Alicea v. State, 99-212.
| Decision Date | 01 December 2000 |
| Docket Number | No. 99-212.,99-212. |
| Parties | Felix ALICEA, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Representing Appellant: G. Kevin Keller, Cheyenne, WY. Argument presented by Mr. Keller.
Representing Appellee: Gay Woodhouse, Attorney General; Paul Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Mary Beth Wolff, Special Assistant Attorney General. Argument presented by Ms. Wolff.
Before LEHMAN, C.J., and THOMAS, GOLDEN, HILL, and KITE, JJ.
Appellant Felix Alicea (Alicea) seeks review of his convictions on six counts for committing sex crimes on children. Alicea contends that the trial court erred in failing to hold a pretrial hearing to determine if the children had sufficient memory to be considered competent to testify. He also asserts that a "taint" hearing should have been conducted to determine if the victims' testimony had been so corrupted by the investigative interviews conducted by a pastor and a school teacher at a religious school, as well as by a detective and a social worker, in preparation for prosecution, that the children's testimony was no longer admissible at trial. In addition, he claims that inadmissible hearsay testimony was admitted over his objections; that an instruction given to the jury relieved the State of its burden of proving all elements of the crime beyond a reasonable doubt, in that the instruction did not require the jury to find that the crimes charged occurred within some sort of time frame; the trial court erred in denying various motions for judgment of acquittal; and, under the somewhat unusual circumstances of this case, he was denied his right to a speedy trial.
We affirm in part, reverse in part, and remand for resentencing in accordance with this opinion.
Alicea raises these issues:
The State rephrases the issues thus:
Child abuse, of course including child sexual abuse, must be reported to the authorities by all persons, and some classes of persons are under a heightened duty to report such matters. Wyo.Stat.Ann. § 14-3-205 (LEXIS1999). On January 25, 1997, Fritz Krieger, Pastor of the Cheyenne Seventh Day Adventist Church, was told by his daughter that a friend of hers had related a story which indicated that DC (born January 12, 1982) and WC (born April 17, 1985) had been subjected to improper and illegal sexual activity by Alicea. Krieger and a teacher from the church's school, Jeannie Costopoulos, met with the children on the evening of January 27, 1997, to ask about the story related by Kreiger's daughter and another of DC's friends. Based on these events, Krieger made reports to the Department of Family Services and to the Laramie County Sheriff. On January 29, 1997, DC was interviewed by Sergeant Linda Renner of the Laramie County Sheriff's Office and Donna Lucas from the Department of Family Services. As a preface to her accusations, DC related that the events occurred in Alicea's mobile home. According to DC, Alicea would ask his own children to go to the "Mini Mart" Store, leaving DC and WC behind, and then he would close the blinds and lock the door. In that interview, DC identified her private bodily areas as "peaches" (breasts), vagina, and "butt." She also identified a male individual's private bodily areas as "dick" (penis) and "butt." DC's first revelation was that Alicea had her touch his "dick." She estimated the time of that occurrence as "two or three years ago." DC stated that both she and her brother touched Alicea's "dick" with their hands and with their mouths. She also stated that Alicea touched her vagina, but that he did not touch WC's private bodily areas. DC also indicated that Alicea would have her on the floor and lie on top of her, rubbing his "dick" both on the outside of her vagina and pushing his "dick" inside her vagina. DC could not remember any specific dates, but told the investigators that the last time it occurred was "two years ago" in April (1995). DC indicated that Alicea had done those sorts of things to her about 30 times. DC indicated that the abuse began when she was five or six years old and ended when she was eleven or twelve.
WC was also interviewed by Sergeant Renner and Donna Lucas. His interview was considerably less revealing. WC identified his penis and his "butt" as his private bodily parts. WC related that Alicea would have the children "touch the penis and then, ummm, move up and down and stuff." Alicea's pants were pulled down when this occurred. WC could not recall how many times these events occurred but indicated that it happened every time they were there, and they were there about once every two weeks. WC's indication was that the abusive conduct occurred at least 20 times, but he was not able to give a more precise number. Alicia told both children not to tell anyone about what they were doing. Many of WC's recollections were vague, but he did say, "I know for sure that I had to touch his penis." As will become evident as we progress through the issues in this opinion, the testimony furnished at trial by DC and WC differed significantly from the statements outlined above.
On August 13, 1997, an information was filed in the district court alleging ten counts of violation of sexual assault in the second degree or immoral or indecent liberties with a child by Alicea. In the context of that case, the prosecution gave notice that it intended to use W.R.E. 404(b) evidence of other crimes, wrongs, or acts. Specifically, they asked the trial court to approve use of similar allegations made by a third female child as evidence in the case. The district court conducted a hearing as required by Vigil v. State, 926 P.2d 351, 357 (Wyo.1996), and concluded that the proffered W.R.E. 404(b) evidence was not admissible. The prosecutor then filed a motion asking the trial court to reconsider its ruling, or, in the alternative, to permit the State to dismiss the charges without prejudice (i.e., they could be subsequently refiled in a second case). The trial court declined to reconsider its ruling, but did dismiss the charges without prejudice by order entered on July 6, 1998.
On July 27, 1998, a second information was filed in the district court. This information also alleged 10 counts involving three different children, DC, WC, and KW. Four of the ten counts involved KW, and recounted events that the prosecution had attempted to use as W.R.E. 404(b) evidence in the first go-around. At the preliminary hearing stage, the county court did not find probable cause to bind Alicea over on the counts involving KW; however, it did bind over the other six counts affecting DC and WC. Preparation then went forward for trial on those six counts.
Alicea maintains that the district court abused its discretion in denying a pretrial competency hearing to address Alicea's contention that neither DC nor WC were competent to testify because their memories of the events at issue and, hence, their proposed trial testimony, were too deficient and had been tainted in the process of interviews with the church pastor and school teacher, as well as law enforcement personnel. We have held that when a child is called into the courtroom to testify, and the child's competency is called into question by either party, it is the duty of the trial court to make an independent examination of the child to determine competency, and that determination will not be disturbed unless shown to be clearly erroneous. English v. State, 982 P.2d 139, 145 (Wyo.1999). In English, we also held that an assertion that a child's testimony was tainted could best be comprehended as a part of the competency hearing and that a separate taint hearing is not required. 982 P.2d at 146. In English, we established that the requirement that a competency hearing on the issue of "taint," based on an assertion that the child's statements were the product of suggestive or coercive interview techniques, or some other potentially improper influence, is triggered whenever a party presents the court with "some evidence" that a child witness is incompetent1. 982 P.2d at 146-47; Ryan v. State, 988 P.2d 46, 58 (Wyo. 1999).
Alicea contends that he presented the trial court with "some evidence" that the children's memories were both faulty and tainted and, therefore, it abused its discretion in not conducting a full-fledged "taint" hearing that included questioning of the children. It is clear from the record that the trial court comprehensively reviewed all materials of record that had a bearing on this issue, and that he patiently considered all arguments and testimony offered by Alicea with an open mind. His conclusion was tacitly that the required showing of "some evidence" was...
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