Wright v. State

¶1DISSENTING:

¶2T1 Initially, I reject the claim that Dodd does not apply retrospectively to Wright's trial; instead, it must be applied to all cases pending on direct appeal.1 The majority then restricts Dodd's applicability to cases involving "jailhouse informants." Although this limitation superficially appears reasonable given Dodd's use of that term, the rule is actually driven by the need to question and ensure the reliability of any informant testimony purchased in exchange for consideration. Consistent with this objective, the Dodd requirements were meant to and should apply to all informants offering evidence at trial for consideration.2

¶312 I would additionally require that the trial judge conduct a reliability hearing after the Dodd discovery, specifically considering the following factors: (1) whether the informant has received or will receive anything in exchange for testifying; (2) whether the informant has testified or offered evidence in other cases and any benefit there received; (8) the specificity of the informant's testimony; (4) the manner in which the statement from the defendant was obtained; (5) the degree to which the statement can be independently corroborated; (6) whether the informant has changed his testimony in this or any case; and (7) the informant's criminal history. After considering the evidence, the judge should determine whether the movant established the probable truthfulness of the informant's testimony. If not, the testimony *1159should be excluded. If so, the testimony should be admitted, leaving to the jury any lingering questions on the witness's eredibility.

¶4T3 The majority next admits that the State contemplated a future deal with informant Poorboy. However, it appears that State and Poorboy had not agreed on the terms of this deal prior to trial. Poorboy merely "hoped" for leniency in his pending criminal charges. True, mere hope of a deal is insufficient to trigger the Dodd requirements, which require disclosure only when the prosecutor presently knows of a future offer. As such, Dodd was left with a void. Because such common "after-the-testimony" deals undermine confidence in the informant's testimony-the very problem Dodd seeks to curb 3-I would not leave the void unfilled.

¶5T4 Occasionally, a prosecutor truly might not know what consideration (if any) the State will bestow upon an informant. Nevertheless, the potential for abuse should not escape notice. I would apply the newly-discovered evidence standard to cases where an informant receives post-trial consideration.

¶6T5 The newly-discovered evidence standard requires a retrial when the defendant acquires material evidence that was not and could not have been discovered before trial.4 Applying this standard to post-trial plea agreements leads to the inescapable conclusion that these inducements will always be newly discovered, for that which the prosecutor did not know at trial could never be "discovered" by any defendant before trial, due diligence notwithstanding. Thus, the question in this cireumstance will always be the materiality of the evidence. Evidence is material if it has a legitimate and effective influence on the outcome of the trial, The very existence of the Dodd protections proves the necessity of disclosing such critical information. So it is here. The State's post-trial deal with informant Poorboy was material, was "newly discovered", and thus a new trial is required.

¶716 The State's conviction hinged on Poorboy's testimony that Wright admitted the crime to him. The evidence shows the weakness of Poorboy's testimony from the beginning. He initially and repeatedly denied Wright's involvement in the crime. Upon later facing charges carrying substantial sentences and little prospect for bond, he recanted his earlier testimony and "revealed" Wright's "confession." 5 To what effect?

¶8T7 At the time of Wright's trial, Poorboy faced two charges: Assault with a Deadly Weapon and Possession of Marijuana after former conviction of a felony. The minimum sentence for each was ten years. After Wright's trial, the State dismissed the Assault charge, and Poorboy received a ten-year suspended sentence for the Marijuana charge. Poorboy's "hope" for leniency in exchange for his testimony became his ticket to freedom.

¶9T8 This subsequent development in Poorboy's good fortune further cripples faith in his veracity. Had the jury known Poorboy would fare so well after testifying against Wright, his already-impaired credibility would have been further damaged if not destroyed. In a close case such as this, where conviction rests primarily on one suspect witness who was not cross-examined on very damaging facts, I cannot be sure that the result of the underlying trial would be the same had those facts been known. I would reverse and remand Wright's convictions for a new trial.6