*1 WHITEPLUME, Adolph Francis (Defendant), (Plaintiff). Wyoming, Appellee
STATE of
No. 91-241. Wyoming.
Supreme Court 10, 1992.
Nov. *2 1990, Defender, 13, Munker, appellant’s Debo- hours of Public October Leonard Counsel, Cornia, Cheyenne, Riverton, Appellate Wyoming. rah mobile home in appellant. picture for drawing a of the facts relevant presented appeal, the issues in this need Gen., Atty. Meyer, Sylvia L. Joseph B. transpiring not describe events earlier in Gen., Boy- Hackl, Barbara L. Deputy Atty. evening of October 12 before victim Gen., er, Atty. D. Hoff- Donna Sr. Asst. appellant placed appellant’s are mo- dahl, Intern, Cheyenne, appel- Student events, bile home. About those earlier it lee. say discrepancies suffices to exist when MACY, C.J., THOMAS, Before compares testimony one the victim’s * GOLDEN, CARDINE, URBIGKIT and testimony. Agreement be- JJ. however, exists, tween them victim was intoxicated when she arrived GOLDEN, Justice. lant’s mobile home and there was sexual Whiteplume, Appellant, Adolph Francis night. contact betwеen them With of first sexu- appeals his conviction regard contact, to that sexual the victim’s concerning He al assault.1 raises issues Ap- a sexual assault. describes admissibility right speedy contrast, pellant’s testimony, in describes vouching testimony allegedly of for the consensual behavior. admissibility credibility, alleged victim’s expressing opin- allegedly of victim, According to the after she soon appellant’s guilt, and the admissibili- ion of appellant were alone in his mobile ty hearsay of home, her, brutally grabbed attacked hair, by dragged her her into her a small reverse and remand for retrial. tried, bedroom, pulled clothing, off her way: Appellant states the issues will, against her to have sexual intercourse. I ISSUE act, accomplish that Unable to err Did trial court when failed to per- allegedly tried to force victim to speedy lack of trial? dismiss for him, form several oral sex acts on II ISSUE will, ap- Against she resisted. of two Was the admission penetrated pellant allegedly the victim’s va- vouching the State's witnesses back, Fighting a she was gina with dildo. alleged and stat- credibility of the victim incapacitate appellant and briefly able to guilty ing Appellant was wearing escape shirt she make per plain charged se and crime ran home. grabbed as she from the mobile error, right denying Appellant by jury? fair nearby house and The victim ran to They occupants. called ISSUE III let in department. sheriff’s the sheriff’s Two hearsay improperly Were statements coming to deputies quickly responded by Appellant’s introduced violation inter- where the victim was and right confrontation? the house interviewing vic- After viewing her. FACTS tim, Nethercott deputy James sheriff’s As drove the victim prosecution The state’s home, the past appellant’s mobile drove involving appellant from arose activities telling deputy, pointed it out to the night victim in the latе victim raped. early where she was morning him that was of October and the hours * (i) of the vic- argument. The actor causes submission Justice at time of oral Chief reasonably through application, actual tim (1988) Wyo.Stat. pertinent states in § 6-2-302 victim, cause calculated to submission part: physical forcible confinement. force or (a) Any intrusion on actor who inflicts sexual assault in the first a victim commits sexual degree if: Courts, might being medi- form Rules District hospital, addition
At the examined, interviewed defense. prejudice the victim was cally the Office Jacque Taylor, director of pre- January day before the Assault. Family Sexual Violence held, prose- conference was to *3 meantime, Nethercott In the charge appellant to with kid- cutor decided speak home to appellant’s mobile drove degree and a of first napping second count appellant deputy him. The informed with growing of thе same sexual assault out appellant rights; constitutional of his the first supported that had activities deputy and consented to talk agreed On charge of first sexual assault. home of his mobile deputy’s the search 29, then, arrested on January appellant was arms, chest, a visual examination and charges. new these two search, the During the and back. hands 30, January appel- prosecutor the and On He located a dildo. deputy observed lawyer met the district court lant’s with clothing. seized vacat- pretrial conference was judge. home, Deputy Leaving appellant’s mobile present prosecutor informed those ed. hospital and returned to the Nethercott new pursue his intentions the two During that again interviewed the victim. charges pending the felony addition to interview, appellant he learned that prosecutor the charge. The stated Later on Octo- dildo on victim. used a tri- charges could consolidated for three be 13, a search war- obtained ber to vacate purposes and need existed al home, rant, appellant’s returned to mobile Ap- existing February trial 25. date of the dildo. and seized lawyer urged pellant’s a continuance 13, 1990, evening In the hours of October date, stating investigator trial that his following appellant’s physical examination investigate further need time to would war- hospital pursuant to a search at the charges. The due to the additional case rant, appellant and arrested judge court then decided to vacate district in the October placed county jail. him On February 25 trial date. 15, 1990, com- the state filed a criminal 8, February held a county court On charged appellant plaint in which preliminary hearing on the additional initial degree sexual At his first assault. appellant