*3 THOMAS, C.J., Before BROWN, CARDINE, MACY, URBIGKIT and JJ. CARDINE, Justice.
Appellant, physician, convicted six separate charges involving sexual as- patients sault of and sentenced to 12 years each charges, on of three years charges, each of two and 10 *4 years charge, on final sentences run concurrently. questions presented for our determination in appeal this are whether there was sufficient evidence to degree sustain conviction first rape of TT; of delay whether in charging the deprived appellant process crimes of due law; whether error occurred in the admis- experiment, sion of an out-of-court a tissue semen, allegedly containing and witness; of a rebuttal whether there was rulings, error in evidentiary error in limit- ing cross-examination, surrebuttal, and evi- concerning appellant’s dence theory of de- fense; and whether prosecutori- there was al and in misconduct error instructions the jury.
We reverse one of the convictions and affirm other five.
FACTS Appellant, Story, physician John H. is a engaged general practice who in was Lovell, in medicine In Wyoming. prac- his pelvic tice did he examinations of women examining his room of office. The pelvic examinations consisted vaginal of a visual examination tract speculum a with an instrument called and a manual check of and the ovaries uterus. performed portion manual inserting one to examination three fingers vagina pressing into while on (argued) Gerald R. Mason and Van Gra- During the abdomen with the other hand. ham, Twichell, Pinedale, Mason ap- & for undressed, patient the examination the pellant (defendant). lying an examining her feet table with McClintock, Atty. Gen., bent, A.G. stirrups, A. knees covered Gerald and Stack, Gen., Deputy Atty. Sylvia position patient Hackl Lee sheet. could conviction, imprisoned peniten- and shoulders of Dr. be in the head only the
see performed. tiary year not less than one nor more Story as the examination fifty years”; examinations that the during pelvic than It was appellant was convicted which crimes of degree guilty and of second sexual assault occurred. 6-4-303(a)(vii), contrary of EM W.S. 1977, supra. Appellant was found not charged rape with forcible Appellant was respect charges AT, CP, EMc, guilty with of sexual HF, TT, WH, and EMc, GJ, W.S.1957, 6-63, provid- assault of and AD. violation of § part: pertinent ed in support The evidence in of the convic- (A) “Rape; degrees CP, HF, WH, tions of sexual assault defined. — unlawfully has carnal knowl- Whoever AT, demonstrated, EM mi- with some forcibly female child edge of a woman or variations, pattern nor of action. Three guilty against her will is of first-de- Story of the victims testified that Dr. in- imprisoned in the gree rape, and shall be using formed them that he would be a new term not less than penitentiary instrument, tube, round dilate them (1) during life. year, one facilitate the exam. He then inserted “(B) unlawfully has carnal Whoever penis vagina his into the of all but one of knowledge child under the of a female the victims. All but one of the victims (15) age years with her consent of fifteen Story’s penis observed Dr. erect out of his second-degree rape guilty shall unzipped trousers. Some of the victims *5 penitentiary in the imprisoned shall be Story exposed said Dr. himself to them (1) year for not less than one and not moving examining side of the table. fifty years.” more than All Story but one of the victims said Dr. penetrated them. When asked about their EM, charged He forcible was with feelings why and some had not resisted and AD, 6-4-303(a)(vii), GJ, contrary and to § reported happened, they had what had W.S.1977, provided: which they Story, they said trusted Dr. were “(a) pen- Any actor who inflicts sexual shocked, afraid, and did not want to talk etration or sexual intrusion on a victim about it. commits sexual assault in the second de- if, gree under circumstances not consti- Thus, WH testified: * degree: tuted in the first sexual assault “Q. you reporting Did consider it *? # * * * * * thought “A. I about it. “(vii) pen- The actor inflicts sexual “Q. Why you? didn’t etration or sexual intrusion treatment I I “A. was afraid. knew that— purposes or examination of a victim for substantially “Q. inconsistent with reason- Why you were afraid? practices able in manner medical or “A. Who would believe me? It was substantially inconsistent reason- just Story my against I and Dr. and word practices.” able medical his.” W.S.1957,supra; guilty of a lesser-included which rape of TT offense, commit perpetrates “Attempt provided: rape, provisions assault and was found and CP to commit an assault HF, WH, of § battery contrary guilty and 6-64, W.S.1957, rape. or with intent to AT, assault —Whoever of forcible to § contrary 6-63, and happened before. that time? AT stated: “A. Because “A. “Q. Why “Q. [*] What was I was in shock and afraid. [*] were nothing you [*] your afraid? like state [*] that had ever of mind [*] [*] at angry
battery upon any
intent
I
and hurt and
female with
“A. was confused
shall,
rape,
commit the crime of
and embarrassed.”
CP,
State,
who
the sheet and observed
Smith v.
lifted
from.
Wyo.,
(1977).
Story,
An
Dr.
stated:
inference is
pro
reasoning by
cess of
propo
which a fact or
I
it.
I
“A.
couldn’t believe
was
sition
fairly
is deduced
logically
from
shocked.
I couldn’t believe it.
proven
other facts
admitted. An infer
n
n
n
%
He
#
truly
ence is
weight
evidence. The
“Q.
anyone
you
way
Did
talk to
on the
is
depends upon
entitled
the facts
out
[of
office]?
case,
of each particular
circumstances
No,
just
got
“A.
I
in my
went out and
ordinarily
Kobie
jury.
for the
just kept thinking,
I
car.
what am I
Wilson, lusz v.
tight
her knees
across
for the examination.
began
He
by palpating
examination
OF
SUFFICIENCY
*6
inserting
and
abdomen
an
into
instrument
EVIDENCE—RAPE OF TT
her vagina so that he could see inside. She
Appellant contends in his brief that there
was then aware
he
her
examining
that was
was
support
insufficient evidence to
his
plastic glove
a hand covered with a
TT
rape
conviction of the
of
because she
by something
which was followed
she de-
did not
Story
scribed as “different.” With Dr.
* * *
penis,
“see the insertion of the
table,
standing at
the end
she felt an
* *
penis
inserted,
know that a
been
had
object
“very, very
that she described as
alleged assault,
did
see the
she
[but]
* *
*
warm
soft
it
and
and was bare flesh
relying entirely upon
seven-year-old
pushing
very
inside
TT
it
of me.”
said was
memory of a sensation which she then
painful,
began crying.
Story
and she
Dr.
compares
experienced
to a sensation
object
then removed the
a little bit and
*
marriage to arrive at a conclusion
pushed
farther,
hurt
she
it
and it
and
crying
sobbing.
pulled
was
and
then
He
A rape
may
upheld
conviction
again
back
pushed
out and
it in
a little
upon
of the victim alone.
suddenly
farther
she
warm fluid
felt
State, Brown v.
