Hardman v. State

• Decision Date: 24 January 2020
• Docket Number: S-19-0092
• Citation: 456 P.3d 1223
• Parties: Devin Jay HARDMAN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

456 P.3d 1223

Devin Jay HARDMAN, Appellant (Defendant),

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

S-19-0092

Supreme Court of Wyoming.

January 24, 2020

Representing Appellant: R. Michael Vang, R. Michael Vang, P.C., Laramie, Wyoming. Argument by Mr. Vang.

Representing Appellee: Bridget Hill, Wyoming Attorney General; Jenny L. Craig, Deputy Attorney General; Christyne M. Martens, Senior Assistant Attorney General; Timothy P. Zintak, Assistant Attorney General. Argument by Mr. Zintak.

Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.

GRAY, Justice.

[¶1] A jury convicted Devin Hardman of two counts of operating a vehicle while under the influence of alcohol pursuant to Wyo. Stat. Ann. § 31-5-233(b)(i) (driving a vehicle while his blood alcohol concentration (BAC) was 0.08% or more) and Wyo. Stat. Ann. § 31-5-233(b)(iii) (driving while under the influence of alcohol to a degree which rendered him incapable of driving safely). He appeals, claiming the admission of his BAC was error because the State failed to establish his blood analysis was performed according to methods approved by the Wyoming Department of Health, as required by Wyo. Stat. Ann. § 31-6-105(a). Mr. Hardman argues the admission of his BAC results prejudiced him as to both charges brought by the State. We affirm.

ISSUES

[¶2] The issues are:

1. Did the district court abuse its discretion when it admitted evidence of Mr. Hardman's BAC without requiring the State to produce the entire standard operating procedures manual and the linearity studies from the Wyoming Chemical Testing Program's calibration of the blood testing equipment?

2. Was Mr. Hardman denied due process or an opportunity to conduct an effective cross-examination at trial?

FACTS

[¶3] The facts leading to Mr. Hardman's arrest are not contested. On the night of August 12, 2015, Mr. Hardman was driving and caused an automobile accident on U.S. Highway 89 just outside of Afton, Wyoming. The driver of the other vehicle suffered a broken femur

and lacerations on his right knee. The injuries eventually required surgery.

[¶4] Deputy John O'Connor of the Lincoln County Sheriff's Office was called to the scene. When Deputy O'Connor approached Mr. Hardman, he observed Mr. Hardman's eyes were bloodshot and glassy, his speech was slow and slurred, and he smelled like alcohol. Mr. Hardman admitted to consuming one beer and agreed to a field sobriety test. After Mr. Hardman failed three standard field sobriety tests,¹ Deputy O'Connor conducted a portable breath test which indicated the presence of alcohol. Deputy O'Connor arrested Mr. Hardman and transported him to the Afton sheriff's office.

[¶5] When they arrived at the sheriff's office, Deputy O'Connor read Mr. Hardman the Wyoming implied consent advisement and asked him to take a quantitative breath test. Mr. Hardman refused. Deputy O'Connor then successfully applied for a search warrant for a blood test and transported Mr. Hardman to the Star Valley Medical Center where he observed Angela Davis, a phlebotomist technician, draw Mr. Hardman's blood using a Wyoming blood draw kit. Deputy O'Connor then sealed and signed the blood samples and left them at the sheriff's office to be mailed the next day.

[¶6] Mr. Hardman's blood samples arrived at the Wyoming Chemical Testing Program's (Testing Program) laboratory in Cheyenne on August 17, 2015. The samples were logged in by an evidence technician, given a bar code and number for identification, and refrigerated. Moss Kent, a forensic toxicologist, tested the samples on August 18 and 19, 2015.² Each sample was tested twice. Mr. Hardman's blood samples tested positive for alcohol with BACs of 0.1064 and 0.1053. Throughout the testing process, Mr. Kent documented the procedures, the equipment calibrations, and the results. All documentation was contained in a litigation support package (LSP) which was provided to the State and Mr. Hardman.³

[¶7] After receiving the LSP, Mr. Hardman filed several requests for further discovery and moved to suppress the BAC test results, claiming the Testing Program's methodology was flawed under Daubert v. Merrell Dow Pharm., Inc. , 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993).⁴ Eventually, the parties whittled Mr. Hardman's discovery to requests for: 1) the Testing Program's standard operating procedures (SOP) for chain of custody, storage, and refrigeration of blood samples; 2) the certificate of analysis relating to the control samples used during Mr. Hardman's test; and 3) the linearity studies used to validate the single point calibrator used in analyzing Mr. Hardman's blood samples. At a status hearing, the State informed the district court there were no SOPs for blood sample chain of custody, storage, or refrigeration. The certificate of analysis from the State's supplier of control materials was available and would be produced. The State argued the linearity study (used to determine reportable ranges when measuring equipment is placed into use) was an equipment control measure, and it was not used as a specific element of Mr. Hardman's test—therefore, the request exceeded discovery requirements under Anderson v. State , 2014 WY 13, ¶ 14, 317 P.3d 1108, 1113–14 (Wyo. 2014) (holding that "[t]he State only must provide information to the appellant related to his own chemical tests, nothing more"). The State asserted because the linearity study was not a control used for Mr. Hardman's blood test, the information was not material to his case.