over on the charges; was bound court, county aрpellant appearance charge, sexual assault additional $10,000 bond. on an unsecured released 6, kidnapping charge. March On 2, 1990, prelim- appellant’s On November against ap- prosecutor filed information held, inary hearing was at the conclusion respect the additional sexual pellant with in the for trial he was bound over which charge. assault arraigned court court. district district 8, arraigned April district court On 1990, 19, on appellant December charge. The appellant on that additional plea; the district guilty a not he entered continued his unsecured bond. On court 25, 1991, February set the court 29, district order was filed April court’s appellant’s bond. and continued prose- approved as to form both days elapsed from Sixty-eight Among appellant’s lawyer. oth- cutor and arraignment. When the until his arrest things, it recited er the trial arraignment court at set district 18, 1991, motions for June that all was set 25, 1991, anoth- February all knew that 1991, 20, by May filed were to be trial; sixty-eight days pass would before er 30, May pretrial conference was set for have thus, days would a total tri- appellant’s arrest and elapsed between 29, 21, May appellant April Between arraignment, this was At the when al. orally court either lawyer did not show district known, appellant nor his neither trial, now writing delay how a in the orally or in or in either complained or showed 18, may prejudice begin June sixteen-day delay beyond set to writing how however, 22, May provided by Rule Uni- defense. On 120-day period advisory in nature and is a factor to a motion to the district filed with Id. balancing in the grant speedy trial. considered test.” Un- failure to dismiss for test, balancing motion consider and der Although (2) delay “(1) length delay; weigh caused prosecution’s actions (3) [appellant],” delay; for the the defendant’s prejudice of reason “to the (4) prejudice preju- right; not state what assertion of lant did [his] Id. affidavit attach defendant.” and he dice motion. analysis, constitutional “[U]nder court held May the district upon speedy trial clock starts to run arrest hearing sever- pretrial conference Harvey complaint when the is filed.” or *4 motions, including appellant’s pending State, al 87, (Wyo.1989). 774 P.2d 94 The appel- respect to speedy motion. With trial appellant on Octo- sheriff arrested motion, produced trial speedy 13, 1990, lant’s physical after his examination ber Hanson, testify in Randy investigator, filed The authorities court The district support of motion. complaint against on criminal Oc- 6, motion; ruling on on the June reserved appellant’s 15. From date of tober 1990, was denied. 13, the motion on to the date of arrest October 18, 1991, appellant’s days on 249 trial June began Twelve wit- on June 18. The trial elapsed. testified, victim, including appel- nesses Nethercott, lant, rape Deputy Sheriff law, recognized havе In our case we Jacque Taylor. alleged evi- counselor specifies periods 204 certain time Rule appeal in this oc- dentiary errors raised may span from time we subtract during testimony of Nethercott curred computing and trial when arrest between When Taylor, both state’s witnesses. Harvey, 774 P.2d at delay. length errors later we address those State, 118, Phillips v. 94; 121 fully the factual opinion, we state this shall Thus, pertinent part, (Wyo.1989). Rule framing them. context specifies: 204 (c) following periods be shall ex- 21, 1991, appel- found On June computing the time for trial: cluded in count first guilty of one lant Later, the district court sexual assault. prison term of not sentenced him to serve pursu- (3) granted by the Delay court years nor more than ten
less than seven (d). ant to Section eight days pre-sen- years credit for incarceration, repay to the $464.55 tence pay and to prosecution, costs
state for (d) may granted as Continuancеs Compensation the Crime Victim’s $50 follows: timely appeal. this lodged Fund. speedy trial first address shall * * * (2) if: On motion of issue, evidentiary then on to the move (i) expressly con- The defendant issues, necessary. if sents; or I (iii) Required in the due administra- SPEEDY TRIAL justice the defendant will tion of jurispru trial speedy This court’s prejudiced. substantially not be balancing test amalgam dence is an possible (e) receiving Upon notice 514, 530, 92 Wingo, v. 407 U.S. of Barker writing delay defendant shall show 101, (1972) 2182, 2192, 116 L.Ed.2d 33
S.Ct. delay prejudice his defense. may how the 204 of the Uni of Rule provisions and the appellant’s trial date judge The trial set District Courts for the form Rules 25, February 1991. From the arrest 806 Wyoming. Osborne State 13, 1990, February to the “is date of October Rule 204 (Wyo.1991). P.2d 277 appellant’s argument on date, elapsed. have The thrust days would 25 trial delay trial speedy issue is that Febru- trial court established February the vacated 25 trial date between appellant’s arraignment ary date at trial date, period 18 trial of 113 and the June arraignment was 1990. That December filing days, prosecutor’s was caused ar- days sixty-eight after held charges ap- and occurred without additional lawyer knew at Appellant and his rest. consent. pellant’s Because February date trial arraignment 136-day delay from complaint no about the 120-day beyond the days sixteen would be date, are February arrest we chose, They howev- provision of Rule 204. 113-day delay led to focus on between er, They chose not raise issue. not to From February 25 and June 18. 