State v. Mistie Dee Swearingen

• Docket Number: 20210541-CA
• Decision Date: 21 December 2023
• Parties: State of Utah, Appellee, v. Mistie Dee Swearingen, Appellant.
• Court: Utah Court of Appeals

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2023 UT App 155

State of Utah, Appellee,
v.
Mistie Dee Swearingen, Appellant.

No. 20210541-CA

Court of Appeals of Utah

December 21, 2023

Seventh District Court, Castle Dale Department The Honorable Jeremiah Humes No. 201700094

Wendy Brown, Debra M. Nelson, and Benjamin Miller, Attorneys for Appellant

Sean D. Reyes and Natalie M. Edmundson, Attorneys for Appellee

Judge Michele M. Christiansen Forster authored this Opinion, in which Judges David N. Mortensen and Ryan M. Harris concurred.

OPINION

CHRISTIANSEN FORSTER, JUDGE

¶1 Mistie Dee Swearingen was charged with four counts of distributing or arranging to distribute a controlled substance for her involvement in three undercover drug sales. A jury convicted her on all counts, based largely on the testimony of a confidential informant. Swearingen appeals her convictions, asserting that the trial court erred by excluding evidence concerning the nature of the relationship between the confidential informant and law enforcement. While she also raises other claims of error, we do not address them because we conclude that the trial court erroneously excluded evidence of bias regarding the State's main witness and we agree that Swearingen was prejudiced by this exclusion.

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Accordingly, we vacate Swearingen's convictions and remand her case for a new trial.

BACKGROUND^[1]

¶2 In 2018, a detective with the Emery County Sheriff's Office (Detective) hired an "extremely hard work[ing]," "good kid" with a "little drug problem" to act as a confidential informant (Informant) who would assist law enforcement officers in conducting controlled drug buys. Detective often hired informants to assist his law enforcement work; under the terms of the typical arrangement, an informant would agree to help with "controlled drug buys" and Detective would agree to "lessen the charge of [the] specific crime that they were arrested for." But in 2019, at the time of the controlled buys at issue in this case, Informant was not working off any pending criminal charges, and so Detective offered a different arrangement: he agreed to pay Informant $100 for each drug buy he completed.

¶3 To initiate the buys, Informant texted several individuals, including Swearingen, offering to purchase methamphetamine or heroin. Swearingen, a longtime acquaintance of Informant and fellow drug user, "happened to be somebody that replied" as willing to sell those substances. Soon after receiving his text, Swearingen met with Informant three times to sell controlled substances. For each controlled buy with Swearingen, Informant wore a listening device and was in contact with police officers before and after visiting Swearingen's residence. Law enforcement did not observe the actual exchange of drugs and money between Informant and Swearingen; while Informant wore a listening device during all the buys, the audio was inconsistent and at times unclear. Detective thought he

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recognized Swearingen's voice on one of the recordings but acknowledged that he did not hear any specific discussion about the drug deal taking place.

¶4 At trial, Detective testified that when he uses "a confidential informant for drug buys, [he] want[s] to keep them as safe . . . as [he] can." According to Detective, the State would not file charges against the alleged drug seller until the "particular informant is not active anymore as far as buying drugs." Detective explained, "We'll wait for a time for the heat, so to speak, to die down with that individual, and then we'll file charges."

¶5 Approximately a year after Informant's three controlled buys from Swearingen, the State charged Swearingen with four counts of distributing or arranging to distribute a controlled substance. Swearingen pleaded not guilty, and the case went to trial.

¶6 After a jury was empaneled, the State moved to exclude evidence of Informant's criminal history, specifically a drug-related arrest that occurred in 2020, one year after he conducted the controlled drug buys with Swearingen. The State asserted that no charges were filed as a result of Informant's 2020 arrest and that the arrest was not related to Swearingen's charges. The State did acknowledge that Informant had "signed a contract [with police] to work [the drug charges] . . . off" and was never charged after his arrest. The State moved to exclude evidence of Informant's 2020 arrest as irrelevant, because it occurred after the events of Swearingen's case, and as inadmissible under rule 609 of the Utah Rules of Evidence, because the arrest did not result in felony charges (or convictions) and did not involve dishonesty. The State argued that the 2020 arrest had nothing to do with Swearingen and so the prejudicial effect of the evidence "would far outweigh any kind of probative value."

