Anderson v. State

• Decision Date: 27 January 2014
• Docket Number: No. S–13–0019.,S–13–0019.
• Parties: Robert Olaf ANDERSON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

317 P.3d 1108

Robert Olaf ANDERSON, Appellant (Defendant),

v.The STATE of Wyoming, Appellee (Plaintiff).

No. S–13–0019.

Supreme Court of Wyoming.

Jan. 27, 2014.

Representing Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; Kirk A. Morgan, Senior Assistant Appellate Counsel. Argument by Mr. Morgan.

Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Jeffrey S. Pope, Assistant Attorney General. Argument by Mr. Pope.

Before KITE, C.J., and VOIGT,^* BURKE, and DAVIS, JJ, and JAMES, D.J.

VOIGT, Justice.

[¶ 1] A jury convicted the appellant of felony driving while under the influence of alcohol. He now challenges two rulings of the district court—one concerning discovery and one concerning the admissibility of evidence—and also alleges his trial counsel was ineffective. Finding no error, we affirm.

ISSUES

[¶ 2] 1. Did the district court abuse its discretion by denying in part the appellant's pretrial Request for IntoxNet Database Pursuant to W.S. § 31–6–105(e) and Proof of Compliance with Statutory Predicate for Admission of a Chemical Test Result Under W.S. 31–6–105(a) ?

2. Did plain error occur, in the form of a violation of the appellant's constitutional right to confrontation, when the State's expert witness testified as to the operation, maintenance, and accuracy of the breath alcohol test machine used in this case?

3. Was the appellant's trial counsel ineffective in not calling an expert witness to testify as to the effect of diabetes on the results of a breath alcohol test?

FACTS

[¶ 3] The underlying facts of the traffic stop and arrest are not particularly material in this case. Suffice it to say that, upon receiving a REDDI ¹ report, a Laramie police officer investigated and eventually arrested the appellant for per se driving while under the influence of alcohol. ² During this process, the appellant “blew” blood alcohol content (BAC) tests that resulted in readings of 0.088% and 0.086%.

[¶ 4] The State charged the appellant with one count of felony driving while under the influence of alcohol (DWUI) and the case proceeded towards trial. During the discovery phase, the appellant requested a substantial amount of information from the State relating to the breathalyzer, an Intoximeter EC/IR II, used to test his breath. The request included: (1) the appellant's breath test results; (2) the appellant's Operational Checklist for Intoximeter EC/IR I or II; (3) the most recent version of the Wyoming Intoximeter EC/IR administrator manual; (4) the complete IntoxNet database in an electronic format for the Intoximeter EC/IR II used in the case (serial number 008087); (5) all monthly logs for the Intoximeter EC/IR II used in the case; (6) all maintenance records for the Intoximeter EC/IR II used in the case; and (7) all Litigation Support Packages that have ever been created for the Intoximeter EC/IR II used in the case. The State provided the appellant with three of these items: his breath test results, the Operational Checklist, and the administrator manual. It also provided the Litigation Support Package for the appellant's case, but none of the packages created in unrelated cases. The State objected to the remaining requests, asserting the appellant had a right only to the information directly related to his case.

[¶ 5] Presented with this discovery dispute, the district court held a hearing, taking testimony from two potential expert witnesses concerning the subject breathalyzer's accuracy. The appellant presented Dr. Citron, an ophthalmologist, and the State presented Michael Moore, the head of Wyoming's chemical testing unit. Dr. Citron testified the general historical information from the IntoxNet database would allow him to decide if the machine was working properly; however, he admitted nothing in the information related to the appellant's test indicated it was rendering inaccurate results. The State's witness, Moore, also testified that his review of the data related to the appellant's tests did not suggest the machine was inaccurate and unreliable. Moore also explained that the required annual certification checks, monthly accuracy checks, and related safeguards ensured the machine's accuracy and reliability.

[¶ 6] Based upon the evidence presented at the hearing and analysis of controlling statutes and rules, the district court issued a clear and cogent order denying the appellant'sdiscovery request, consistent with the State's objection. It explained:

The statutory subsection [Wyo. Stat. Ann. § 31–6–105(e) (LexisNexis 2013) ] relied upon by [the appellant] is clear and unambiguous on its face. It requires the defendant to receive information regarding his chemical test. It does not, however, authorize [the appellant] to receive information regarding any other test conducted by the Intoximeter EC/IR II used in this case. Stated simply, it does not support his request for the remaining items.