189,
191 go
Story
down
bottom. Dr.
then
(1978).
considering upon
In
appeal
her,
grabbed
paper
ripped
underneath
question
sufficiency
of the
it,
it,
evidence to
garbage.
wadded
and threw it
into
support a jury
guilty,
verdict of
wiped
we review
Story
He then
her off. As Dr.
left
evidence,
room,
both direct and circumstan
TT
that he
different
noted
looked
tial,
light
in a
most
favorable
the State
than
he
his shirt
when
had entered because
ascribing to
straight
pants
higher.
that evidence all reasonable was
were
and his
may fairly
said,
good.”
inferences that
be drawn there- As he left he
“You did real
TT,
age,
being
years
had never had a
June of 1984 and that
the criminal com-
experience
nor had she seen a
plaint
sexual
naked
was filed on October
1984. The
penis
did not know what a
man. She
was
information in the district court was filed
19, 1984,
know she had
charging appellant
and did not then
been sexual- November
aware, however,
ly assaulted. She was
with ten counts of sexual assault
in the
pelvic
just
degree
that
examination he had
rape.
second
and seven counts of
performed
different
April
information,
was
than one Dr. Sto- The
1985 amended
ry
performed
Approximately
tried,
upon
appellant
before.
reduced
later,
years
charges
seven
TT was married and
be-
to six counts of
in viola-
6-63, W.S.1957,
came aware that she had been assaulted
tion of
supra, and three
§
Story.
testifying
Dr.
degree
she was asked:
counts of second
sexual assault in
6-4-303(a)(vii), W.S.1977,
violation of
su-
“Q.
you
Now then do
know what the
pra. The incidents which were the bases of
object
Story
that
in you
Dr.
inserted
charges
period
the nine
occurred over a
day?
that
approximately
years
July
seventeen
from
penis.”
“A.
It was his
period
1967 to 1983. The
of time be-
Story
patient
Dr.
testified that a
could
tween the occurrence of the incidents and
tell the
fingers
difference between two
charges against appellant ranged
from
penis
speculum
and between a
and a
20 months
years.
to 17
It
delay
is this
penis.
agreed
patient being
He
charging
claims
him
denied
position
examined was in a vulnerable
fair trial and should result in dismissal of
possible
sexually
that it was
assault a
this case.
patient
However,
position.
in that
he said
At common law there was no limi
patient’s
cooperation would be needed
period
prosecution
tation
any
for the
cooperation
and that
was needed to insert
criminal offense. Where no statute of limi
speculum.
pertaining
tations
to criminal offenses has
TT’s
seems to us more
adopted, prosecution
for such an of
jury
than sufficient for the
to find that Dr.
fense
be commenced at
time dur
Story had committed
a sexual assault
ing the life of the
Vasquez
offender.
positively
her. TT
testified that what Dr. State, Tex.Cr.App.,
(1977);
1027
rights
lees’
to a
of these 48 states have limi-
trial and that the
crimes. None
fair
delay
periods
capital
for murder
of-
was an
or
gain
intentional device to
tation
Many
period for
have no limitation
tactical advantage over the accused.”
fenses.
prosecution of
or
some
all
seri-
(Emphasis added.) 92
at
S.Ct.
465.
crimes. Of the states
that have
ous
The Court also noted that a criminal
for
adopted statutes of limitations
criminal
prosecution, commenced within the limita
period
ten
prosecutions,
have no limitation
period provided,
tion
would not be dis
Comment,
of rape.
for the crime
Criminal
preaccusation
missed for
delay where there
Time,
Limitation of
5
Law:
Prosecution —
only upon potential
prejudice
was reliance
(1970). Wyo-
Land & Water L.Rev. 179
passage
and
time as
being
violative
of
ming is one of the two states
has no
which
process.
due
commenced,
of
Where timely
any
of limitations for
criminal case.
statute
pre-
defendant must establish that the
charges
against
The nine
of
Dr.
filed
charging delay caused substantial prejudice
Story
timely
properly
in this case were
rights
to
a fair
delay
trial and that the
brought
See,
21
the State.
Am.Jur.2d
gain
was an intentional device to
tactical
Criminal Law 223.
advantage over
the accused. United
Although
prosecution
Story
of Dr.
Marion, supra.
States v.
The Court in
charges
the nine sexual assault
was Marion, supra, reversed
order
dismiss
limitation,
by any period
not barred
we
ing
charges
stating:
still
whether his
must
determine
constitu-
“No
prejudice
actual
to the conduct of
process
to due
tional
fair trial
alleged
proved,
the defense is
delay
charging
denied
in
him.
showing
there is no
that the Government
dealing
subject general-
The cases
with
intentionally delayed
gain
some tacti-
ly
prosecutorial delay
charging.
involve
advantage
appellees
cal
over
or to harass
They
prosecution
are cases in
Appellees rely solely
them.
on the real
possession
had
of facts and
evidence
possibility
prejudice
inherent
delayed commencing prosecu-
crimes but
dim,
delay:
extended
that memories will
periods
for
tion
of from a
months
as
few
inaccessible,
witnesses become
and evi-
Graddick,
as
Stoner v.
long
years.
19
751
light
dence be lost.
In
the applicable
(11th Cir.1985);
United States v.
F.2d 1535
limitations, however,
statute of
these
Comosona,
(10th Cir.1980).
614 F.2d
possibilities
enough
are
not
themselves
Marion,
United States v.
In
U.S.
appellees
re-
demonstrate that
cannot
(1971),
S.Ct.
L.Ed.2d 468
there
ceive a
trial
justify
fair
therefore
delay
years,
was a
of three
two months
the dismissal of
indictment.” 92
between the commission of the crime and
466.
S.Ct. at
the return
anof
indictment. There was a
Lovasco,
United States
U.S.
five-year
period
commencing
limitation
(1977),
97 S.Ct.
Amendment would dismissal of The further in Court duty prosecutor if the the indictment it were shown at trial the and filing pre-indictment respect in the of criminal delay this case court with to prejudice to appel- substantial charges: caused free, defining expressed by the absence of a limitation in ‘due
“Judges are not
crime,
prosecution
for such
before the
impose on law enforcement
to
process,’
prosecution
no-
should be forbidden.”
Id.