204(e) writing, as Rule try to show description of court’s its considerations delay might prejudice provided, how date, as continuing February 25 trial these circum- appellant’s defense. From order, in its the trial contained it is clear stances, can conclude that in the inter- court continued trial date his defense perceived prejudice to lant justice due ests of the administration February trial satisfied with and was hearing lawyer and after from date. *5 equal- he favored continuance. It is ly prosecutor opposed clear the a continu- 30, 1991, and his January appellant On felony ance. Because additional prosecutor actively lawyer knew the was grew charges out the same set of facts charges, felony pursuing two additional 13, 1990, all knew existed on which October viz., degree first assault a second sexual legitimate saw no need for a prosecutor charge, growing charge kidnapping and continuance. of the same set of facts out 13, why 1990. a loss prosecutor was aware on October are at to understand We thought investigator needed January 30,1991, prosecutor did not On investigate light to in more time February 25 a continuance of the ask for charges. The facts had not additional date; instead, the.prosecutor express- trial argues changed. now opposеd any he continuance. The ly stated prosecutor’s decision the two addi- to file court, however, considering a con- trial ap- charges ploy pressure was a to tional for several One reason tinuance reasons. plea of than pellant into a some kind rather question the testimo- concerned some Ap- innocence go maintain his to trial. and the ny expert of the state’s witness evidence, only speculation, pellant offers syndrome. The other reason rape trauma support argument. Regardless of that to consolidate concerned state’s desire ploy progress, of whether original first sexual assault surrounding assaults on facts degree sex- charge with the additional first 13, 1990, changed. Fur- had not October charge kidnapping charge. ual assault investigation light ther those facts of its The trial court “notified the State charges reasonably the additional datе, to trial intention continue the be, necessary. may However that against moving presented argument State lawyer argued lant’s for a continuance. prosecutor was date of the trial.” The obviously orally did not either or He show trial issue. obviously speedy sensitive to a 30, 1991, writing January order, According to the court’s trial prejudice delay might appellant’s defense. time, argu- entered the Defense [a]t delay beyond simply fail to see how upon continuing based ment for February rationally trial date can be to have the fact wished prosecution. Appellant attributed inquiries into investigator further make prosecu- presented has no evidence that the preparation for trial based this case seeking delay delay alone tor was —let charges. upon possible additional purpose advantage. gain an evil or to February trial then contin- 18 as the date was The trial established June its order new trial date when it issued ued. 29, lawyer, appellant’s Appellant’s right speedy April dated as approved that order prosecutor, not violated in this case. hand, notify- With that order in to form. fifty days ing him of the new date II
hence,
lawyer
that time nei-
appellant’s
writing
nor in
the trial
orally
ther
showed
DEPUTY SHERIFF’S VOUCHING FOR
delay might prejudice appel-
court how that
VICTIM’S CREDIBILITY/EXPRESSING
21,
April
May
lant. From
OPINION OF APPELLANT’S GUILT
complaint
made no
the new trial
prosecution’s
nine
first of
wit
22, however, appellant
May
filed
date.
nesses was
Sheriff James Nether-
motion,
speedy trial motion. In that
he
initially
cott who
interviewed the victim at
he
alleged prejudice,
failed
state
house
to which she had fled after her
any
showing it. He failed to attach
facts
encounter at
mobile home.
anyone
which con-
affidavit sworn to
During
early stages
sher
going
prej-
tained
statement of facts
examination,
iff’s
prosecutor
direct
the trial court heard the mo-
udice. When
preliminary questions
asked
concerning the
appellant’s investiga-
tion and
employment
experience,
witness'
May
support
tor in
of the motion on
dispatch
response
witness’
to the radio
hear statements of fact
trial court
message
investigate
the victim’s com
showing
prejudice to
defense
plaint,
witness’ observation of the
delay in
going
caused
to trial.
physical appearance.
victim’s
After the
investigator’s testimony was to the effect
witness stated that the victim was shiver
difficulty locating
several
ing, shaking,
prosecutor
and crying, the
witnesses, but he did not attribute that
*6
asked,
point?”
you
“What did
do at that
delay
going
the
in
difficulty to
to trial.
replied, “I
her story
The witness
listened to
reading
testimony,
From a fair
of
one
his
and made a determination that she had
difficulty in
only
can
conclude that
the
raped,
placed
my patrol
and I
her in
been
locating witnesses,
experienced
difficulty
hospital.” (Emрhasis
car to take her to the
only by appellant
by
prose-
not
but also
the
added.)
lawyer
not
Appellant’s
object
did
cution,
lifestyle
to
was attributable
the
this
not
to
it.
to
answer
did move
strike
Regard-
of
circumstances
the witnesses.
The witness’ direct examination continued
less of
the trial date
have been
when
would
Early
appellant’s
some
in
time.
cross-
established,
those witnesses would have
witness, appellant’s
examination
Appellant
to
failed to
been difficult
locate.
asked,
lawyer
you
jury
also told the
“And
any
delay
show
connection between the
your opinion Whiteplume
Mr.
had
that
difficulty
locating
the
witnesses.
