Marshall Louis Wash. v. State
| Decision Date | 20 September 2011 |
| Docket Number | No. S–11–0041.,S–11–0041. |
| Citation | 261 P.3d 717,2011 WY 132 |
| Parties | Marshall Louis WASHINGTON, Appellant (Defendant),v.The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
OPINION TEXT STARTS HERE
Representing Appellant: Diane M. Lozano, State Public Defender; Tina N. Olson, Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel.Representing Appellee: 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.Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.VOIGT, Justice.
[¶ 1] The appellant, Marshall Washington, 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 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.
[¶ 2] Finding no reversible error, we affirm the conviction and remand to the district court to amend the Modified Judgment and Sentence for compliance with the Wyoming Rules of Criminal Procedure.
[¶ 3] 1. Did the district court improperly deny discovery of the CI agreement and the CI policy manual?
2. What is the effect of the noncompliance with W.R.Cr.P. 32 in the Modified Judgment and Sentence?
[¶ 4] The appellant was arrested on March 29, 2010, for shoplifting. While in jail on that charge he indicated to the arresting officer willingness to serve as a confidential informant. DCI agents contacted him later that same day to determine the extent of the information that the appellant would be able to provide. The agents informed the appellant that he could assist them by participating in a “controlled buy” 1 and that he should contact them when released from jail.
[¶ 5] On March 31, 2010, after his release on bond, the appellant met the agents at the DCI office. At that time, the agents explained the terms of the CI agreement, which the appellant later signed. The appellant was given a copy of the agreement to follow along as one of the agents read through and explained the items included in the agreement. The appellant, however, was not allowed to keep this copy. Of particular importance to this appeal was item number 4, which read as follows: “Do you understand that you are not to handle any contraband or illegal substances, at any time, unless specifically authorized to do so by an agent or officer of this agency?” During this meeting, the agent explained to the appellant that he did not have authorization to buy drugs unless specifically instructed to do so.
[¶ 6] On April 20, 2010, the appellant returned to the DCI office to participate in a controlled buy operation. After explaining their expectations to the appellant, the agents informed the appellant that they would need to search both his person and his vehicle because the vehicle would be used in the course of the operation. At that point, the appellant appeared to become nervous and told the agents that they would find a marijuana cigarette, crack pipes, and a syringe in his vehicle. While searching the appellant's car, the agents also found a black sock under the driver's seat containing crack cocaine, methamphetamine, marijuana, clonazepam, hydrocodone, methadone, and oxycodone. The appellant was arrested and charged with seven counts of possession of a controlled substance pursuant to Wyo. Stat. Ann. § 35–7–1031(c) (LexisNexis 2011). He pled not guilty to those charges.
[¶ 7] Prior to trial, the appellant moved to compel discovery of DCI's CI policy manual. The State refused to provide the appellant with the manual asserting lack of relevance. At the hearing on the Motion to Compel Discovery, the district court conducted an in camera review of the CI policy manual. Based on that review, the district court denied the appellant's motion. Both the CI policy manual and the CI agreement signed by the appellant were sealed for appellate purposes; however, the signed CI agreement was left available to the parties for use at trial.
[¶ 8] At trial, the appellant's defense was that he was under the mistaken belief that he had been authorized by the DCI agents to purchase drugs on his own. The jury found the defendant guilty on all charges.
[¶ 9] 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. 32.2
[¶ 10] The appellant timely appealed.
[¶ 11] Discovery rulings will be reviewed by this Court under the abuse of discretion standard. Ceja v. State, 2009 WY 71, ¶ 11, 208 P.3d 66, 68 (Wyo.2009); Almada v. State, 994 P.2d 299, 303 (Wyo.1999); Dodge v. State, 562 P.2d 303, 307 (Wyo.1977). “On review, our primary consideration is the reasonableness of the trial court's decision.” Nelson v. State, 2009 WY 37, ¶ 12, 202 P.3d 1072, 1075 (Wyo.2009); Proffit v. State, 2008 WY 103, ¶ 12, 191 P.3d 974, 977 (Wyo.2008). The party challenging the district court's decision, here the appellant, has the burden to prove an abuse of discretion. Nelson, 2009 WY 37, ¶ 12, 202 P.3d at 1075; Person v. State, 2004 WY 149, ¶ 11, 100 P.3d 1270, 1275 (Wyo.2004).
[¶ 12] Whether the district court's Modified Judgment and Sentence complied with the requirements of W.R.Cr.P. 32 and the effects of any noncompliance are questions of law that are reviewed de novo. Dunmire v. Powell Family of Yakima, LLC (In re Kite Ranch, LLC), 2008 WY 39, ¶ 17, 181 P.3d 920, 925 (Wyo.2008).
Did the district court improperly deny discovery of the CI agreement and the CI policy manual?
[¶ 13] The appellant contends on appeal that he was improperly denied discovery of two documents: the CI policy manual and his signed CI agreement. He generally argues that denial of discovery of both items “prevented his attorney from adequately preparing for trial and presenting his defense.” His defense was that he was led to believe that the extent of his cooperation would be measured by the amount of drugs he could find. He claims that these documents supported his belief and that they would have been useful in cross-examination of the DCI agents and establishing his defense.
[¶ 14] The appellant's argument is flawed for a number of reasons. Regarding the signed CI agreement, nothing in the record indicates that the appellant was actually denied access to that document. 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.
[¶ 15] We turn now to the CI policy manual. The district court clearly denied the appellant's discovery request for that document. We must determine whether this denial was an abuse of discretion. The appellant's primary contention on appeal is that the CI policy manual is a public document subject to the Wyoming Public Records Act (WPRA) and therefore should have been discoverable. This issue is raised for the first time on appeal. We have often said we will not address matters that were not raised below.
We strongly adhere to the rule forbidding us to consider for the first time on appeal issues that were neither raised in, nor argued to, the trial court, except for those issues which are jurisdictional or are fundamental in nature. We follow this rule because it is unfair to reverse a ruling of a trial court for reasons that were not presented to it, whether it be legal theories or issues never formally raised in the pleadings nor argued to the trial court.
Erwin v. State, DFS, 2010 WY 117, ¶ 15, 237 P.3d 409, 414 (Wyo.2010) (internal citations and quotations omitted). See also Whitten v. State, 2005 WY 55, ¶ 24, 110 P.3d 892, 898 (Wyo.2005); Kitzke v. State, 2004 WY 9, ¶ 13, 84 P.3d 950, 953 (Wyo.2004).
[¶ 16] Because the question of whether the CI policy manual was subject to disclosure under the WPRA and thus should have been admissible at trial was not raised below, we will not directly address that issue in this appeal. See Mary's Bake Shoppe v. City of Cheyenne, 2008 WY 116, ¶ 31 n.5, 193 P.3d 252, 259 n.5 (Wyo.2008) ().
[¶ 17] While we will not address the appellant's new appellate arguments, we will examine the admissibility of the CI policy manual,...
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