‘personal
private
our
officials
‘disregard the
“overcome the absence
scared,
concerning
report
they were
limitations
the crime of mur-
the crime because
one,
afraid,
degree.
did not want to hurt a loved
der
the first
We hold that the
believed,
thought
showing
prejudice
they
must be suf-
would
of actual
against
legislative
their word
the word
ficient to overcome the
intent
because it was
*9
lying
easily
doctor. Those reasons are
un-
an
on an
of a
examination table in the
no
pelvic
position.
There is
indication that
derstandable.
examination
On cross-ex-
for
report
purpose
trial,
of
the
prosecutor
the failure
was
amination later in
advantage
gaining a tactical
or that it
appellant
was
asked
it
physically
whether was
in bad
Nor is there
show- possible
sexually
done
faith.
during
to be
assaulted
ing
specific prejudice
op-
substantial
as
pelvic
of
Appellant replied,
exam.
“I would
general prejudice resulting
posed
from
agree
have to
Doctor Florey
with
that it
passage
memory.
of time
loss of
possible.”
redirect,
probably
would
be
On
showing
Specific prejudice is the
of the loss
appellant explained that intercourse on the
witness,
evidence,
of a
exhibit or other
require cooperation
table would
by the vic-
probably
of
presence
bring
which would
tim.
prosecution
Florey
The
called Dr.
In a
very
rebuttal,
about
different result.
case
repeated
stand in
and he
his
case, Cooper
close to
instant
prior testimony
sexual
that
intercourse was
Okl.Cr.,
(1983),
ADMISSION OF EVIDENCE alleged experiment sexual assaults and the cir- substantially similar occurred under Experiment Out-of-Court cumstances. During chief, Dr. State’s case Flo- decide whether the rey, expert, the State’s testified We need not that one admitting Florey’s Dr. testi- could have sexual with a wom- court erred in intercourse *10 conference, “experiment” any After Mrs. his because the bench Harri- mony about 1983, Wednesday son testified that on a in was harmless. error “ taking pelvic the from while trash the ex- admitting has evidence which ‘Error room, amination she noticed a wet on tissue presented or on behalf of one top bag. picked up the of the trash She the practically party is cured where the same * * * prosecutor tissue and smelled it. When the is elicited on cross-exami- evidence ” asked her whether she associated the smell objecting party.]’ nation the [from anything, replied: with she “Semen.” She 1229, Feeney v. also testified that she discovered the. wet (1986), quoting Ap- 5A 1230-1231 C.J.S. anyone tissue before else had arrived at 1735(b). peal and Error § day the office that so she checked the Florey compared clumsy Dr. con- When appointment appellant book to see if had sensual intercourse on his table with the previ- pelvic conducted a examination the possibilities appellant’s adjust- enhanced on ous afternoon. She discovered that he had. table, making point merely he able agree appellant We that Mrs. appellant’s possible intercourse was on that paper testimony Harrison’s tissue was in table, appellant already a fact admit- 402, under Rule admissible W.R.E. because Florey implied Dr. never that non-con- ted. 401, W.R.E., it was irrelevant under Rule possible appel- sensual intercourse was on which states that Any admitting error in lant’s table. Dr. “ ‘[rjelevant evidence’ m'eans evidence testimony Florey’s was harmless. having any tendency to make the exist- Paper Semen on Tissue any consequence ence of fact that is of the determination of the action more Harrison, prosecution The called Diana probable probable or less than it would appellant’s receptionists, testify one of be without the evidence.” appellant’s practices. about office When No definitive test ever established that the questioning turned to Mrs. Harrison’s But, substance on the semen. tissue was discovery piece paper of a tissue an accept opinion even if we Mrs. Harrison’s thought office wastebasket which she con- was, that it it is hard to see how that fact semen, objected tained defense counsel on prove consequence.1 anything would grounds relevancy, lack of founda- prosecution presented The no evidence that prejudice. tion and unfair A bench confer- appellant’s. the semen was Nor was it prosecutor ence ensued. The admitted that ejaculated established that the semen was the semen would not be linked to either during a sexual The assault. district court appellant incidents permitted abused its discretion when it charged, but court never- testimony. permitted testimony grounds theless on The erroneous admission evi appellant’s opportunity that it would show dence operandi. only and modus condition imposed
the court
on the admission of the
“does not mandate reversal of a convic-
* * *
explain
was that Mrs. Harrison
tion in all instances.
For an error
harmful,
how
identify
she was
regarded
able
substance
to be
as
there must be
as
possibility
semen.
a reasonable
in the ab-
Ferguson,
1. In State v.
100 Wash.2d
The woman had testified earlier that the de-
(1983),
Supreme
stepfather habitually wiped
P.2d
74-75
Court of
fendant
semen from
Washington
testify
genitals
held that a woman could
after intercourse with
his
with a towel
victim,
thought
daughter,
an indecent liberties case that she
she
her. And the woman's
observed semen stains
defendant used a towel
on various towels. Since
also testified that the
having
various
identification of the semen was
offered
after
intercourse with her on
witness,
jury
opinion
lay
to the
as the
of a
afternoons. The woman’s
about
sup-
court
decided that it did not have to be
towels was relevant because it was linked
ported by
testing.
jury
scientific
could ac-
defendant and the acts for which he was
cept
opinion
charged.
for what it was worth.
error,
might
LT
sence of the
the verdict
testified
October
*11
undergoing
pelvic
been
to
while
a
have
more favorable
the defend
examination in
State,
office,
appellant’s
appellant
Bishop
attempted
ant.”
v.
—
(1984),
penis
vagina.
insert his
into her
246-247
cert. denied
U.S.
She never
—,
penis
actually
saw his
S.Ct.
L.Ed.2d 345
because there was a
(1985);
103(a),
surgical drape
stomach,
around her
see also Rule
W.R.E. and
but she
7.04,
Although
felt it
her hand.