[¶8] On January 26, 2017, the district court held a pre-trial hearing regarding the admissibility of Mr. Hardman's BAC. Mr. Kent, the State's trial expert, testified he had conducted Mr. Hardman's blood analysis and detailed the procedure he used in reaching his conclusion. Janine Arvizu, Mr. Hardman's trial expert, testified the Testing Program's procedures were not scientifically valid. After hearing from both experts, the district court denied Mr. Hardman's request for further discovery and ruled the BAC evidence would be admitted at trial.⁵

[¶9] The State originally charged Mr. Hardman with violation of Wyo. Stat. Ann. § 31-5-233(b)(i), driving a vehicle while his BAC was 0.08% or more. The State later added an alternative charge under Wyo. Stat. Ann. § 31-5-233(b)(iii), alleging he was driving while under the influence of alcohol to a degree which rendered him incapable of driving safely. In a special verdict form, the jury found Mr. Hardman guilty of both charges. The district court merged the charges and sentenced Mr. Hardman to two to five years of incarceration. Mr. Hardman timely appeals.

DISCUSSION

I. Did the district court abuse its discretion when it admitted evidence of Mr. Hardman's BAC without requiring the State to produce the entire standard operating procedures manual and the linearity studies from the Wyoming Chemical Testing Program's calibration of the blood testing equipment?

[¶10] Mr. Hardman claims that Wyo. Stat. Ann. § 31-6-105(a) and (e) and Wyo. Stat. Ann. § 31-5-233(k) require the State to establish that testing of his blood samples strictly complied with the Testing Program's approved methods. He asserts the district court should have compelled the production of the Testing Program's entire SOP manual and the linearity studies from the testing equipment's initial calibration. He argues these documents are necessary to establish the scientific methods that applied to this case and whether those methods complied with the statutory predicate. He then argues the district court admitted evidence of his BAC without compelling production of these materials, and that without the materials, the State failed to show strict compliance with Testing Program standards and consequently failed to provide sufficient evidence proving his BAC was 0.08 or higher beyond a reasonable doubt.

A. Standard of Review

[¶11] "The trial court has broad discretion in controlling discovery." Trusky v. State , 7 P.3d 5, 11 (Wyo. 2000) ; Glob. Shipping & Trading, Ltd. v. Verkhnesaldincky Metallurgic Co. , 892 P.2d 143, 145–46 (Wyo. 1995). "This Court reviews a trial court's discovery ... rulings under the abuse of discretion standard." Nelson v. State , 2009 WY 37, ¶ 12, 202 P.3d 1072, 1075 (Wyo. 2009). The trial court's decision addressing the admissibility of evidence will also be set aside only for an abuse of discretion. Requejo v. State , 2019 WY 44, ¶ 7, 439 P.3d 747, 749 (Wyo. 2019). A trial court abuses its discretion if we find it could not reasonably conclude as it did; we will not reverse its decision if there is a legitimate basis for its ruling. Id. The party challenging the trial court's decision has the burden of showing an abuse of discretion. Anderson , ¶ 11, 317 P.3d at 1113.

B. Analysis

[¶12] A criminal defendant does not have a general constitutional right to discovery. Gale v. State , 792 P.2d 570, 577 (Wyo. 1990) ; Capshaw v. State , 714 P.2d 349, 351 (Wyo. 1986). "[W]hile a defendant may request or demand certain information from the State, he is entitled to the information only insofar as required by statute, rule or case law." Ceja v. State , 2009 WY 71, ¶¶ 11–13, 208 P.3d 66, 68 (Wyo. 2009). In this case, Wyo. Stat. Ann. § 31-6-105(e), W.R.Cr.P. Rule 16, and Anderson define the scope of discovery to which Mr. Hardman is entitled.

[¶13] Wyo. Stat. Ann. § 31-6-105(e) provides: "Upon the request of a person who undergoes a chemical test or tests as required by a peace officer, full information concerning the test or tests shall be made available to the person or his attorney." Wyo. Stat. Ann. § 31-6-105(e) (LexisNexis 2019). In Anderson , we addressed the requirements of Wyo. Stat. Ann. § 31-6-105(e) and determined:

Wyo. Stat. Ann. § 31-6-105(e) [is] clear and unambiguous. The State only must provide information to the appellant related to his own chemical tests, nothing more. That is, "full information concerning the test or tests" taken by the appellant. To decide differently would require us to

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