[victim], right?” The
raped the
witness
summary,
days
In
249
between
answered, “Yes.”
days
the first 136
of that
arrest and
appeal, appellant
asserts
wit-
appellant.
to
He
period
acceptable
testimony “I lis-
ness’ direct examination
it,
he
complaint
made
not
no
about
story
to her
and made a determina-
tened
any
his
try
prejudice
to show
to
defense
raped”
had
tion that she
been
constitutes
remaining
days
As
by
caused
it.
to the
113
per
respects.
in two
He contends
error
se
argued for
de-
period, appellant
of that
specific testimony
that
witness
lay,
complaint
delay
made no
until
about
opinions,
expressed
has
two inadmissible
period,
late in
to
relatively
failed
being
appellant is guilty and the
one
any prejudice
show
defense caused
telling
is
the truth.
other that the victim
portion
do
find
delay. We
not
State,
sue;
rather,
to be decided
issue
latter
the witness to
instructed
limit his
or not the sexual
was whether
point
to that
answer
facts introduced
and the
activity
victim
between
answer,
limiting
trial.
Instead of so
consensual. On this
alleged assailant was
opinion-sup-
the witness testified
issue, appellant argues that the
sole factual
porting
pre-existing
giving
facts
the events
against
prosecution’s case
him was weak.
tried,
being
charges
rise to the
but about
ap-
had
Although the victim
testified that
very
giving
rise to
events
those
pellant
a salve of
kind to
applied
some
charges.
“a direct
The result was
state-
inserting it
the vic-
into
dildo before
opinion
ment
[the witness’]
[the
hospital emergency room
vagina, the
tim’s
guilty”
charges being
of the
is
accused]
physician
he had not noted the
testified
Stеphens,
Relying
tried.
Id.
at 882.
in the
presence
any salves or lubricants
opinion
P.2d
held the
testimo-
although
it is
vagina,
victim’s
added
ny
guilt
per
as to
the accused’s
presence.
their
This
difficult
to detect
impossible
se
“because it is
determine
also testified that he found
witness
same
jury may have relied
whether the
on the
vaginal
tears. A forensic scientist from
expressed
reaching
opinion in
its verdict.”
Wyoming
Laboratory
State Crime
testi-
Bennett,
1339 State, testimony. into his for reversal. Rands v. On facial examination grounds (Wyo.1991). the context of 818 P.2d the direct examination of witness, “rape utterance deter- appellant agree state that with the We appears opinion mination” inadvertent. cry deputy foul as sheriffs may not are to know certainty unable what re- in direct cross-examination in his mind heart he or when uttered ques- sponse to counsel’s rhetorical defense words. those 840 P.2d tion. See Haworth v. per- do (Wyo.1992). But we 922-923 Examining language, “I listened to crying foul that is about ceive story her and made that determination Rather, appellant is com- exchange. raped,” she had been we think that a plaining solely about the sheriffs hearing reasonably would di- expression opinion his unsolicited that he draw conclusion believed her are rect examination. We disturbed raped. when she told him she had been First, aspects of that several supported credibility. That belief Her highly experienced deputy sheriff is credibility aspects was one the two officer, having enforcement served law jury, the sole issue be resolved 1,500 years, having hours of fifteen activity was whether the sexual training, having in- enforcement law aspect consensual. The other issue rapes. He vestigated seventy is also credibility. educated, having earned a bache- well both psychology lor’s and master’s happened It is true that what here is experience in law degree. Considering his happened more subtle than what in Ben- presume he investigations, enforcement cases, In Stephens. those counsel nett experience testifying in court. We openly bandying around the word were educated, trained, think such well “opinion” directly and the were witnesses experienced enforcement offiсer law expressly their opinions. asked state answer the would know better than to Here, did prosecution not ask the direct question you do next?” with “What question. express “opinion,” Instead of an “I made the determination that she answer gave an inferential “determina- the witness When he raped.” had been interviewed Stephens, tion.” both Bennett victim, sheriff was strong against prosecution cases stages investigation. Al- the earliest of his 63; at Stephens, P.2d Ben- accused. point at though he did not know Here, nett, prosecu- investigation go would or time where against is somewhat tion’s case be, surely it would knew how extensive tenuous, especially considering quality have much work would to be basic testimony. That tenuous- would include the done. That basic work judicial more task ness makes difficult *8 actually done in this case: work that was the error on the measuring effect of the ap- the victim and of several interviews of jury’s verdict. physical examinations of the victim pellant, State, (Wyo. P.2d In 719 227 Lessard work, laboratory and so on. appellant, case, 1986), a first sexual assault expe- an It reasonable to believe that seems rape coun carefully considered crisis we not officer would rienced law enforcement elicit selor’s direct examination early “rape so have made a determination” defense coun by prosecutor. the Over ed Further, investigative process. in the the objection, the