In re Mm

• Citation: 202 P.3d 409,2009 WY 28
• Decision Date: 03 March 2009
• Docket Number: No. S-08-0120.,S-08-0120.
• Parties: In the Interest of MM, a Minor. MM, Appellant (Respondent), v. The State of Wyoming, Department of Family Services, Appellee (Petitioner).
• Court: United States State Supreme Court of Wyoming

202 P.3d 409

2009 WY 28

In the Interest of MM, a Minor.

MM, Appellant (Respondent), v. The State of Wyoming, Department of Family Services, Appellee (Petitioner).

No. S-08-0120.

Supreme Court of Wyoming.

March 3, 2009.

Representing Appellant: David M. Clark of Worrall & Greear, P.C., Worland, Wyoming.

Representing Appellee: Bruce A. Salzburg, Wyoming Attorney General; Robin Sessions Cooley, Deputy Attorney General; Jill E. Kucera, Senior Assistant Attorney General; Elizabeth B. Lance, Assistant Attorney General. Argument by Ms. Lance.

Guardian Ad Litem: Andrea L. Earhart of McCarty and Reed, Cody, Wyoming.

Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.

KITE, Justice.

[¶ 1] MM (Father) appeals from the adjudication order incorporating the jury's verdict that MM (the child) was abused while in his custody. He claims the juvenile court erred by refusing to dismiss the case because the State failed to timely disclose exculpatory evidence. We conclude that the juvenile court properly addressed, pursuant to the Wyoming Rules of Procedure for Juvenile Courts, the State's failure to disclose the evidence by ordering production of the information to Father. In light of the State's production of the evidence to Father prior to trial and the strength of the State's case, we further conclude Father failed to show a violation of his due process rights. Consequently, we affirm.

ISSUE

[¶ 2] Father presents a single issue on appeal:

Whether the District Court erred by refusing to dismiss the case for the State's failure to timely disclose exculpatory evidence?

The State and guardian ad litem present similar issues.

FACTS

[¶ 3] On October 12, 2007, the child's daycare provider reported to authorities that the two year old child's vaginal area "appeared to be swollen and bruised" and she had a "goopy" vaginal discharge. A Cody Police Department detective went to the daycare and looked at the reported injury. She took the child into protective custody and arranged for her to be transported to the emergency room at the local hospital.

[¶ 4] The emergency room physician performed a sexual assault examination. The doctor noted systemic discoloration of the child's labia compatible with potential sexual assault and recommended that the child be seen by her pediatrician. Photographs were taken of the child's genitals during the emergency room examination.

[¶ 5] On October 16, 2007, the child was examined by her pediatrician. He did not see any bruising or discoloration of the child's genitals. The pediatrician did, however, note that she had labial laxity which was a change from the last time he had examined her. He considered the change to be a "red flag" for abuse. He stated the child's condition was consistent with non-traumatic genital manipulation and penetration.

[¶ 6] The State filed a petition pursuant to Wyo. Stat. Ann. § 14-3-403, et. seq. (LexisNexis 2007) alleging the child had been abused. Father and VM (Mother) denied the allegations, and a trial was scheduled for February 7 and 8, 2008. A few days prior to the trial, Mother's counsel received a police report which referred to a telephone conversation between the State and the Kempe Children's Center in Colorado on December 12, 2007. The State apparently contracted with the Kempe Children's Center for consultations in child abuse cases. The police report indicated that, after reviewing the photographs of the child's genitals, a doctor with the Kempe Children's Center could not see an injury to the child. The report also stated that the conversation had been recorded by the State.

[¶ 7] Mother and Father filed a motion to dismiss the neglect petition on the basis that the recording included exculpatory evidence and the State had failed to disclose it in a timely manner as required by the Wyoming Rules of Procedure for Juvenile Courts. The juvenile court denied the motion to dismiss but ordered the State to produce the exculpatory portions of the recording to the respondents. The State produced the entire recording to the respondents on the day before the trial commenced. Over the State's objection, the recording was admitted as evidence at trial and the entire conversation was played for the jury.¹

[¶ 8] The jury returned its verdict finding the allegations that the child was abused while in the custody of Mother and Father to be true, and the juvenile court entered an adjudication order consistent with the jury's verdict. Father appealed.

DISCUSSION

[¶ 9] Father claims that the State's failure to produce the recording of the conversation with the Kempe Children's Center to the respondents in a timely manner violated the Wyoming Rules of Procedure for Juvenile Courts and the constitutional mandates set forth in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). He argues the State's action compelled dismissal of the abuse petition.