Rule
W.R.A.P.
she could
many
visit,
not recall
of the details of her
quite
We
are
sure that
verdict would
testimony
quite
about the assault was
if
been
same
the court had exclud-
specific.
testimony.
ed the tissue
The tissue testi-
mony
inconsequential
compared
was
when
404(b), W.R.E.,
Rule
states:
overwhelming
with the other
evidence of
crimes,
of other
wrongs,
“Evidence
or
appellant’s guilt. Nine victims testified in
prove
is not
acts
admissible to
the char-
great detail about the sexual assaults com-
person
of a
acter
order
show that he
by appellant.
mitted
Their
was
in conformity
acted
It may,
therewith.
by
often corroborated
or
their friends
fami-
however, be
pur-
admissible for other
ly
they
members
of
who
told
the assaults.
poses,
proof motive,
such
opportu-
as
of
The admission of Mrs. Harrison’s testimo-
intent,
nity,
preparation, plan, knowl-
error; and,
ny
not prejudicial
was
there-
edge,
or
identity,
absence of mistake or
fore,
isit
not a basis for reversal.
accident.”
of
suspect
Evidence
other bad acts is
Testimony
a Rebuttal Witness
permits
it
a jury
because
to convict the
rested,
prosecution
After
defense
past
defendant for his
crimes rather than
witnesses;
called LT as
one
its rebuttal
charged,
crime
it
forces
defendant
but,
sworn,
she could
before
defense
prepare
charged
to defend on both the
objected
anticipated
counsel
to her
testimo-
crimes,
past
crime and
and it tends to be
ny
hearing
and the court held
a
cham-
by
jury. D.
overvalued
Louisell & C.
testify
LT
going
appel-
bers.
was
that
Mueller,
Federal Evidence
at 129-
sexually
during
lant had
assaulted her
a
(1985);
State, supra,
see
v.
Bishop
also
pelvic
examination
1971.
(Cardine, J., dissenting).
We the State that LT’s on LT. the assault description ic of her sexual assault was EVIDENTIARY
sufficiently convincing. OTHER RULINGS clear But the for testimony substantial need is more Questions Leading problematic. typical This is not the sexual prosecu claims that the assault case in which bad-act evidence is leading during questions tor asked 239 help jury needed to decide who is tell- He defense trial. admits that counsel ing State, Wyo., the truth. Grabill v. objected questions, to 42 of those but con (1980). P.2d already Each victim tends that the trial court’s failure to sus eight other victims to corroborate her objections stop tain those caused counsel to hand, story. recog- On the other we must raising According appellant, them. testimony nize that LT’s was admitted dur- leading questions de State’s reliance on ing the State’s rebuttal after the court trial prived him of his to confront testify had seen the victims and had heard him, against right guaranteed witnesses appellant deny stage the crimes. At Amendment to the United the Sixth proceeding good the court in a States Constitution. position to decide whether there was a sub- Appellant’s leading-question arguments testimony stantial need LT’s First, appellant are without merit. failed might plan corroborate the common leading ques- object to all 42 of the but scheme indicated the victims’ earlier tes- tions. timony. State, Carey See (1986),
P.2d 244
waiver
object
and 2 D. Louisell
“A failure to
constitutes a
& C.
Mueller,
occurred, unless the
Federal Evidence
140 at 205
of whatever error
(4)Testimony
plain
error.”
from several victims that
rises to the level
error
they reported
Bradley v.
Wyo., 635 P.2d
the sexual assaults to the
medical board.
1163-1164
his trial counsel
Appellant's excuse that
All of this evidence was relevant and
objecting
futility
is contra-
stopped
out
prove
admissible because
tended to
facts
by the fact that the court sustained
dicted
consequence.
Rule
W.R.E. The
objections.
leading-question
half of his
during
emotional distress of the victims
reports
their interviews
their
Second,
twenty leading questions
of the
credibility,
medical board enhanced their
defense coun-
which the court allowed over
key
Florey’s
issue
the trial. Doctor
ex-
eighteen
allowed for
objections,
sel’s
were
amination
was an essential
table
questions
good reason. Ten of the
were
opinion
foundation for his
that sexual inter-
context,
leading
two
when taken
performed
appellant’s
course could
matters,
preliminary
involved
three were
Florey’s
having
And Dr.
policy
table.
necessary
responses
to elicit
from a reluc-
present,
together
nurse
with Mrs. Harri-
witness,
or difficult
and one was made
tant
son’s
that she told
up
prior testimony
witness’ own
so
*13
get
room,
a nurse in the examination
tend-
could understand the in-
that
witness
appellant planned
ed to show that
the sexu-
question.
permissi-
tent of a
These are all
locking
al assaults.
door was relevant
leading questions
uses for
under Rule
ble
appellant
because it showed that
had the
W.R.E.,
611(c),
part:
in
which states
opportunity
perpetrate
the assaults with-
“Leading questions
used
should not be
out fear of detection
his office staff
on the direct examination of a witness
his wife
often
in
office.
who
worked
except may
necessary
develop
as
be
added.)
testimony.’’
his
(Emphasis
See
agree
appellant
We
with
that
this evi
Mueller,
3 D. Louisell & C.
Federal Evi-
All evi
prejudicial
dence was
to his case.
462-463,
(1979).
339 at
466
dence
guilt might
proves appellant’s
dence which
key
“prejudicial,”
be said to be
but “the
Finally, appellant has not carried his bur-
Hop
unfairly prejudiced”
whether it
him.
leading ques-
proving
den of
that the two
State, Wyo.,
79,
kinson v.
632 P.2d
126
might
improperly
tions that
have been
ad-
922,
(1981)
denied,
cert.
455
102 S.Ct.
U.S.
impact
nine-day
mitted had
on this
1280,
(1982);
403,
to describe how the
when
them;
she interviewed
Appellant claims that on six occasions
(2)
Florey
Doctor
to describe his own
court
limited defense counsel’s
the trial
policy
having
examination table or his
prosecution
witnesses
cross-examination
present during pelvic examina-
a nurse
611(b),W.R.E., and the
of Rule
violation
tions;
Amend-
confrontation clause
Sixth
(3)
of the United States Constitution.2
explain
appel-
Mrs. Harrison to
ment
alleged er-
analyze
could
We will
each of these
lant’s examination room door
inside;
from the
rors
turn.
locked
* *
against
part:
him
states in
with the witnesses
2. The Sixth Amendment
prosecutions,
“In all criminal
the accused
* * *
right
enjoy the
to be confronted
shall
308,
1105,
PM’s
Bias
Potential
U.S.