trial court allowed sel’s experi- that an seems reasonable believe asking testify that the victim’s counselor to testifying at law enforcement officer enced tell the assault assailant not to about the express an know that he could trial would in commonly recognized phenomenon was a opinion “rape his determination” about holding the that Id. at 233. In such cases. asked of only preсise question if the were opinion why sexual assault course, counselor’s proof is in the him. Of there no tell usually assailants not to deliberately ask deputy sheriff victims record the the impermissible opinion “rape not an injected opinion determination” his 1340 truthful, ex the victims’ versions of the sexual abuse we testimony was victim’s incidents, upon psychologist’s based plained: victims, testing “con- interviewing the say not expert did process the In the psychologist’s stituted a evaluation of opinion with or held believed she in the lying the victims were ‘re- whether of the the version respect victim’s porting.’” measuring P.2d at In 362. the assault. She did surrounding events error, quantum the of harm caused the the victim’s truth vouch the not strength prosecu- the we considered so not construe testimony, and we will against the found tion’s case accused. We furnished. opinion which she the guilt that the evidence accused’s at 233-34. Id. overwhelming. physical Id. No evi- considered Having carefully it; dispute factual supported dence close “rape determination” Nethercott’s Sheriff existed in the testimonial evidence. We Lessard, can light in the we credibility jury the central noted that Nethercott, the unlike only conclude that issue. at 363. In these several re- Id. Lessard, infer that he in be- counselor spects, similarities between Zabel respect with opinion or held lieved respect, exist. In another instant case surrounding of the events version victim’s however, is There the Zabel different. “rape He determi- linked the assault. closing prosecutor argument relied on story.” only “her can with nation” about the vic- psychologist’s “rape as noth- determination” construe Here, credibility. Id. 363. tims’ at vouching for than his inferential ing less closing prosecutor’s argument makes no testimony. In this truth of victim’s “rape deputy mention sheriff’s about is different from regard, this case specific determination” (Wyo.1987),
Brown v.
foregoing
In
to the above and
addition
held,
things,
among other
factors,
also
into account
we have
taken
psychologist
clinical
existed when the
practice
universally recognized
certain
opin-
objection that
testified without
dynamics. The
sheriff was the
the victim of sexual
prosecutrix
ion
practicing
prosecution’s first witness.
Brown,
Id.
1114-15.
molestation.
at
familiar
the theories of
bar is
with
psycholo-
the clinical
trial court allowed
recency.
primacy
theory
The former
testify
the results
several
gist to
remember
jury
holds
tends to
victim;
given
tests
how-
personality
first;
theory
holds
which it hears
latter
ever,
not allow the wit-
the trial court did
remember that
that the
also tends to
testify
either
victim’s
ness to
Following
last.
which it hears
of the assault or
witness’ belief
version
testimony, eleven other witnesses
sheriff’s
telling the
victim was
truth.
Id.
testified,
including
the victim and
Thus,
results,
Brown,
test
penultimate wit-
lant.
was the
opinion
witness’
credibil-
appellant,
than the victim and
nеss. Other
connecting
link
witness’
ity, was
witness testified about
one other
a sexual moles-
opinion that
victim was
happening
the victim and
activities
between
ultimate conclusion
victim
tation
home. That
appellant at the latter’s mobile
jury that the victim was
drawn
to be
good
appellant’s.
friend of
witness was
Here,
contrast,
truth.
telling the
At
mobile home when
*9
connecting the witness’ determination
arrived,
link
the
first
this witness soon
victim
raped
the
the victim had been
with
Allegedly returning
to get
left
more beer.
by
jury
later,
the
conclusion to
drawn
did not see
ultimate
be
some
this witness
time
telling
victim,
the truth was
the victim was
the
heard
the
opinion
through
of
victim’s
door. The
only the witness’
their voices
bedroom
testimony
particularly
not
credibility.
sum of
was
revealing.
Zabel,
analysis,
plain
under a
we
In
light of the
testimony
presented
The
in the
psychologist’s
a clinical
issue
held that
close
backdrop
is a
one
factual
of this case
having
signs of fabrication оf
seen
of
years.
last
truly
upon the most careful exer-
ten
When the examination
calls
Taylor’s personal experiences
Weigh-
turned Ms.
judicial judgment.
of delicate
cise
dealing
victims,
in
factors,
sexual assault
foregoing
ing
of
above and
all
the
to defense
the
depu- became evident
counsel that
of
that the admission
the
we conclude
prosecution might
trying
qualify
Ms.
“rape
ty sheriffs
determination”
Taylor
expert
pur-
as an
witness for the
judicial
in
our
confidence
the
undermines
pose
expanding
scope
desig-
of
of her
jury’s
Consequently, we hold that
verdict.
nated
The trial
an-
that, had
possibility
exists
reasonable
met
in
nounced
recess and
with counsel
“rape
not heard the
sheriffs
so that defense
could
chambers
counsel
the verdict
testimony,
determination”
objection concerning
scope
raise an
might have been more favorable
Taylor’s testimony.