[¶ 10] W.R.P.J.C. 3 states in relevant part:

(b) Discovery by the State. The State shall without the necessity of a request by the Respondent, and within thirty (30) days of service of the applicable petition, furnish to the Respondent and guardian ad litem:

(1) Any material or information within the knowledge, possession or control of the State which tends to negate the involvement of the Respondent as to the offense charged;

. . . .

(c) Compliance by the State. The State may comply with this rule by advising the Respondent in writing or on the record, that the Respondent may inspect the discoverable portions of the State's file and by allowing such inspection to occur at any time during normal business hours. However, if the State has any exculpatory information specified in this Rule, the State shall promptly furnish such information to the Respondent, whether or not the Respondent has made the inspection provided for by that subsection.

(d) Matters Not Subject to Discovery. This section does not require a party to disclose:

(1) Any documents to the extent that they contain the opinions, theories, conclusions, or other work product;

. . . .

(f) Procedure for Discovery, Time. The State shall make the disclosure required under this Rule, and may request reciprocal discovery within thirty (30) days from the service of the petition. The Respondent shall furnish the discovery required under this Rule within thirty (30) days after a request is made. The court, for good cause shown, may extend the time for discovery. If discovery is not furnished as required, a motion to compel discovery may be filed which shall specify the items which have not been furnished. A hearing shall be held no later than three (3) days after the motion is filed. If, at any time during the proceedings, it is brought to the attention of the court that a party has failed to comply with this Rule or an order issued under this Rule, the court may:

1. Order such party to permit the discovery of the matters not previously disclosed;

2. Strike the testimony to which the undisclosed matter relates;

3. Grant a reasonable continuance;

4. Prohibit the party from introducing in evidence the matter not disclosed;

5. Grant a mistrial; or

6. Enter such other order as may be appropriate under the circumstances.

(g) Continuing Duty to Disclose. If, subsequent to compliance with a request made under this Rule or with any order compelling discovery, a party learns of additional information previously requested and required to be furnished, he shall promptly furnish the information to the other party or his counsel. If the additional information is learned during a hearing, he shall, in addition to furnishing the information promptly to the other party or his counsel, notify the court that such matter is being furnished.

. . . .

(j) Timely Disclosure Required. All matters and information to which a party is entitled must be disclosed in time to permit its beneficial use.

[¶ 11] We interpret court rules applying the same principles used to interpret statutes. See, Cotton v. McCulloh, 2005 WY 159, ¶ 14, 125 P.3d 252, 257-58 (Wyo.2005). See also, Andersen v. Hernandez, 2005 WY 142, ¶ 7, 122 P.3d 950, 951 (Wyo.2005). Our rules of statutory construction are well-known:

We first decide whether the statute is clear or ambiguous. This Court makes that determination as a matter of law. A "statute is unambiguous if its wording is such that reasonable persons are able to agree as to its meaning with consistency and predictability." Allied-Signal, Inc. [v. Wyoming State Board of Equalization], 813 P.2d [214,] 220 [(Wyo.1991)]. A "statute is ambiguous only if it is found to be vague or uncertain and subject to varying interpretations." 813 P.2d at 219-20.

If we determine that a statute is clear and unambiguous, we give effect to the plain language of the statute. . . . We construe the statute as a whole, giving effect to every word, clause, and sentence, and we construe together all parts of the statute in pari materia.

State Department of Revenue and Taxation v. Pacificorp, 872 P.2d 1163, 1166 (Wyo.1994). If we determine that the statute is ambiguous, we resort to general principles of statutory construction to determine the legislature's intent. State v. Bannon Energy Corporation, 999 P.2d 1306, 1308-09 (Wyo.2000) (some citations omitted); see also Wyodak Resources Development Corporation v. Wyoming Department of Revenue, 2002 WY 181, ¶ 9, 60 P.3d 129, ¶ 9 (Wyo.2002).

Cotton, ¶ 14, 125 P.3d at 257-58 (some citations omitted).

[¶ 12] Rule 3(b)(1) clearly required the State to notify the respondents of all information which tended to negate their involvement in the charged offense. Rule 3(c) required the State to promptly furnish any exculpatory information to the respondents, and Rule 3(g) made the duty to disclose continuing.

[¶ 13] In the recording of the telephone conversation, a Kempe Children's Center doctor repeatedly stated that he could not see any injury to the child in the photos provided to him. In fact, he went...