Appeal from the District Court of Laramie County The Honorable Michael K. Davis, Judge.
The opinion of the court was delivered by: Kite, Chief Justice.
Before KITE, C.J., and GOLDEN, HILL, VOIGT*fn1, and BURKE, JJ.
KITE, C.J., delivers the opinion of the Court; GOLDEN, J., files a specially concurring opinion.
[¶1] A jury found Aubrey Lashawn Lawson guilty of possessing cocaine and methamphetamine with intent to deliver. He appeals, claiming the district court should have granted him a new trial because the prosecutor suppressed exculpatory evidence. He also claims the prosecutor engaged in misconduct by soliciting false testimony. We affirm.
[¶2] Mr. Lawson presents two issues for this Court's determination:
I. Did the trial court improperly deny the new trial motion for Brady violations?
II. Did the prosecutor engage in misconduct by eliciting false testimony?
[¶3] In January of 2008, a Cheyenne resident informed the police department of suspected drug activity at a nearby house. Detective Russell Edwards began conducting surveillance of the residence and observed a high volume of traffic coming and going at all hours. Among those coming and going, Detective Edwards identified individuals known to law enforcement as drug users, some of whom had been involved in past drug investigations. Among those residing at the home, he identified Mr. Lawson; his girlfriend, Amanda Torres; her sister, Robyne Varela; and Angila Bolton.
[¶4] On February 21, 2008, Detective Edwards spoke to a confidential informant, later identified as Ashley Plavsik, who was in the detention center at the time on grand larceny charges. She informed Detective Edwards that Ms. Torres had been selling methamphetamine and cocaine from the residence. Ms. Plavsik said she had purchased cocaine from Ms. Torres on a daily basis between October and December of 2007. She also indicated Ms. Torres kept controlled substances in a pink backpack.
[¶5] After speaking with Ms. Plavsik, Detective Edwards learned that Mr. Lawson and the others had been evicted from the residence. He subsequently learned they had moved to another Cheyenne neighborhood. In March of 2008, Detective Edwards met with a second confidential informant (CI2), whose identity was never disclosed, who said Ms. Torres was the leader of a drug trafficking organization and the others, including Mr. Lawson, sold drugs for her. CI2 claimed to have witnessed both Mr. Lawson and Ms. Bolton selling cocaine for Ms. Torres.
[¶6] During this time frame, two residents in the neighborhood contacted Detective Edwards to report suspected drug activity at the home occupied by Mr. Lawson and Ms. Torres. Detective Edwards began surveillance and on one occasion observed Mr. Lawson and Ms. Torres in the front yard. He saw Ms. Torres retrieve a pink backpack from a vehicle in the driveway and carry it into the residence.
[¶7] On March 31, 2008, Detective Edwards saw a man leave the residence in a vehicle with a Nebraska registration. Detective Edwards informed the patrol division and a few minutes later a patrol officer stopped the vehicle for a traffic violation. A canine unit arrived at the scene and the dog alerted to a container inside the vehicle. Inside the container, the patrol officer found 7 grams of methamphetamine and 1 gram of cocaine. The driver of the vehicle was identified as Steven Giatroudakis. He stated that he had gotten the drugs from Mr. Lawson and Ms. Torres approximately 15 minutes before the traffic stop. He also said Mr. Lawson and Ms. Torres had an additional 2 ounces of methamphetamine in their possession and had indicated they would be getting more early that morning.
[¶8] After speaking with Mr. Giatroudakis, law enforcement obtained a warrant to search the residence in the early morning hours of April 1, 2008. Upon entering one of the bedrooms, they found Ms. Torres in bed. Mr. Lawson appeared to have just gotten up and was standing next to the bed. Under Ms. Torres' pillow, they found a pink backpack containing over $2,000.00. Under the bed, they found zip-lock bags containing over 40 grams of cocaine and 7 grams of methamphetamine. Near the bed on an entertainment center, they found a digital scale, spoons and a white residue. They found more drug paraphernalia in other parts of the residence. Law enforcement arrested Mr. Lawson, Ms. Torres, Ms. Bolton and Ms. Varela.
[¶9] Based upon the drugs found under the bed in the April 1, 2008, search, Mr. Lawson was charged with one count of possession with intent to deliver cocaine in violation of Wyo. Stat. Ann. § 35-7-1031(a)(i) (LexisNexis 2009); one count of possession with intent to deliver methamphetamine in violation of the same statutory provision; one count of possession of cocaine in violation of § 35-7-1031(c)(ii); and one count of possession of methamphetamine also in violation of § 35-7-1031(c)(ii). Prior to his trial, Mr. Lawson filed a demand for disclosure of all exculpatory or impeachment evidence known to the State. Over the next four months, the State provided fifty-some pages of investigative reports to the defense.
[¶10] The matter went to trial in October of 2008. For its case, the prosecution relied on Ms. Plavsik and Mr. Giatroudakis to implicate Mr. Lawson in the drug activity. Ms. Plavsik testified that she purchased cocaine between October and December of 2007, generally from Ms. Torres but also from Mr. Lawson. She testified that on two or three occasions, she traded items she had stolen at Mr. Lawson's request for cocaine. She testified that one time Mr. Lawson asked her to steal a PlayStation 2 for him and gave her cocaine in exchange. Another time she stole video games for him in exchange for cocaine. Mr. Giatroudakis testified that he purchased methamphetamine from Mr. Lawson five or six times in the six months leading up to the traffic stop, search and his arrest. He testified that on the night of his arrest, he purchased 7 grams of methamphetamine from Mr. Lawson and Mr. Lawson gave him a gram of cocaine.