Ms.
retrial,
and the trial
lant. On
сounsel
judge
appropriate
shall take all
measures
chambers,
prosecution
confirmed
to ensure that such
does
suspicion
prose-
defense counsel’s
jury.
reach the
Taylor
cution intended to use Ms.
as
expert
testify
rape
witness to
victims
possibility
a reasonable
exists that
Since
prosecution
and how
act. The
ex-
evidentiary
assigned
remaining
issues
plained
had
Taylor
that it
to use Ms.
retrial,
may
here as errors
recur at
purpose
because of the trial court
them
time.
shall discuss
at this
Clausel,
that Dr.
earlier ruled
Jeff
whom
prosecution
initially
to use
intended
Ill
purpose,
testify.
for this
Al-
could not
COUNSELOR’STES-
SEXUAL ASSAULT
though
recognized
the trial court
that Ms.
TIMONY EXCEEDING PERMISSI- Taylor
expert
field,
was an
her
it ex-
BLE
PRETRIAL
SCOPE OF
DESIG- plained
preju-
defense would be
FOR VICTIM’S
NATION/VOUCHING
expansion
unfairly
proposed
diced
CREDIBILITY
scope
designated
Taylor’s
of Ms.
testi-
its
mony since the defense had released
ninth
prosecution’s
and last wit
expert
subject
in reli-
оwn
witness on
Jacque
Taylor,
ness was
Director
ruling
ance on the trial court’s earlier
bar-
Family
on
Office
Violence
Sexual As
ring
testimony. Consequent-
Dr. Clausel’s
Riverton, Wyoming.
prosecu
sault
prosecution
ly,
trial court ruled that the
list
tion’s witness
filed with the trial court
scope
Taylor’s
Ms.
was limited to
testify
designated
this witness would
designated
testimony as
earlier.
Taylor
testify
as
“Ms.
will
as to
follows:
recess,
victim,
her
physical
the statements
When
trial resumed after the
condition,
prosecution
Taylor
asked Ms.
and emotional
and foundation
whether
on
photographs of the victim”. The trial court
she had been called out
a sexual assault
Taylor
objec-
call
testify
ruled that Ms.
could not
on October
Without
tion,
“I
statements to
she answered:
was called to
victim’s
rape
I
informed that a
victim
her.
hospital
and I
en route
early
prosecution’s
direct examina-
her there.”
meet
Taylor
tion of Ms.
covered her educatiоnal
Ms.
background, past
employment,
appeal,
asserts that
and current
Taylor, by stating
she
to meet a
nature
done
her and the
work
Family
rape
hospital,
for the
and Sexual As-
victim at the
vouched
Office
Violence
sault,
training
credibility
testifying
and was
as an
specialized
dealing
her
victim’s
including
expert
violation of the
with victims of sexual assault
witness
scope
her
counseling
ruling limiting
kits
rape
use of
both vic- court’s
emo-
experience
physical
perpetrators,
tims and
*10
pho-
for
dealing
and foundation
conducting training sessions
with tional condition
victims,
argues that
experience
tographs
Appellant
particular
and her
in
taken.
dis-
testimony
Stephens. We
dealing with
of victims over the
this
violated
thousands
testimony
Taylor
then
Taylor’s
trial court
instructed Ms.
agree. Examining Ms.
“[j]ust
Exactly
the question.
to
answer
context,
stated that she
we conclude she
her emotional
what has
state been since
go
to
asked
Taylor
Ms.
15th?”
then described
October
testimony
her
could have understood
it.
not in the
limited sense and
sense
in that
Tay-
Ms.
appeal, appellant
On
claims that
by appellant. By no stretch of
argued
testimony
experienced
lor’s
“She’s
some
concluded that
imagination can it be
fairly
responses in denial and mini-
typical
testimony
Taylor
Ms.
innocuous
such
incident,
mization
fear around —”
of
vouching
credibility.
We
victim’s
for the
vouching
amounted to a
victim’s
therefore,
testimony
hold,
that this
did not
Stephens.
credibility in direct violation of
Further,
Stephens.
we find that
violate
carefully
testimony
We have
considered the
testimony
preliminary
nature
this
and noted
the defense coun-
context
factual foundation
simply established
interrupted
objected
sel
before Ms.
hospital
Taylor’s
for Ms.
visit to
where
Taylor
portion
her testi-
completed
physi-
the victim
observed her
she met
mony
judge
and that the trial
then instruct-
Clearly,
emotiоnal condition.
this
cal and
Taylor
ed Ms.
to limit her
to what
answer
scope
not
her
testimony did
exceed
Tay-
she
do
Ms.
observed. We
not believe
In this
re-
designated testimony.
latter
partial
lor’s
answer went so far as to rise
made
objec-
defense counsel
spect, since
Although
the lan-
Stephens
to
violation.
has
tion at
been
suggests
guage “fairly typical responses”
appeal.
preserved
comparing
is
emo-
the witness
Taylor’s
on in
ex
pattern
Later
Ms.
direct
tional state with the
of emotional
amination,
generally
court allowed her to
behavior
other sexual
observed
victims,
assault
held that such
have
testify,
objection
over defense counsel’s
comparison testimony
properly
from a
testimony
rape
that her
kit exam
is ad-
qualified
expert
and offered
witness
exceeding
procedure
scope
ination
vouching
does not
missible and
amount
designated testimony.
