, 2007.

Mark L. Shurtleff, Att'y Gen., Kenneth A. Bronston, Asst. Att'y Gen., James M. Cope, Salt Lake City, for plaintiff.

Margaret P. Lindsay, Julia Thomas, Orem, Patrick V. Lindsay, Provo, for defendant.

On Certiorari to the Utah Court of Appeals

NEHRING, Justice:

INTRODUCTION

¶1 Randy Shea Gardner attempted to smuggle illegal drugs into the prison facility where he was an inmate. He was convicted of distributing, offering, agreeing, consenting, or arranging to distribute methamphetamine and was sentenced to serve a one-to-fifteen-year prison term, to begin after the prison term he was then serving expired. He challenges that conviction in this appeal. He claims that he was not guilty of the crime because a police informant and an undercover police officer entrapped him.

¶ 2 After he was sentenced, Mr. Gardner appealed. He sought summary reversal of his conviction because the cross-examination testimony of one of the prosecution's key witnesses, Leland Clark, was missing from the record, apparently due to a recording malfunction. Mr. Clark was a prison inmate turned informant who assisted Mr. Gardner with his efforts to bring drugs into the prison. Mr. Gardner argued that the cross-examination of Mr. Clark was key to the success of his entrapment defense and that without it he could not receive a constitutionally adequate appeal. The State countered with a motion to remand to reconstruct the record, which the court of appeals granted after denying Mr. Gardner's motion.

¶ 3 After the trial court conducted a hearing and reconstructed the record, the appeal returned to the court of appeals. The court of appeals decided the appeal without referring to the reconstructed record, holding that it did not need to consider Mr. Clark's reconstructed cross-examination testimony because it was, at best, impeachment evidence and irrelevant to an appeal based on a challenge to the sufficiency of the evidence.

¶ 4 We agree with the court of appeals that when evidence that is allegedly missing from an incomplete record is impeachment evidence rather than substantive evidence, it is appropriate for an appellate court to decide the case without reference to the reconstructed record. Under these circumstances, appellate courts may rely on the presumption that the jury properly took into account conflicting evidence and believed the evidence that supported the verdict. Accordingly, we affirm Mr. Gardner's conviction.

BACKGROUND

¶ 5 Mr. Gardner and Mr. Clark became friends while they occupied adjoining cells and shared the same recreation schedule at the Uintah maximum-security facility of the Utah State Prison. According to Mr. Clark's direct trial testimony, Mr. Gardner told Mr. Clark that his friend "Don" (Donald Buckley, Jr.), a medical technician at the Uintah facility, had delivered unprescribed prescription pain medicine to him several times and that the arrangement presented "a good opportunity to make some money."¹ Mr. Gardner suggested, however, that he did not have anyone to supply illegal narcotics and that the medical technician who had delivered the unprescribed pain medications probably would not do it.

¶ 6 Mr. Clark relayed this information to Kevin Pepper, an investigator for the Department of Corrections, who had an office in the Uintah facility. Mr. Clark and Mr. Pepper had known each other since August 2000, when Mr. Pepper had transported Mr. Clark back to Utah from California. Mr. Pepper directed Mr. Clark to "keep his eyes and ears open" and to further investigate the situation. Mr. Clark had reason to cooperate with prison officials because he wanted to "compact" (transfer) to a prison facility outside of Utah. To this end, he asked Mr. Pepper to pen a letter to the Board of Pardons touting Mr. Clark's cooperation if the investigation was successfully completed² Mr. Pepper then verified that medical technician Donald Buckley was on Mr. Gardner's visiting and telephone lists and that Mr. Buckley had received several calls from Mr. Gardner in the months preceding Mr. Clark's conversation with Mr. Gardner.

¶ 7 When Mr. Clark and Mr. Pepper met again, Mr. Clark relayed that "he had discussed it with [Mr. Gardner] and [Mr. Gardner] wanted to hook up and get a deal going." Mr. Pepper told Mr. Clark to inform Mr. Gardner that he had a source by the name of "Kevin Gilmore" (Mr. Pepper's undercover alias) and to have Mr. Gardner call him using Mr. Clark's prisoner PIN number. Mr. Pepper then officially registered Mr. Clark as a confidential informant.

¶ 8 Later, Mr. Pepper and Mr. Clark had a brief telephone conversation. Mr. Pepper reminded Mr. Clark to have Mr. Gardner contact him. Mr. Pepper also requested a mail cover³ on Mr. Gardner. Mr. Pepper intercepted a letter Mr. Gardner sent to Mr. Buckley in which Mr. Gardner wrote that he knew that Mr. Buckley had "a little [money] problem" and that he "knew a way to help solve that" which was "fairly safe."