94 S.Ct.
be forced HF’s “no” answer as employed has been at the Police brother] conclusive should able to but instead be Department years. of a number And by memory propounding ques- test her contrary to her statements that the rea- tion a different manner. The court re- she report son didn’t it are because sponded: having, that fear that is inconsistent with me, Counsel, “It seems we have her, or because nobody would believe purposes go- established the fact for that that is inconsistent with having ing to the that she jury testified she brother that is on the force that she penis. really did observe a Does it make readily could have confided him. And is, any difference as to it what size think probative we that that whether it eight is six inches or inches or goes impeachment value and as to whatever? I will you allow to ask whether or testimony not her that she whether or she anything not saw else in report not did because she didn’t think penis relation to the such as whether anybody would believe her is not true.” shorts, not she his observed whether it original ruling court stood its sticking sus- out his or some trousers taining prosecutor’s such thing objection. this.” like stated proper court that it cross- proceeded Defense counsel to test HF’s examination because beyond it went memory suggested by in the manner scope direct. court. Appellant alleges Appellant’s allegation that a second error oc- third in- error curred attempted volving when defense HF during counsel occurred ask HF mother, about her employment brother’s of HF’s On MF. direct examina- with the Department. Lovell Police On daughter tion MF testified that her told her examination, direct HF had testified that rape day on the De- occurred. she report did not anyone other attempted fense counsel then to attack than her She mother. said she did not MF’s on cross-examination report police the incident to the because showing that MF employ ap- continued to *16 they she feared that would not believe her. pellant as her doctor she after learned of Defense attempted impeach counsel to this daughter’s her, “Now, rape. her He asked statement on cross-examination and the fol- Story physician; Doctor is your also isn’t lowing exchange occurred: began answer, As MF prose- he?” to the you Do “[Defense Counsel]: objected question cutor that was be- police relatives on the force in Lovell? direct, yond scope and the court No.
“[HF] counsel objection. sustained the Defense “Q. following made proof: You don’t have then offer of a brother that works for the Lovell Police? proof would offer “We make an then Yes, “A. I have brother that is a radio to show that this witness continued to operator. Story including treat with Doctor herself “Q. For up who? pelvic through to and examinations certainly easy is incon- It is not so to find year of 1983 which alternative rea- sons for the court’s exclusion in- of the other somebody who had been with sistent questions involving two HF. HF admitted raped daugh- her they that formed po- that her brother worked at the Lovell it probative that is ter. We think department, lice prevented but the court prejudicial to disallow it.” asking defense counsel from long how responded: The court he there. In impeach worked to order going go along have to with “I am report rape HF’s claim that she did not prosecutor’s] argument that this is [the police they because she feared would you If scope of direct. outside her, not it necessary believe for de- your call this witness for case wish to fense counsel to show when HF’s brother certainly you may chief do so.” police department. worked at the HF al- earlier, 611(b), Rule pointed As we out leged rape years occurred before W.R.E., permits explicitly defense counsel trial and defense counsel had to show that scope exceed the of direct when attack- police depart- HF’s brother worked at the ing credibility. questions All three of the ment at that time. should have HF MF the district court permitted to HF’s relation- establish credibility. They excluded went to should brother, him, ship with her that she trusted solely grounds not have been excluded him, helped confided in and that he scope they that exceeded the of direct. counselled her if that were true. This ex- important cluded cross-examination anwas Appellant’s conviction for assault and HF’s part credibility. attack on It battery rape intent to HF should not repetitious was not or irrelevant. The court however, reversed, simply because the be excluding it. erred evidentiary rulings unsup- court’s were attempted Defense counsel’s cross-exam- 611(b). ported by Rule The court’s basis mother, MF, ination of HF’s was also rele- excluding importance evidence is no important. vant and When defense counsel if is inadmissible for some the evidence MF, began cross-examining there was al- appearing in the record. other reason ready some as to whether HF had doubt Carey, Wyo., 504 P.2d re Estate of really reported rape HF told to her. prosecutor prior to trial that she had the in The district court excluded reported anyone never else. length appellant’s penis quiry into the trial, But at she said that she told MF redundant and of limited because was about it after it occurred. value,
probative simply not because it ex If defense counsel could have shown that scope of direct. rec ceeded While we Story MF Dr. after she continued to visit ognize per that a cross-examiner should be daughter’s allegedly rape, learned of her dislodge mitted to the witness from his credibility sorely MF’s would have been instances, response in initial some we also obviously tested. court realized that recognize repetitious questioning on this line of cross-examination was relevant insignificant points makes little sense. See suggested because the court that defense Mueller, 3 D. Louisell & C. Federal Evi in chief. counsel raise the issue its case case, (1979). In dence 334 at 415 this procedure But does not cure guessing game between defense counsel court’s error. Defense counsel should not impeached HF would not have HF’s forced to call a witness back to memory any already im more than it was in the case in order to attack his stand later peached by she could the fact credibility. If a witness’s misstatements *17 length penis. of remember the the immediately, they demonstrated are not court acted within its discretion when it the other evi- jury’s can color the view of impeach suggested that defense counsel Defense counsel’s dence which follows. credibility memory inquiring de by HF’s into other eventual attack on witness’s And the witness rape. may come too late. where tails of the 1038 counsel,
is recalled defense it is not for “Subject always to the broad discretion cross-examination but in his case in chief. judge a trial preclude to repetitive and and, He denied be cross-examination if unduly harassing interrogation, allowed, may again have to review all the cross-examiner is only permitted not to unfavorable of the witness in delve into the story witness’ to test the stage order to set the for examination perceptions witness’ memory, hut credibility. The examination then would the cross-examiner traditionally has surely Finally, lose effect. the witness will impeach, i.e., been allowed to discredit, * * * have had considerable time prepare to particular witness. A more cross-examination which pur- defeats its attack on the credibility witness’ is ef- pose. It was error for deny the court to fected means of cross-examination di- defense counsel the opportunity timely rected toward revealing possible biases, cross-examine MF about her continued vis- prejudices, or ulterior motives of the wit- Story. its to Dr. they ness as may relate directly to issues personalities in the case at hand. The Evidentiary harmless, errors can be partiality of a subject witness is explo- burden is on the to demon- trial, ration at ‘always and is strate that those relevant as prejudicial. errors are discrediting the Bishop State, affecting witness and supra, 687 P.2d at 246. weight of his analyzing testimony.’ But before We have rec- harmfulness of error, ognized exposure we must decide a witness’ appel- whether in testifying lant’s motivation right proper constitutional is a confrontation was, important was also violated. If function of the constitutionally harmful- protected right ness of the error must analyzed be under cross-examination.” (Citation omitted). much stricter standards.
Although a trial This interpretation court has court’s some discre- scope tion to control cross-examination of the Davis case has always not “ * * * State, consistent. ‘this Connor v. discretionary Wyo., authority 537 (1975), P.2d
comes
717
play
into
we
only after there
stated
dictum
has been
permitted
that Davis only
right
as a matter of
established the defendant’s
sufficient
right
constitutional
cross-examination to
satisfy the
cross-examine
Sixth
on is
”
Amendment.’
sues of bias
prejudice,
United
general
States v. Lind
not
strom,
credibility.4
(11th
F.2d
We
reiterated
Cir.
this view in Sa
1983), quoting
State,
laz v.
supra,
Greene v. Wainwright,
1039
Davis,
supra.
interpreted
Supreme
As
the con- made
the
Court Davis v.
