[Copyrighted Material Omitted]
Representing Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; Kirk A. Morgan, Senior Assistant Appellate Counsel. Argument by Mr. Morgan.
Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Jeffrey S. Pope, Assistant Attorney General. Argument by Mr. Pope.
Before KITE, C.J., and VOIGT,[*] BURKE, and DAVIS, JJ, and JAMES, D.J.
[¶ 1] A jury convicted the appellant of felony driving while under the influence of alcohol. He now challenges two rulings of the district court— one concerning discovery and one concerning the admissibility of evidence
— and also alleges his trial counsel was ineffective. Finding no error, we affirm.
[¶ 2] 1. Did the district court abuse its discretion by denying in part the appellant's pretrial Request for IntoxNet Database Pursuant to W.S. § 31-6-105(e) and Proof of Compliance with Statutory Predicate for Admission of a Chemical Test Result Under W.S. 31-6-105(a) ?
2. Did plain error occur, in the form of a violation of the appellant's constitutional right to confrontation, when the State's expert witness testified as to the operation, maintenance, and accuracy of the breath alcohol test machine used in this case?
3. Was the appellant's trial counsel ineffective in not calling an expert witness to testify as to the effect of diabetes on the results of a breath alcohol test?
[¶ 3] The underlying facts of the traffic stop and arrest are not particularly material in this case. Suffice it to say that, upon receiving a REDDI  report, a Laramie police officer investigated and eventually arrested the appellant for per se driving while under the influence of alcohol.  During this process, the appellant " blew" blood alcohol content (BAC) tests that resulted in readings of 0.088% and 0.086%.
[¶ 4] The State charged the appellant with one count of felony driving while under the influence of alcohol (DWUI) and the case proceeded towards trial. During the discovery phase, the appellant requested a substantial amount of information from the State relating to the breathalyzer, an Intoximeter EC/IR II, used to test his breath. The request included: (1) the appellant's breath test results; (2) the appellant's Operational Checklist for Intoximeter EC/IR I or II; (3) the most recent version of the Wyoming Intoximeter EC/IR administrator manual; (4) the complete IntoxNet database in an electronic format for the Intoximeter EC/IR II used in the case (serial number 008087); (5) all monthly logs for the Intoximeter EC/IR II used in the case; (6) all maintenance records for the Intoximeter EC/IR II used in the case; and (7) all Litigation Support Packages that have ever been created for the Intoximeter EC/IR II used in the case. The State provided the appellant with three of these items: his breath test results, the Operational Checklist, and the administrator manual. It also provided the Litigation Support Package for the appellant's case, but none of the packages created in unrelated cases. The State objected to the remaining requests, asserting the appellant had a right only to the information directly related to his case.
[¶ 5] Presented with this discovery dispute, the district court held a hearing, taking testimony from two potential expert witnesses concerning the subject breathalyzer's accuracy. The appellant presented Dr. Citron, an ophthalmologist, and the State presented Michael Moore, the head of Wyoming's chemical testing unit. Dr. Citron testified the general historical information from the IntoxNet database would allow him to decide if the machine was working properly; however, he admitted nothing in the information related to the appellant's test indicated it was rendering inaccurate results. The State's witness, Moore, also testified that his review of the data related to the appellant's tests did not suggest the machine was inaccurate and unreliable. Moore also explained that the required annual certification checks, monthly accuracy checks, and related safeguards ensured the machine's accuracy and reliability.
[¶ 6] Based upon the evidence presented at the hearing and analysis of controlling statutes and rules, the district court issued a clear and cogent order denying the appellant's
discovery request, consistent with the State's objection. It explained:
The statutory subsection [Wyo. Stat. Ann. § 31-6-105(e) (LexisNexis 2013) ] relied upon by [the appellant] is clear and unambiguous on its face. It requires the defendant to receive information regarding his chemical test. It does not, however, authorize [the appellant] to receive information regarding any other test conducted by the Intoximeter EC/IR II used in this case. Stated simply, it does not support his request for the remaining items.
(Emphasis in original). The district court also found the quality procedures— annual certification, maintenance program, monthly accuracy checks— provided assurances that " nothing concerning [the appellant's] test warrants questioning the reliability of the Intoximeter EC/IR II used in this case in the manner desired by [the appellant]." Thus, it determined the IntoxNet data and other requests for general information concerning the breathalyzer were " not sufficiently material to the preparation of [the appellant's] defense to require discovery under Rule 16 [of the Wyoming Rules of Criminal Procedure]."
