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Michael Darren Downing v. the State of Wyoming

July 25, 2011

MICHAEL DARREN DOWNING, APPELLANT (DEFENDANT),
v.
THE STATE OF WYOMING, APPELLEE (PLAINTIFF).



Appeal from the District Court of Natrona County The Honorable W. Thomas Sullins, Judge

The opinion of the court was delivered by: Voigt, Justice.

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

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be made before final publication in the permanent volume.

[¶1] After a jury trial, the appellant was convicted of one count of unlawful delivery of a controlled substance, morphine. He now appeals that conviction, challenging several district court rulings and the competence of defense counsel, and alleging prosecutorial misconduct, as well as cumulative error. We reverse and remand for a new trial.

ISSUE

[¶2] The appellant presented ten issues for our review, but we will address only the single issue we find to be dispositive:

Did the district court abuse its discretion in prohibiting the appellant from producing evidence attacking the credibility of a confidential informant in support of the appellant's theory of the case?

FACTS

[¶3] On November 12, 2008, a confidential informant (the CI) working with the Wyoming Division of Criminal Investigation (DCI), made a recorded telephone call to the appellant to arrange the illegal purchase of morphine pills. The CI was then given $1,800 in "buy money" and driven to JC's house, where the CI allegedly gave the buy money to the appellant in exchange for 18 morphine pills. Present at the house in addition to the appellant were JC and SM. The CI was "wired" during the transaction, but background noise diminished the quality of the recording. The buy money was not recovered because a search warrant was not immediately executed.

DISCUSSION

[¶4] A district court's evidentiary rulings are reviewed on appeal under the following standard:

Evidentiary rulings are within the sound discretion of the trial court and include determinations of the adequacy of foundation and relevancy, competency, materiality, and remoteness of the evidence. This Court will generally accede to the trial court's determination of the admissibility of evidence unless that court clearly abused its discretion. We have described the standard of an abuse of discretion as reaching the question of the reasonableness of the trial court's choice. Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means exercising sound judgment with regard to what is right under the circumstances and without doing so arbitrarily or capriciously. In the absence of an abuse of discretion, we will not disturb the trial court's determination. The burden is on the defendant to establish such an abuse.

Edwards v. State, 2007 WY 146, ¶ 7, 167 P.3d 636, 637 (Wyo. 2007) (quoting Gabbert v. State, 2006 WY 108, ¶ 24, 141 P.3d 690, 697 (Wyo. 2006)).

[ΒΆ5] The appellant alleges that the district court abused its discretion by denying his pretrial motion seeking discovery of "other buys" in which the CI participated, and by excluding at trial evidence of other such buys. The appellant contends that these rulings prevented the jury from hearing relevant evidence of his theory of defense that the CI was "conning" DCI, prevented the jury from hearing evidence that affected the CI's credibility, and violated this Court's prior rulings, ...


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