Alaska, supra, 94
guarantees
range
S.Ct. at 1111:
frontation clause
a wide
discrediting
is
cross-examination and
“Petitioner was thus denied
limited to attacks on bias.
effective
cross-examination
‘ “would be constitutional error of the
say
This is not to
that there can be no
magnitude
first
and no amount of show-
limits on cross-examination.
ing
prejudice
of want of
would cure it.”
questions
“Confrontation
must be re-
Janis,
1, 3,
Brookhart v.
384 U.S.
86
case-by-case
solved on a
basis based on
1245, 1246,
S.Ct.
justified
in totally prohibiting
either
recently held
cross-examination about them or in al
constitutionally
“that the
improper denial
”
lowing
questioning.’
limited
opportunity
impeach
of a defendant’s
Mercer,
Chipman
supra,
628 F.2d at
bias,
a witness for
like other Confronta
531, quoting
Cardwell,
Skinner v.
564
errors,
subject
tion Clause
is
Chap
1381,
(9th Cir.1977),
F.2d
1389
cert. de
analysis.
man harmless-error
[Chap
1883,
nied 435 U.S.
98 S.Ct.
California,
man v.
386 U.S.
87 S.Ct.
(1978).
L.Ed.2d 392
(1967).]
preme leged It would error on appeal. Schmunk v. Court.5 trial restric- us court’s Wyo., (1986); 103(a)(1), to conclude 714 724 P.2d Rule tions on defense counsel’s cross-examina- W.R.E. beyond and MF harmless a
tion of HF were Second, appellant doubt. HF’s accusation was contends that the reasonable any by physical permitted not evidence trial court should have corroborated his de testimony any by of witness other attorney the fense to call a surrebuttal witness jury’s appel- The decision than MF. that would who have refuted the rebuttal testi HF lant and battered with intent assaulted mony given Cashel, police Judi a investi entirely rape to was based on the testi- her rebuttal, gator. On Ms. Cashel testified credibility mony of HF and MF. Their was when that she conducted a warranted prosecution’s the case. crucial to appellant’s of search office she did not find gloves which could have made his fin Even without the excluded cross-exami- gers appear penis. nation, to be Defense prosecution’s against ap- the case counsel pellant permission HF rape very requested the was not to call a witness who the strong. jury’s point It is clear from decision would out a box of disposable gloves testimony. that it some HF’s disbelieved appearing photograph in a appellant’s appellant penetrated HF that testified photograph office. The already had been vagina penis, jury his but did not as introduced an exhibit. court The denied Instead, raping him of her. convict request grounds on that this surrebut- jury guilty him found lesser-included tal old evidence that could have been battery offense of assault and with intent introduced in appellant’s case chief. rape. subjected to HF had If and MF The trial court’s characterization ap- improp- to the which cross-examination pellant’s proposed evidence is essentially excluded, erly there is a reasonable doubt examination, correct. On direct in an ef- appellant as to whether would have been to the jury fort convince that victims convicted of even the lesser-included of- gloved had mistaken penis, hand for a beyond fense. The error was not harmless appellant had demonstrated his use of dis- appel- reasonable doubt. We reverse posable gloves phisohex and white fluid conviction, lant’s count I under of the during pelvic examinations. He had told information, amended for assault and bat- jury kept gloves that he a cabinet tery with intent to HF. in his examination room. He could have Surrebuttal photograph jury shown the during Appellant alleges that the trial pointed his out box of involving court committed two errors sur- gloves. disposable photograph’s First, according appellant, rebuttal. to on value surrebuttal have would been to permitted trial court should him have fortify his kept statement that he call several witnesses who would cast gloves in the room. doubt on rebuttal of LT. LT In Janski uncharged testified about an sexual (1975), quoted following 279 we rule appellant against assault that committed Alexander, from State v. Wyo. her in expressly 1971. court allowed (1958): P.2d appellant take the stand in surrebuttal “ * * * ‘While it is true new story, appellant LT’s facts contradict did brought out on object may properly to that rebuttal limitation his surre- evidence, buttal. object Because failed met surrebuttal rule no possibility permit because we can see does not merely surrebuttal error, plain we will not consider this al- supply evidence could have been Wyoming 5. Article protective Constitution tion clause is more than federal contains a per confrontation clause identical to the clause could establish an error se rule clause found in provision. the federal This constitution. for violations of the state We do not Wyoming court could hold that the confronta- here choose to consider that alternative. relevancy grounds, additional but the court given in chief or to cumulate allowed fortify already evidence or to evidence her to answer. She said there was no supplement such evidence given, or to difference. Defense counsel then attempt- upon re- impeached it has been because inquire specific differences, ed to about the *20 ” buttal.’ prosecutor objected, and the court held a bench conference. This applies perfectly rule in this case. no error when it The trial court committed explained Defense counsel that Ms. Bis- appellant’s prevented cumulative surrebut- choff’s was relevant because it regarding photograph. tal just showed that there were more than one Theory
Evidence on the Defense patients or two who received uneventful pelvic appellant. examinations from When theory The of the defense was that a the court of a asked where the line would be woman could mistake the sensations drawn, pelvic normal bimanual examination for a defense counsel stated that six assault, sight could mistake the of a sexual more witnesses would be called to discuss penis, could con- gloved hand for an erect Appellant their normal examinations. semen, fuse examination lubricants with witnesses, according entitled to nine misunderstand normal examina- defense, and could because nine victims had testified Appellant tion room conversation. testified prosecution. for the The court ruled that topics about these himself and called five testimony of those additional six wit- who also discussed them. other witnesses permit- nesses would be cumulative but interroga- ted the defense to continue its Gifford, nurses, Kathy appellant’s one of tion of Ms. Bischoff. normal examinations. described his She explained dispos- flesh-colored that he used Despite ruling, court’s defense coun- gloves phisohex. able and cream-colored appellant’s pa- sel asked one of another there often She also testified that tients, Winland, Robyn about her normal discharge patient’s vagina that from a pelvic prosecutor examinations. When the wiped to be off with a tissue. objected, the court called a bench confer- Gifford, appellant’s Judy patient the court ence. Defense counsel informed nurse, who also worked for him as a con- vagi- Ms. Winland would describe firmed her sister-in-law’s about secretions, by appellant, nal the words used gloves phisohex. She described appellant’s and the manner in which cloth- appellant’s proce- bimanual examination ing against her. The court stood brushed detail, great explaining he dures prior ruling and held that the testi- its patients they could would ask his whether language mony about the secretions and more,” “go “take and whether he could permit- was cumulative. The defense was any deeper,” the same words al- however, clothing, inquire ted to about the legedly during used the sexual assaults. it was new evidence. because injected She also stated that he sometimes the court abused contends that patients medications which the could warm by limiting its discretion the introduction of vaginas. Finally, feel as it entered their theory evidence on this of the case. vaginal discharge she described the prop- State counters that the evidence was commonly she said was associated with the erly Rule excluded as cumulative. examinations. W.R.E., part: states witness, Appellant's Jacqui next Bis- relevant, “Although may evidence be ex- choff, Big Hospi- was a nurse at the Horn * * * by cluded considerations of undue appellant’s patients. tal and one of After time, presen- delay, waste of or needless testifying appellant’s reputation, about de- evidence.” tation cumulative compare fense counsel asked her to rulings, evidentiary a trial Like other ap- from pelvic examinations she received under to exclude evidence given by court’s decision pellant those she had been for clear be overturned prosecutor objected on Rule will other doctors. of discretion. Towner “will assist trier of abuse fact to under- (1984); stand the evidence or Wyo., 685 P.2d McCabe v. to determine a fact Manning Company, issue.” Construction R.A.