[¶11] Mr. Lawson's sole defense was that he was not involved in the drug activity engaged in by his girlfriend, her sister and the others who shared the residence but lived in the house because he was in love with Ms. Torres. Ms. Torres testified that Mr. Lawson never used, sold or even touched controlled substances and did not approve of her use of drugs or involvement in selling them. Defense counsel called Ms. Plavsik to testify about a letter she wrote to Ms. Torres in April of 2008 stating that she and Ms. Bolton had obtained the cocaine found in the search from Mr. Giatroudakis and Ms. Bolton had hidden it under the bed. In the letter, Ms. Plavsik stated she was sorry that Ms. Torres and Mr. Lawson "got caught up in all of this mess." On cross-examination by the State, however, Ms. Plavsik testified that nothing she had written in the letter was true; Ms. Torres had asked her to write it and told her what to write. She testified Ms. Torres obtained a similar letter from Ms. Bolton in which Ms. Bolton took responsibility for the cocaine found in the search.
[¶12] Other than Ms. Plavsik's letter and Ms. Torres' testimony, Mr. Lawson's defense focused on discrediting Mr. Giatroudakis and Ms. Plavsik, the only witnesses directly implicating him in the drug activity. Through cross-examination, defense counsel attempted to show that Mr. Giatroudakis received favorable treatment in exchange for his testimony against Mr. Lawson. Specifically, defense counsel questioned Mr. Giatroudakis about his plea agreement in which the prosecutor agreed to recommend dismissal of one of the counts against him. Defense counsel also questioned Mr. Giatroudakis about the prosecution's agreement to the reduction of his bond from $15,000.00 to $100.00. Defense counsel also attempted to show that despite having admitted to law enforcement that she had stolen 300 to 400 items of property valued at $100,000.00 in exchange for drugs, Ms. Plavsik had not been charged with any crime for those thefts.
[¶13] The jury found Mr. Lawson guilty on all four counts. The district court concluded that counts I and III and counts II and IV merged and sentenced Mr. Lawson to two terms of two to four years in prison. Mr. Lawson filed a notice of appeal. He subsequently filed a motion in district court to supplement the record on appeal to include copies of the documents the State had produced in discovery prior to trial. The district court granted the motion.
[¶14] Mr. Lawson next filed a motion for new trial in district court in which he asserted that after his sentencing he had discovered a number of pieces of exculpatory and impeachment evidence the State had in its possession during or before the trial that it had not disclosed to him. Mr. Lawson also asserted the prosecutor solicited false testimony from Mr. Giatroudakis concerning the nature of promises the prosecutor made to him in exchange for his testimony. In a later pleading, Mr. Lawson identified the undisclosed exculpatory evidence as follows:
1. A report of police interviews of Ms. Varela and Ms. Torres on April 3 and 4, 2008, in which they stated the cocaine found under the bed during the search belonged to Ashley Plavsik and they had obtained the methamphetamine from someone named Chris Carney.
2. A September 1, 2008, report relating to Mr. Giatroudakis' August 2008 arrest for possession of methamphetamine, after entry of his plea to the charge arising out of his April 1, 2008, arrest.
3. A July 15, 2008, e-mail from the prosecutor to Ms. Bolton's defense counsel regarding the State's offer to recommend probation for her on the condition that she retract an earlier statement she had made indicating that she, and not Mr. Lawson, owned the drugs found at the residence.
4. A November 10, 2008, e-mail from the prosecutor to Mr. Giatroudakis' defense counsel acknowledging that Mr. Giatroudakis had received promises of probation in exchange for his testimony against Mr. Lawson and had "performed satisfactorily."
5. A page from the State's November 4, 2008, pretrial memorandum in State v. Torres stating that, if called, Chris Carney was expected to testify that he delivered approximately 1/4 ounce of methamphetamine to Ms. Torres at the residence a short time before her arrest.
6. A page from the State's November 4, 2008, notice of intent to introduce uncharged misconduct evidence in State v. Torres describing Mr. Carney's testimony concerning his delivery of methamphetamine to Ms. Torres the night before her arrest.
7. A plea agreement in State v. Giatroudakis, in which the State agreed to recommend a suspended sentence with supervised probation in exchange for Mr. Giatroudakis' guilty plea to one count of possession with intent to deliver methamphetamine and to dismiss a second charge in exchange for his testimony against Mr. Lawson.
8. A page from a presentence investigation report in State v. Giatroudakis also reflecting the State's agreement to dismiss a charge against Mr. Giatroudakis in exchange for his testimony against Mr. Lawson and others.
9. A plea agreement in State v. Bolton in which the State agreed to recommend first offender treatment in exchange for Ms. Bolton's guilty plea to felony possession of methamphetamine and her agreement to give a truthful factual basis for her plea.
10. The transcript of Ms. Bolton's re-arraignment in which she testified that on the night of March 31, 2008, she was in possession of over 3 grams of methamphetamine, it was her methamphetamine and she had used part of it before the search.
11. Part of an affidavit of probable cause in State v. Torres suggesting that Ms. Torres owned the cocaine and methamphetamine found under the bed and stating confidential sources had identified ...