from the District Court of Albany County The Honorable Tori
R.A. Kricken, Judge
Representing Appellant: Thomas A. Fleener, Faculty Director,
Alex Cremer, Student Director, and Christopher W. Goetz,
Student Intern, U.W. Defender Aid Program.
Representing Appellee: Peter K. Michael, Wyoming Attorney
General; Christyne Martens, Deputy Attorney General; Caitlin
F. Harper, Senior Assistant Attorney General; Benjamin
Fischer, Assistant Attorney General.
DAVIS, C.J., and BURKE [*] , FOX, KAUTZ, and BOOMGAARDEN, JJ.
A jury convicted Buddy Edward Curby of strangulation of a
household member. Mr. Curby appeals, arguing the State
violated his right to due process when it failed to comply
with obligations established in Brady v. Maryland,
373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). We affirm.
Mr. Curby states one issue in this appeal:
Did the prosecution violate Mr. Curby's due process
rights guaranteed by the Fourteenth Amendment of the United
States Constitution when it [withheld] evidence from [Mr.
Curby] until the last possible moment before trial?
Mr. Curby's girlfriend reported he assaulted and choked
her to the point of unconsciousness during an altercation
between the two. The State charged Mr. Curby with
strangulation of a household member, in violation of Wyo.
Stat. Ann. § 6-2-509(a)(i) (LexisNexis 2017). The
district court set a jury trial for August 10, 2017 and
ordered that all discovery be completed by July 20, 2017. Mr.
Curby filed a demand for discovery, requesting the State
provide him with "[a]ny relevant written or recorded
statements made by [Mr. Curby]" and "[a]ny and all
exculpatory evidence for [Mr. Curby] or evidence which aids
[Mr. Curby] in the preparation of the defense." On July
12, 2017, the district court re-set the jury trial for August
8, 2017, but ordered that all other deadlines in the previous
order-including the discovery deadline-remain in full force
On July 20, 2017, the discovery deadline, the State provided
Mr. Curby with over 1, 500 recorded telephone conversations
between Mr. Curby and a woman named Serena Jacobson. Those
telephone conversations occurred while Mr. Curby was in jail
pending trial. Mr. Curby filed a motion to preclude the State
from using any of those phone calls in its case. He argued
the State should have provided the recordings to him much
earlier than it did, and its failure to do so violated its
obligations under Wyoming Rule of Criminal Procedure
16(a)(1)(A)(i)(1) and Brady. After a hearing, the
district court determined the State's disclosure of the
telephone calls did not violate its discovery obligation
under Rule 16 or its obligations under Brady.
The trial began, as scheduled, on August 8, 2017. The State
presented testimony of the victim, law enforcement officers,
several medical providers, and hospital employees. The State
also introduced many exhibits including photographs of the
victim and the hospital records associated with treatment of
her injuries. It also introduced some of the recorded
telephone conversations. At the conclusion of the State's
case-in-chief, Mr. Curby's counsel informed the district
court that four pages of State's Exhibit 19, which
consisted of a medical report by the sexual assault nurse
examiner, had not been disclosed to the defense prior to
trial. Counsel argued that the State's conduct violated
the discovery rules and sought dismissal of the charges with
prejudice or a mistrial. The State represented that the four
pages in question were inadvertently attached to State's
Exhibit 19 and conceded those documents should be excluded
from the evidence considered by the jury. The State pointed
out the documents were merely cumulative to witness testimony
and other reports presented at trial and asserted a more
drastic remedy was unnecessary.
The district court agreed that the documents were cumulative
to other evidence presented at trial and, therefore, were not
prejudicial. The court determined it would exclude the
records and it instructed the jury to disregard those records
and any testimony discussing them. With that remedy, the
district court concluded the circumstances did not rise to a
level necessitating a mistrial or dismissal with prejudice.
The jury found Mr. Curby guilty of strangulation of a
household member, and ...