¶ 9 Mr. Gardner then used Mr. Clark's PIN number to place a ten-minute recorded call to Mr. Pepper. Mr. Gardner, referring to himself as "Shea," directed Mr. Pepper to call Mr. Buckley, gave him Mr. Buckley's telephone number, and told Mr. Pepper to say, "Shea said to call." Mr. Pepper first mentioned the subject of drugs during that call. Mr. Pepper then asked whether specific quantities of "black" (slang for heroin) or "white" (slang for methamphetamine) would "move" in the prison, and Mr. Gardner indicated that he could "check around."

¶ 10 According to Mr. Clark's testimony, after Mr. Gardner used the number, he reported to Mr. Clark that he and the "supplier" (Mr. Pepper) had talked about getting "cocaine and heroin lined up." Mr. Clark reported that "[Mr. Gardner] was pretty excited about it" and that Mr. Gardner was going to try to enlist the medical technician, Mr. Buckley, to bring the drugs into the prison. Mr. Clark told Mr. Gardner that he would help sell the drugs within the prison and indicated that he wanted to make some money to defray his out-of-state transfer costs. Mr. Clark told Mr. Gardner that he thought it was important to recruit Mr. Buckley. Mr. Gardner mentioned that it might be hard to persuade Mr. Buckley to participate and that if Mr. Buckley did participate, he would likely do it only once.

¶ 11 Mr. Gardner sent Mr. Buckley a letter that gave Mr. Buckley the name and telephone number "for that guy I was talking to you about." Three days later, Mr. Gardner called Mr. Pepper, and Mr. Pepper indicated that he was hesitant to propose the plan to Mr. Buckley, unless Mr. Buckley already knew about it. Mr. Gardner said that Mr. Buckley should have received the letter he had sent a few days earlier. Mr. Gardner then called Mr. Buckley and, according to Mr. Buckley's testimony, told him that he wanted him "to bring a manila envelope into the prison after contacting this person in the letter." Later that afternoon, Mr. Gardner called Mr. Pepper and said, "I called to let you know that I just talked to [Mr. Buckley]." Having been assured by Mr. Gardner that Mr. Buckley had consented to participate in the plan, Mr. Pepper told Mr. Gardner that he would call Mr. Buckley.

¶ 12 In his conversation with Mr. Pepper, Mr. Gardner said that he could "move" either "black" or "brown," which Mr. Pepper testified referred to types of heroin. That night, Mr. Buckley called Mr. Pepper, and when Mr. Pepper told him that he had methamphetamine and heroin to take into the prison, Mr. Buckley immediately refused to become involved. When Mr. Buckley later told Mr. Gardner that he had refused to bring drugs into the prison, Mr. Gardner said that "he understood and he'd take care of it."

¶ 13 Several days later, Mr. Clark called Mr. Pepper and informed him that the operation had been foiled because Mr. Pepper had been exposed as law enforcement.

¶ 14 Mr. Gardner asserted that he had not fully understood the scheme and, to the extent he had understood that drugs would be involved, that he had gone along with it only because he had been cautioned by Mr. Pepper "not to get his a — in a jam" and that he was afraid Mr. Clark and the source could arrange for him to be harmed in prison if he failed to participate. Mr. Clark conceded that he had actively encouraged Mr. Gardner to obtain the contraband, but he insisted that he had not coerced him.

¶ 15 Based on this account of events, the State of Utah charged Mr. Gardner with two counts of distributing, offering, agreeing, consenting, or arranging to distribute a controlled or counterfeit substance, one count for methamphetamine and another for heroin. The magistrate bound Mr. Gardner over for trial. Mr. Gardner filed a motion to dismiss based on an entrapment argument, which the trial court denied following an evidentiary hearing.

¶ 16 Mr. Gardner renewed his entrapment motion at the close of the State's case at his trial. He claimed that the trial court should reconsider the merits of his motion because the trial testimony had revealed more evidence to support his entrapment defense at trial than had been presented at the preliminary hearing. Mr. Gardner also moved for a directed verdict, claiming that the State failed to show an offer, agreement, consent, or arrangement to distribute drugs. The trial court denied both motions. A jury returned a verdict finding Mr. Gardner guilty.

¶ 17 Mr. Gardner moved the court of appeals to summarily reverse his conviction because Mr. Clark's cross-examination testimony did not appear in the record. Although he did not indicate what he believed the missing cross-examination testimony of Mr. Clark contained that would overcome the evidence leading the jury to convict him, Mr. Gardner claimed that the missing evidence created a constitutional defect mandating that his conviction be vacated. The State...