аppeal,
her
credibility. Griego
for the victim’s
v.
challenge
does
the trial
State,
(Wyo.1988);
761 P.2d
978-79
admissibility
ruling on
this
court’s
732 P.2d
1044-48
Scadden
Rather,
Taylor’s testimony.
facet of Ms.
(Wyo.1987);
Lessard,
233-
challenges
phase
later
her
gravamen
34. The real
com-
answering
which she was
reduced, therefore,
plaint
Taylor’s
Ms.
is
question asking her
de
prosecution’s
having
testify
expert
as an
started
points
the victim’s emotional state at
scribe
beyond
scope of
testi-
designated
her
days
in time two
after the assault and since mony. Appellant
expert wit-
dismissed his
answering
question,
Ms.
that date.
ruling
ness because the
court’s
Taylor testified:
prosecution
expert testi-
would have no
experienced
fairly typical re-
She’s
some
mony
agree
nature.
of this
We
sponses in denial and minimization of the
Taylor’s
gone
Ms.
unchecked so
incident, fear around—
expert
in full bloom
the jury,
would have reached
then
point,
interrupt-
defense counsel
At which
сomplaint would
taken. Un-
lant’s
be well
ed, making
following speaking objec-
circumstances, however,
der the
the trial
tion:
nipped in
appropriately
the bud Ms.
honor,
getting
again.
Your
we’re
outside
Taylor’s expert testimony.
hold that
up,
keep standing
hate to
I
retrial,
confi-
no error occurred. On
we are
attempting
testify
was—she’s
witness
repeated.
dent this scenario will not be
expert capacity
point
at this
in an
when
talking
fairly normal and
she’s
IV
stuff.
standard reactions and
HEARSAY TESTIMONY
testify
wasn’t
as to those
She
listed
they’re
things,
trying
to back-door
points to three instances
direct exami-
now.
Nethercott’s
in here
Sheriff
*11
unequivocal
prove
rule of
and to
hearsay
testimo-
law
testimony which
nation
right
a
under the
denial of
substantial
cir-
ny was admitted.
cumstances.
when
instance occurred
first
The
described what
deputy sheriff
agree
to
We are inclined
with the state’s
patrol
in his
car to
placing the victim
after
as
pоsition. Although the record is clear
that
hospital. He testified
her to the
take
about,
testimony complained
we hold
hospital,
left for the
as
“[the victim]
has
appellant
that
failed to demonstrate
and said that was
pointed out a trailer
“transgression
unequivo-
of a clear and
Although
raped.”
house
she was
where
way.”
cal rule of law in a clear and obvious
objected nor moved
counsel neither
defense
Jones,
Considering
The doctrine will pellant complains depu occurred when the seriously only the error af- plied where ty sheriff that the victim told him testified integrity judicial the fairness or fects clothing left her she had transgres- There must be proceedings. being trailer and “described them as Wran unequivocal rule of sion of a clear and jeans panties.” gler blue with Garfield De law, way, which in a and obvious clear lodged hearsay objection fense counsel as right. adversely a substantial affects given. description soon as objection, trial court sustained the but not (Wyo. Jones omitted). answered. 1978) question ed that been (citations Defense did not then to have counsel move sweeping argument, appel- In a but brief from the trial court strike answer deputy sheriffs testi- that the lant asserts disregard record and instruct the house where mony that was said “[she] the answer. raped” amounted to statement she was provid- raped the victim and presents again, appellant the same Once her forсe to tes- ed additional corroborative brief, argument. The state coun- sweeping timony. adds that statement prejudicial, was not ters that prove the truth of mat- was offered to out both the victim and pointing asserted, i.e., raped, and that ter she was clothing, her that she left lant testified right his constitutional he was denied shirt, from the except when she ran confrontation. agree the state’s home. We mobile issue with The state takes any prejudice fail see position. We assertions, arguing disputed point. never appellant on this He 801(c)since hearsay Wyo.R.Evid. under clothing were in victim’s articles not offered for the truth it was home, and allowed the his mobile raped,” “she was assertion hold that sheriff to take them. We identified a mobile home show that she demonstrated. error is happened. Alterna- the encounter where ap third instance about which if the tively, contends that testi- the state depu comрlains when the pellant occurred hearsay, qualifies as an excit- mony was his interview exception Wyo.R.Evid. ty sheriff testified about under ed utterance “I hospital cafeteria: under the the victim 803(2), the victim was since Upon used.” that a dildo had been by her encoun- learned excitement caused stress of testimony, defense counsel ob hearing that pointed she out the appellant when ter with grounds hearsay and moved way jected on home on her mobile trial court overruled has it be stricken. failed The state contends objection. of a clear and to demonstrate violation *12 1344 brief, gestion might that this so. But more again relies on the same