¶7 In response, trial counsel asserted that the evidence of Informant's 2020 arrest should be admitted. Counsel argued,

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[Informant] was working as [an informant] before the alleged incident involving Ms. Swearingen. And the fact that he continued and/or continues to work with . . . law enforcement should definitely be an extremely relevant factor in his credibility. In other words, he may have incentive to . . . testify against Ms. Swearingen in order to . . . support his relationship with the law enforcement . . . . [This] show[s] that he does have [a] motive to . . . make a statement other than the truth today. . . . [T]his is impeachment.

¶8 The court ruled that it would "allow testimony with regard to [Informant's] relationship with law enforcement, his working with law enforcement, [and] the conditions of that arrangement." Nevertheless, the court granted the State's motion in limine, at least in part, and excluded any evidence of the 2020 arrest, concluding that because the 2020 arrest occurred after the 2019 controlled buys at issue in the case, the evidence was irrelevant and therefore inadmissible.

¶9 Ultimately, the jury convicted Swearingen as charged. Swearingen now appeals.

ISSUE AND STANDARD OF REVIEW

¶10 Swearingen asserts, among other things, that the trial court erred in excluding evidence of Informant's 2020 arrest.^[2] Generally,

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trial courts are afforded "a great deal of discretion in determining whether to admit or exclude evidence." State v. Cuttler, 2015 UT 95, ¶ 12, 367 P.3d 981 (quotation simplified). Thus, we review evidentiary determinations for an abuse of discretion. See id. "Legal errors, such as the application of an improper legal standard [in assessing the admissibility of evidence], are usually an abuse of discretion." Northgate Village Dev., LC v. City of Orem, 2019 UT 59, ¶ 21, 450 P.3d 1117 (quotation simplified). Further, we will not reverse an erroneous decision to exclude evidence unless the error is harmful. See State v. Boyd, 2001 UT 30, ¶ 40, 25 P.3d 985 ("Even should we find such error [in the exclusion of evidence], we will only reverse if . . . absent the error there is a reasonable likelihood of an outcome more favorable to the defendant." (quotation simplified)).

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ANALYSIS

I. The Trial Court Erred by Excluding Evidence of Informant's 2020 Arrest

¶11 Relevance is a "very low bar for the admission of evidence." See Harrison v. SPAH Family Ltd., 2020 UT 22, ¶ 71, 466 P.3d 107 (quotation simplified). And evidence that undermines the credibility of a witness is always relevant. See, e.g., Davis v. Alaska, 415 U.S. 308, 316 (1974) ("The partiality of a witness is subject to exploration at trial, and is always relevant as discrediting the witness and affecting the weight of [the witness's] testimony." (quotation simplified) (emphasis added)); accord State v. Hackford, 737 P.2d 200, 203 (Utah 1987). Here, Informant had been arrested for drug possession one year prior to Swearingen's trial but had not been charged with any crime following that arrest. Trial counsel requested the opportunity to explore whether Informant felt pressure to provide testimony favorable to the prosecution lest he face drug-related charges himself. But trial counsel was unable to cross-examine Informant about his 2020 arrest and bring any potential biases about the 2020 events to light because the trial court excluded the evidence of Informant's arrest as irrelevant and inadmissible.

¶12 We agree with Swearingen that the trial court erred in excluding evidence of Informant's 2020 arrest. As we explain below, the evidence is admissible under rules 401, 608(c), and 403 of the Utah Rules of Evidence. Likewise, because the evidence is admissible for a proper non-character purpose, it is not barred by rule 404 as a...