(Emphasis in original). The district court also found the quality procedures—annual certification, maintenance program, monthly accuracy checks—provided assurances that “nothing concerning [the appellant's] test warrants questioning the reliability of the Intoximeter EC/IR II used in this case in the manner desired by [the appellant].” Thus, it determined the IntoxNet data and other requests for general information concerning the breathalyzer were “not sufficiently material to the preparation of [the appellant's] defense to require discovery under Rule 16 [of the Wyoming Rules of Criminal Procedure].”

[¶ 7] The case then proceeded to trial, during which the State established that the appellant had driven with a BAC above the legal limit. Particularly, the jury was presented with the appellant's breath tests resulting in readings of 0.088% and 0.086%. The State called Moore as an expert witness to explain the certification, maintenance, and calibration process for the Intoximeter EC/IR II. Moore opined the machine used on the appellant was reliable, basing his opinion on a breadth of available information including its certification records.

[¶ 8] The appellant did not present his own expert, Dr. Citron. Instead, his strategy focused on attacking Moore's credibility. The appellant attempted to show that, even though the machine previously had been certified as being accurate, it still had a propensity of being inaccurate and unreliable. On cross-examination, Moore conceded the subject machine previously had been taken out of service to be repaired and had also registered “mouth alcohol abort” messages on several occasions. But Moore was quick to clarify that a mouth abort message is not “an error in itself.” Rather, such a message “means that there's alcohol in the mouth from some sources and [the machine] detects it and aborts the test, so it will not do an analysis on that subject at that point in time.” Put another way, the machine would display such a message and shut down when it detected possible foreign substances that could taint the test. Ultimately, Moore continued to conclude the machine was reliable.

[¶ 9] The jury found the appellant guilty of felony driving while under the influence of alcohol, in violation of Wyo. Stat. Ann. § 31–5–233(b)(i) (LexisNexis 2013) (fourth or subsequent offense within ten years). The district court imposed a sentence of twenty to twenty-four months incarceration, with credit for time served. This appeal followed.

DISCUSSION

Did the district court abuse its discretion by denying in part the appellant's pretrial Request for IntoxNet Database Pursuant to W.S. § 31–6–105(e) and Proof of Compliance with Statutory Predicate for Admission of a Chemical Test Result Under W.S. 31–6–105(a)?

[¶ 10] Before trial, the appellant filed a Request for IntoxNet Database Pursuant to W.S. § 31–6–105(e) and Proof of Compliance with Statutory Predicate for Admission of a Chemical Test Result Under W.S. 31–6–105(a). The request centered on receiving access to the “IntoxNet” database, which is maintained by the Wyoming Chemical Testing Program. This database contains information on most, if not all, of the previous breath tests performed by Intoximeter EC/IR II machines, including the one used in this case. The appellant asserted his broad request was proper because the accuracy of the machine used was questionable. The State objected, a hearing was held, and after being fully informed, the district court denied the appellant access to the information in dispute. The appellant now argues the district court erred because the information was important to allow for a thorough cross-examinationof the State's witnesses and to ascertain the accuracy of the machine.

[¶ 11] The appellant attempts to style this issue as one involving a Brady violation. See Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). Based on this characterization, he contends our review is de novo. We disagree. “To establish a Brady violation, a defendant must show that the prosecution suppressed evidence, the evidence was favorable to the defendant, and the evidence was material.” Kovach v. State, 2013 WY 46, ¶ 20, 299 P.3d 97, 104 (Wyo.2013) (citations and internal quotation marks omitted). There is no allegation the State suppressed any evidence, which is fundamental for a Brady violation. See Downing v. State, 2011 WY 113, ¶ 10, 259 P.3d 365, 368 (Wyo.2011); DeLoge v. State, 2010 WY 60, ¶¶ 27–30, 231 P.3d 862, 868 (Wyo.2010). The actual issue on appeal is one concerning the district court's ruling on a discovery matter. Discovery rulings are reviewed by this Court under the abuse of discretion standard. Washington v. State, 2011 WY 132, ¶ 11, 261 P.3d 717, 721 (Wyo.2011); Ceja v. State, 2009 WY 71, ¶ 11, 208 P.3d 66, 68 (Wyo.2009). Our primary concern is whether the district court's decision is reasonable. Id.; Nelson v. State, 2009 WY 37, ¶ 12, 202 P.3d...