Appellant important, it is clear that statement presented on the other sweeping argument why explanation no more than an instances The state an assigned as error. taking the to the deputy victim claiming the evi- argument by swers rape evidentiary еxamination. hospital for the exercise of dentiary ruling was within really determination at that time was His and no sound discretion trial court’s shattering in very earth view not has shown. that discretion been abuse of counsel facts then determined. Defense (Wyo. P.2d 1271 Gentry v. It object, good and for reason. failed 1991). agree with again, Once we simply explana- that it was an was obvious posses dispute Appellant did state. investigation: step next in his tion for the or his use of of the dildo sion hospital. i.e., taking the victim to the The his use only The issue was whether victim. enforce- message this court sends law consent. testi it was with her approved is that the ment now these matters. points fied at several be, “I she had not been will determined to see how he was Consequently, we fail hospi- raped, decided to take her to the by prejudiced the admission possibly anyway.” rape evidentiary exam tal for a hold that no question. present at the trial and This court was not admit when the trial court error occurred dynamics cannot know the court- ted this present, Had been I am room scene. we reversing and re- summary, we are impressed by also would have been sure we manding for a new trial because counsel, by lack of concern all. To trial testimony, that he de- sheriffs unsolicited preliminary explana- the statement was a raped after the victim had been termined step investigation. in the tion to the next per story, amounted to error se hearing her counsel, appellate it was some- To different opin- expression of as the inadmissible thing upon from a search of the to seize credibility. credi- victim’s' Since ion of the record. case, jury issue in this bility was the chief testified that when he ar- detective this case for compelled are to return house, he found the rived at the Hurst’s strong admonition that this retrial with hysterical, crying and ob- victim recur. type of error not breast, and her served bruises on her arms remanded for trial. Reversed and scrapes on her shoulder and as well as that, expe- on his thigh. He testified based CARDINE, J., dissenting opinion. files a rience, injuries which he concluded was clad he observed were fresh. She CARDINE, Justice, dissenting. crying shivering. in a shirt and was totally disagree I I dissent because police report herself to had called the She “that a reason- majority’s conclusion rape. Each of these observations that, possibility exists able dep- just statements were made before ‘rape determina- heard the sheriff’s raped uty sheriff determined she had been might have testimony, the verdict tion’ hospital. There took her to the appellant.” more favorable been significant evidence addition credible The entire statement Sheriff lead reason- her statement that would Nethercott, majority finds able, police James offiсer to believe experienced destroyed someone, the entire was: and that is raped she had been way preliminary in a all the officer said story and made a deter- I listened to taking hospital. her to the Under explain I raped, mination that she been fairly imagination can we no stretch of my patrol car take her to placed her in upon relied say that Nethercott Officer alone and thus was of the victim statement nothing to elicit the prosecutor credibility. vouching for her opinion. There is no evi- deputy sheriff's produced four-day trial that to make This was a that the witness was advised dence The trial pages transcript. statement, majority’s sug- over 700 despite testimony of 11 witnesses and included majority COOK, of words. numbers
countless Thomas R. Richard A. a/k/a *13 competent Dowdell, verdict based jury Appellant (Defendant), undermines a single spoken by a wit- upon a few words v. These out of context. few ness and taken Wyoming, The STATE of аny of without words were uttered (Plaintiff). Appellee associated with conten- typical fanfare perfect, No trial is as is tious evidence. PETERSON, Appellant Paul J. here, pres- the record does evident (Defendant), usurp jury’s evidence to ent sufficient authority. sheriff’s Because v. many during one of statement was Wyoming, STATE lengthy and because the statement (Plaintiff). Appellee opinion than as just was based on more credibility, impossi- I find it to the victim’s 91-100, Nos. 91-101. deputy’s statement ble believe Supreme Wyoming. Court of the next jury moved for three so to hear and days were unable consider 20, Nov. fairly decide the case. the evidence and did not The statement affect substan- right important three
tial reasons.
First, the and manner of the admis- time the deputy sheriffs statement was
sion greater significance than
of no voluminous the other
Second, sheriff’s statement and clearly grounded on
determination were opinion credibility than
more Third, story. there was no must not
objection. Defense counsel have
thought important this court as as objection Lack of object.
did not invokes plain plain error doctrine. For present, three elements must be estab- First, clearly record must show
lished:
what occurred at trial without resort Second,
speculation. the existence of a unequivocal of law must
clear and rule way.
have been violated an obvious
Third, adversely this violation must have right of the ac-
affected some substantial State, 811 P.2d
cused. Monn v.
(Wyo.1991); Rands (Wyo.1991). There was not violation of unequivocal rule of law as
a clear and plain error. convic-
would constitute affirmed.
tion should be