[¶ 7] The case then proceeded to trial, during which the State established that the appellant had driven with a BAC above the legal limit. Particularly, the jury was presented with the appellant's breath tests resulting in readings of 0.088% and 0.086%. The State called Moore as an expert witness to explain the certification, maintenance, and calibration process for the Intoximeter EC/IR II. Moore opined the machine used on the appellant was reliable, basing his opinion on a breadth of available information including its certification records.
[¶ 8] The appellant did not present his own expert, Dr. Citron. Instead, his strategy focused on attacking Moore's credibility. The appellant attempted to show that, even though the machine previously had been certified as being accurate, it still had a propensity of being inaccurate and unreliable. On cross-examination, Moore conceded the subject machine previously had been taken out of service to be repaired and had also registered " mouth alcohol abort" messages on several occasions. But Moore was quick to clarify that a mouth abort message is not " an error in itself." Rather, such a message " means that there's alcohol in the mouth from some sources and [the machine] detects it and aborts the test, so it will not do an analysis on that subject at that point in time." Put another way, the machine would display such a message and shut down when it detected possible foreign substances that could taint the test. Ultimately, Moore continued to conclude the machine was reliable.
[¶ 9] The jury found the appellant guilty of felony driving while under the influence of alcohol, in violation of Wyo. Stat. Ann. § 31-5-233(b)(i) (LexisNexis 2013) (fourth or subsequent offense within ten years). The district court imposed a sentence of twenty to twenty-four months incarceration, with credit for time served. This appeal followed.
Did the district court abuse its discretion by denying in part the appellant's pretrial Request for IntoxNet Database Pursuant to W.S. § 31-6-105(e) and Proof of Compliance with Statutory Predicate for Admission of a Chemical Test Result Under W.S. 31-6-105(a) ?
[¶ 10] Before trial, the appellant filed a Request for IntoxNet Database Pursuant to W.S. § 31-6-105(e) and Proof of Compliance with Statutory Predicate for Admission of a Chemical Test Result Under W.S. 31-6-105(a) . The request centered on receiving access to the " IntoxNet" database, which is maintained by the Wyoming Chemical Testing Program. This database contains information on most, if not all, of the previous breath tests performed by Intoximeter EC/IR II machines, including the one used in this case. The appellant asserted his broad request was proper because the accuracy of the machine used was questionable. The State objected, a hearing was held, and after being fully informed, the district court denied the appellant access to the information in dispute. The appellant now argues the district court erred because the information was important to allow for a thorough cross-examination
of the State's witnesses and to ascertain the accuracy of the machine.
[¶ 11] The appellant attempts to style this issue as one involving a Brady violation. See Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). Based on this characterization, he contends our review is de novo. We disagree. " To establish a Brady violation, a defendant must show that the prosecution suppressed evidence, the evidence was favorable to the defendant, and the evidence was material." Kovach v. State, 2013 WY 46, ¶ 20, 299 P.3d 97, 104 (Wyo.2013) (citations and internal quotation marks omitted). There is no allegation the State suppressed any evidence, which is fundamental for a Brady violation. See Downing v. State, 2011 WY 113, ¶ 10, 259 P.3d 365, 368 (Wyo.2011); DeLoge v. State, 2010 WY 60, ¶¶ 27-30, 231 P.3d 862, 868 (Wyo.2010). The actual issue on appeal is one concerning the district court's ruling on a discovery matter. Discovery rulings are reviewed by this Court under the abuse of discretion standard. Washington v. State, 2011 WY 132, ¶ 11, 261 P.3d 717, 721 (Wyo.2011); Ceja v. State, 2009 WY 71, ¶ 11, 208 P.3d 66, 68 (Wyo.2009). Our primary concern is whether the district court's decision is reasonable. Id.; Nelson v. State, 2009 WY 37, ¶ 12, 202 P.3d 1072, 1075 (Wyo.2009). The appellant, the party challenging the ruling here, has the burden to prove such an abuse. Id.; Person v. State, 2004 WY 149, ¶ 11, 100 P.3d 1270, 1275 (Wyo.2004).
[¶ 12] Criminal defendants do not have a general constitutional right to discovery. Ceja, 2009 WY 71, ¶ 13, 208 P.3d at 68; Gale v. State, 792 P.2d 570, 575 (Wyo.1990) (" [a criminal defendant] does not have a general state or federal constitutional right to conduct wide-ranging criminal discovery in the state's files." ). Rather, such discovery rights " must result from a statute, rule or trial court decision." Hubbard v. State, 618 P.2d 553, 554 (Wyo.1980); see also Kovach, 2013 WY 46, ¶ 50, 299 P.3d at 112; Ceja, 2009 WY 71, ¶ 13, 208 P.3d at 68 (" Thus, while a defendant may request or demand certain information from the State, he is entitled to the information only insofar as required by statute, rule or case law." ). The applicable statute and rule providing the appellant in this case with the right to certain discovery are Wyo. Stat. Ann. § 31-6-105(e) (LexisNexis 2013) and W.R.Cr.P. 16.