Inc., P.2d Wyo., 674 addition, expert’s opinion must be “However, extraordinary Rule 403 is an personally based on facts which he has sparingly remedy perceived, which should be used which were at introduced hearing, evi- or are reasonably since it allows the court to exclude relied experts concededly which is relevant and in his field. 3 D. & dence Louisell C. Mueller, Federal probative. major Its function is to ex- Evidence 388 at 654-655 (1979).6 clude scant or cumulative evidence which unfairly confusing, prejudicial, 703 does judicial “Rule not abdicate re-
needlessly cumulative.” Towner v. sponsibility expert, for leaves State, supra, at 49. rejection testimony for if room re- on the liance facts or data unreason- agree We with the State that the in able: Rule effect the trial directs wisely exercised its discretion under court judge expert’s accord to deference to the permitted The court circumstances. reasonable, explanation of what is but it appellant and three other to tes witnesses require judge accept does not the trial to tify freely proce about the examination thinking, guess- what amounts to wishful might dures victims have miscon work, speculation.” Id., or 387 at 652. The court was to strued. careful exclude Although Wrung might have de- Dr. actually evidence only the which was cumu many scribed procedures examination The court did to lative. not have allow familiar, which he was he not link could just nine witnesses because there procedures those with physical sensations happened to be nine victims who testified he personally experienced. opinion His prosecution. for the been nothing specu- would have more than Appellant’s improper final claim of lation jury. which could have misled on his defense limits involves the State, supra, See Krucheck 702 P.2d at expert, Douglas' Wrung. of his Dr. Al 1271. If there study was some of female though Wrung Dr. permitted testify was patients showing that some examination vaginal discharges pel about after normal procedures could be inter- mistaken for examinations, vic he was not allowed to course, Wrung might then Dr. had a procedures which, in opin describe his proper opinion. basis an But defense ion, patient female might mistake for a counsel never made an proof offer of dem- Specifically, sexual assault. defense coun onstrating such a basis. Under the circum- Wrung: sel asked Dr. stances, properly exclud- your experience “In ed. to conduct- relative pelvic
ing any particular exams are there PROSECUTORIAL MISCONDUCT procedures that come to mind that your opinion capable being are misin- Instructing the Talk Witnesses not to terpreted by patient?” the Defense prosecutor’s objec- court sustained the Fearing that the State’s witnesses were any tion that question answer to this would being during harassed investigatory speculative. be stage proceedings, prosecutor 702, W.R.E., expert permits opinion Rule them anyone instructed not to talk with- testimony if it approval. out his Defense made a counsel 703, W.R.E., reasonably 6. Rule upon by par- states: experts relied forming opinions particular field in upon “The facts or data in the ticular or inferences case expert opinion subject, which an bases an or inference not the facts or data need be perceived by those or known to made admissible evidence.” type him at or hearing. before the If of a compel to refrain motion to the State from the defense information which per- such instructing witnesses. The court give.” so its son has the Standards granted Justice, the motion and issued the follow- 3-3.1(c) for Criminal Standard ing (American 1980). order: Bar Association “IT HEREBY IS ORDERED But misconduct alone does justify Big Prosecuting County Attorney, Horn reversal. agents employees, his or refrain from party alleging prosecutorial “A miscon- instructing any and all witnesses not to proving duct has the burden of that he talk to or be interviewed the Defend- substantially prejudiced by any mis- attorneys, agents employees. ant’s or Capshaw v. place.” conduct that takes “IT IS FURTHER ORDERED that interviews conducted the Defendant’s witnesses, Appellant has not listed the who attorneys, agents employees or gave never an interview. Nor has he State’s witnesses be recorded electroni- shown us he changed how would have his review; cally for the Court’s strategy trial or cross-examination tactics discretely be conducted and in interviews if he had been able to more interview manner; non-harassing that the State’s carry them. He has failed his burden of may grant
witnesses
interviews to De-
showing prejudice. Although we do not
attorneys, agents
employees
fendant’s
*22
here,
approve of what occurred
it is not a
but are not ordered to do so.
basis for reversal.
“IT IS FURTHER ORDERED that a
copy of this Order be furnished to each
Exculpatory
Disclosure
Material
witness at the time the Defendant’s at-
Appellant
prosecution
claims that
the
torneys, agents
employees attempt
or
exculpatory
failed to disclose
material
interview them.”
when it failed to reveal the
name
the
Right
hearing
after the
on defense coun- patient
pelvic
who received a
examination
compel,
prosecutor
sel’s motion to
the
sent
night
the
Mrs.
before
Harrison found the
explaining
a letter to the witnesses
the
alleged
semen-soaked tissue
the waste-
court order. Consistent with their
appellant
explain
basket. But
does not
order,
under the court
all but two of the
how this information would have been ex-
witnesses refused interviews
defense
know,
culpatory.
patient
As far as we
counsel. The defense moved for a continu- may
sexually
on the
assaulted
grounds
ance on
that it needed more time
previous evening. Appellant’s argument
witnesses,
to interview the
and the court
necessary cogency
lacks the
without some
granted it. The record does not indicate
truly
that the
ex-
indication
material was
whether the continuance allowed defense
culpatory. We need not consider it. Ea-
successfully
counsel to
conduct additional
State, supra,
ton v.
