Background

• K.T., a nine-year-old, was interviewed by CAP where she alleged Sullivan attempted sex with her and described anal rape and other sexual acts.
• Sullivan initially denied, then admitted to law enforcement that he had done to K.T. what she alleged.
• Sullivan was charged on Feb. 13, 2009 with three counts of first-degree sexual abuse and one count of second-degree sexual abuse; Counts I and IV were dismissed; he pleaded not guilty to Counts II, III, and IV.
• Before trial, Sullivan moved in limine to preclude fifteen types of prosecutorial misconduct, including vouching and comments about polygraph tests; the court granted the polygraph portion but denied the rest.
• At trial, Chief Nelson testified about the CAP interview and stated, in front of the jury, that one polygraph had not been taken; this was elicited by the prosecutor.
• The jury convicted Sullivan on Counts II and III; he was sentenced to 20–35 years per count, consecutive, and appellate review followed challenging prosecutorial misconduct.

Issues

Key Cases Cited

• Sullivan v. State, 49 P.3d 975 (Wy. 2002) (harmless error analysis in prosecutorial misconduct)
• Drury v. State, 194 P.3d 1017 (Wy. 2008) (harmless error framework and assessing prejudice)
• Wilks v. State, 49 P.3d 975 (Wy. 2002) (factors for determining prejudice in prosecutorial misconduct)
• Proffit v. State, 193 P.3d 228 (Wy. 2008) (polygraph testimony violations and right to remain silent)
• Schmunk v. State, 714 P.2d 724 (Wy. 1986) (reversing for improper polygraph references)
• Szymanski v. State, 166 P.3d 879 (Wy. 2007) (prosecutorial misconduct review framework)
• United States v. Scheffer, 523 U.S. 303 (U.S. 1998) (lie detector evidence and jury as lie detector)
• Brown v. State, 953 P.2d 1170 (Wy. 1998) (jury credibility as fact-finder; admonitions aiding harmless error analysis)
• Bennett v. State, 794 P.2d 879 (Wy. 1990) (jury determinations of witness credibility)