[¶ 13] Wyoming's implied consent statute provides defendants with the ability to seek discovery related to the breath tests administered in their case. The pertinent statutory subsection provides that
[u]pon the request of a person who undergoes a chemical test or tests as required by a peace officer, full information concerning the test or tests shall be made available to the person or his attorney.
Wyo. Stat. Ann. § 31-6-105(e). The appellant contends the phrase " full information" entitles him to all data regarding the subject machine. He asserts it includes access to the IntoxNet database, maintenance logs, and every litigation support package, regardless of whether it is generic information, related to another case, or directly related to his case. We conclude otherwise.
[¶ 14] Pursuant to our well-established rules for statutory interpretation, we find Wyo. Stat. Ann. § 31-6-105(e) clear and unambiguous. The State only must provide information to the appellant related to his own chemical tests, nothing more. That is, " full information concerning the test or tests" taken by the appellant. To decide differently would require us to extend the provision to information that is not expressly required. Redco Constr. v. Profile Properties, LLC, 2012 WY 24, ¶ 26, 271 P.3d 408, 416 (Wyo.2012) (" [W]e will not enlarge, stretch, expand, or extend a statute to matters that do not fall within its express provisions." ). The State complied with § 31-6-105(e) when it
provided the appellant with the results of his tests, the operational checklist used during his tests, the manual for using the subject machine in his case, and the certification records for the machine used.
[¶ 15] The appellant also attempts to expand the language of Wyo. Stat. Ann. § 31-6-105(e), by bootstrapping it to Wyo. Stat. Ann. § 31-6-105(a) (LexisNexis 2013). He argues the latter broadens the scope of discoverable information contemplated under the former. However, reading the provisions of Wyoming's implied consent statute in pari materia, we are not convinced the legislature intended such a result. See DiFelici v. City of Lander, 2013 WY 141, ¶ 13, 312 P.3d 816, 820 (Wyo.2013) (" All statutes must be construed in pari materia ...." ). Section 31-6-105(a) states:
(a) Chemical analysis of the person's blood, breath or urine to be considered valid under this section, shall be performed according to methods approved by the department of health and by an individual possessing a valid permit to conduct the analysis. Permits shall be issued by the department of health for this purpose. The department of health may promulgate and approve satisfactory methods in order to ascertain the qualifications of individuals permitted to conduct the analysis and shall issue to qualified individuals permits which are subject to termination or revocation by the department of health.
It is plain this provision sets forth quality control standards for all tests administered, but does not mention anything regarding discoverable information. The essence of ejusdem generis provides helpful guidance. Under this doctrine " general words, [associated with] an enumeration of words with specific meanings, should be construed to apply to the same general kind or class as those specifically listed." DiFelici, 2013 WY 141, ¶ 15, 312 P.3d at 821 (citations and quotations omitted). While the initial section, § 31-6-105(a), requires chemical tests adhere to approved methods, it does not even generally provide that certain information be discoverable. More importantly, it does not broaden whet is specifically discoverable under § 31-6-105(e). What is statutorily discoverable pursuant to § 31-6-105 is found expressly and specifically in subsection (e).
[¶ 16] Because the State provided the appellant with all statutorily discoverable information, we now turn our attention to the rule concerning the same. Rule 16 of the Wyoming Rules of Criminal Procedure governs the extent of discovery in a criminal case, which states in pertinent part:
(C) Documents and Tangible Objects.— Upon written demand of the defendant, the state shall permit the defendant to inspect and copy or photograph books, papers, documents, photographs, tangible objects, buildings or places, or copies or portions thereof, which are within the possession, custody or control of the state, and which are material to the preparation of the defendant's defense or are intended for use by the state as evidence in chief at the trial, or were obtained from or belong to the defendant.
(D) Reports of Examinations and Tests.— Upon written demand of a defendant, the state shall permit the defendant to inspect and copy or photograph any results or reports of physical or mental examinations, and of scientific tests or experiments, or copies thereof, which are within the possession, custody, or control of the state, the existence of which is known, or by the exercise of due diligence may become known, to the attorney for the state, and which ...