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Curby v. State

Supreme Court of Wyoming

October 19, 2018

BUDDY EDWARD CURBY, Appellant (Defendant),
THE STATE OF WYOMING, Appellee (Plaintiff).

          Appeal 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.

          Before DAVIS, C.J., and BURKE [*] , FOX, KAUTZ, and BOOMGAARDEN, JJ.

          KAUTZ, JUSTICE.

         [¶1] 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.


         [¶2] 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?


         [¶3] 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 and effect.

         [¶4] 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.

         [¶5] 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.

         [¶6] 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 ...

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