The court
at the time
following jury
in-
struction:
provided
giv-
and in the manner
for the
ing
making
especially
of instructions
true when the issue has not been
objections
Wyoming
thereto
Rules
carefully
parties
briefed
or the facts
of Civil Procedure.”
have been poorly developed in the record.
case, however,
In this
parties
turn,
51, W.R.C.P.,
Rule
states:
briefed the
thoroughly
issue
in the context
party may assign
“No
giving
as error the
well-developed
of a
record.
give
or the failure to
an instruction un-
objects
jury
less he
thereto before the
Moreover,
question
has created con-
verdict, stating
retires to consider its
dis-
fusion at the
capable
trial level and is
tinctly the
objects
matter to which he
repetition but
Lopez
evades review.
v.
grounds
objection.”
and the
of his
State, supra,
J.,
544 P.2d at
(Raper,
parties
At the close of the evidence the
concurring).
gained
There is much to be
adjourned to the court’s chambers. At that
by a forthright decision on the merits of
time the court stated:
the issue.
Lopez
supra,
See
agreed
they
put
“Parties have
will
J.,
P.2d at
(Raper,
865-866
concurring).
objections
their
and reservations to the
1670’s,
In the
cautionary
when the
in-
instructions after the same have been
created,
struction
rape
capital
was a
submitted to
jury
and the Defendant
crime. There was an extreme reluctance to
object
has reserved the
to some
penalty
convict because the
was so enor-
given
instructions that have not been
mous. There
given
is little reason today,
may
to instructions
giv-
have been
present
penalties,
single
rapists
out
en.”
special
treatment and
victims for
parties
courtroom,
returned to the
special scrutiny on the witness stand.
judge
jury.
instructed the
“When
prosecutions
[sexual assault]
objected
way
to the
one of the instructions
present
evidentiary questions,
close
they
read,
and the court reread it. But
do so not because
generally
victim—
appellant
object
did not
to the absence of
woman—claims to
sexually
have been
as
cautionary
Closing argu-
instruction.
abused,
saulted or
but because the al
presented,
ments were then
jury began
leged
place
crime took
in evanescent cir
deliberations,
parties
and then the
returned
cumstances difficult
to reconstruct
objections
chambers to make their
to the
court,
happenstance
plague
instructions.
prosecution
involving spe
crime
jury began deliberations,
Once the
intent,
cific
typical
and which is indeed a
it was too late for
object
occurrence in such nonsexual crimes as
51, W.R.C.P.,
instructions. Rule
is de
*24
fraud and narcotics transactions.” Lo
signed to allow “the court to correct itself
State,
(Ra
pez
supra,
v.
bly the MacDonald, that the record must be clear as to what Rape Of- police.” J.M. tims to level, Victims, (3rd happened at the trial the error print- 26at fenders and their law, must involve a clear rule of 1979). rape victims In ing 55% clearly violate the facts of the case must police, while crime to reported the 63.6% met, requirements rule. these are victims, aggrava- Once robbery 62.3% appellant still bears the burden of victims, purse ted assault 64.9% showing ad- that a substantial reported crimes. snatching those victims Statistics, versely affected.” Id. Dep’t of U.S. Bureau of Judicial Justice, in the Unit- Victimization Criminal law, say We cannot that the rule of States, (1985). 1983 at 85 ed violated, claims the court is apply a five- clear. The trial court must incorrect stat-
The instruction is also part decide whether to instruct on disprove. test to ing rape is hard to Accord- Selig, State offenses. comparing rape prose- lesser-included ing to FBI statistics Several prosecutions of other violent cutions with require analysis by crimes, parts of the test factual rape is one of the most difficult to precisely analysis kind prosecute successfully. Lopez v. su- court— profit parties’ objec- from the which can pra, P.2d 868. at arguments. tions and The court did not summary, In the instruction has objections at have the benefit of those usefulness, un its discriminates outlived time error could be cor- when claimed victims, fairly against and is based certain event, say rected. we cannot premises. It can dis on inaccurate there was a clear violation of a rule of law jury duty from its as fact finder. tract the give plain as would rise to error. There longer cautionary instruction should no error, being plain no the court’s decision to rape testi given, be even when victim’s give the instruc- lesser-included-offense mony uncorroborated. ground tions is not a for reversal. jury noted also that the can It should be be misled an instruction to the effect CONCLUSION solely that it can convict the defendant Appellant’s conviction for assault testimony. the victim’s uncorroborated rape intent to HF is reversed. battery with give Rather than this instruction and bal- The are affirmed. five other convictions instruction, cautionary ance it out with a give should neither in- district courts THOMAS, Justice, concurring and Chief struction. uncorroborated tes- The victim’s Justice, BROWN, dissenting, with whom highlighted timony should neither nor joins. denigrated. I to dissent from the am constrained Instructions Lesser-included Offense majority conclusion of the of the court that Appellant claims that the court in Story’s battery conviction for assault and jury compromise reach a ver vited the with intent to H.F. is reversed. That gave dict when it instructions on lesser-in premised upon the refusal of the reversal is supported were not cluded offenses which permit inquiry trial court to of H.F. with *25 argues also the evidence. He respect long to how her brother had been instructions themselves were deficient. As working Department. for the Lovell Police earlier, pointed we out defense counsel did for the The fact that H.F.’s brother worked preserve any not instructional error for our brought Department Police was out Lovell voluntarily he his review because withheld and the and material information critical began objections jury until after the delib perceive established. I cannot how appellant’s making point erations. We can reverse con Story was inhibited from alleged viction based on this error if H.F. had testified that jury with the that Lovell error. Britton v. plain report we can not this offense to the find she did they police she feared that would because yet not her and believe that she did have a operator
brother who worked as a radio Department.
the Lovell Police my It is impeachment
view that which Story
complains he was foreclosed from accom-
plishing in fact had I occurred. am not
persuaded necessary it was for de-
fense counsel then to show the exact dates
when police the brother worked at the de-
partment. majority opinion goes on to rely
upon a Story statement should have permitted to establish H.F.’s relation- brother,
ship him, with her that she trusted him,
confided and that helped he true,
counseled her if that were but the
difficulty with this statement is that it does appear that Story ever made that offer proof. Furthermore, apparent no at-
tempt was made even to questions ask
about these latter matters. I persuaded
Because am not that there respect error with to limitation of upon
cross-examination majority which the conviction,
relies to reverse this I cannot
agree portion with that majority
opinion discussing concept of harmless respect
error with limitations
cross-examination.
I would affirm Story’s conviction on all charges.
six TROUT,
Kye Jr., Appellant (Petitioner),
WYOMING AND OIL GAS CONSERVA COMMISSION, Appellee,
TION
(Respondent), Energy Corporation,
Mitchell (Intervenor). Appellee
No. 85-280.
Supreme Wyoming. Court of
June 1986.