Bush v. State, S-07-0247.

• Citation: 193 P.3d 203,2008 WY 108
• Decision Date: 17 September 2008
• Docket Number: No. S-07-0247.,S-07-0247.
• Parties: David Labon BUSH, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: United States State Supreme Court of Wyoming

193 P.3d 203

2008 WY 108

David Labon BUSH, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. S-07-0247.

Supreme Court of Wyoming.

September 17, 2008.

Representing Appellant: Diane Lozano, State Public Defender, PDP; Tina N. Kerin, Appellate Counsel; Kirk A. Morgan, Assistant Appellate Counsel. Argument by Mr. Morgan.

Representing Appellee: Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney

General; Jenny L. Craig, Assistant Attorney General. Argument by Ms. Craig.

Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.

KITE, Justice.

[¶ 1] In 1990, Lynn Bush, the 26-year-old wife of David Labon Bush, disappeared. Fifteen and one-half years later, in 2006, the State charged Mr. Bush with first degree murder in connection with his wife's disappearance, although her body was never found. In 2007, after a 12 day trial, a jury convicted him of second degree murder.

[¶ 2] Mr. Bush appeals his conviction, claiming the district court violated his constitutional right to confront the witnesses against him and abused its discretion when it permitted two witnesses to testify about statements his daughter made to them during counseling and two other witnesses to testify by video teleconference. He also claims the district court violated his constitutional right to present a defense when it prohibited him from introducing evidence of an alternative suspect. Finally, he claims the State violated his right to due process when it waited fifteen and one-half years to file charges against him. Finding no reversible error, we affirm.

ISSUES

[¶ 3] Stated succinctly, the issues Mr. Bush asks this Court to consider are:

1. Whether the district court violated his Sixth Amendment right to confront the witnesses against him or abused its discretion when it allowed a counselor and a psychiatrist to testify concerning statements his daughter made to them.

2. Whether the district court violated his Sixth Amendment right to confront the witnesses against him when it allowed two witnesses to testify by video teleconference.

3. Whether the district court committed reversible error when it excluded evidence of an alternative suspect.

4. Whether the delay in filing charges against him prejudiced his defense, thereby violating his right to due process.

FACTS

[¶ 4] On December 9, 1990, Officer Mike Thompson responded to a call at a grocery store parking lot in Casper, Wyoming. When he arrived, Mr. Bush told the officer that his wife, Lynn, had gone to the store the previous day and never returned home. Mr. Bush said that he found her pickup truck parked in the lot, the driver's side door ajar and the keys lying on the ground nearby.

[¶ 5] On December 13, 1990, police officers served Mr. Bush with a search warrant and seized the pickup truck. They searched the pickup and found what appeared to be blood stains in numerous locations throughout the cab. According to one officer, as he was watching the search, Mr. Bush commented, "[W]hy are you doing this? I'm the murderer."

[¶ 6] Officers also sprayed the inside of the pickup with luminol¹ which indicated that a large amount of blood may have been in the passenger area. Police officers searched the Bush home and found a vodka bottle with what appeared to be blood on it. Police interviews of friends and family indicated that it was unlikely Mrs. Bush would have left home voluntarily without her daughter. Some of those interviewed also expressed their belief that Mr. Bush was somehow involved in her disappearance, in part because of comments he allegedly made about committing the perfect murder and disposing of a human body where it would never be found.

[¶ 7] Subsequent DNA testing identified the blood found in the pickup truck and on the vodka bottle as most probably that of Mrs. Bush. On July 31, 2006, fifteen and one-half years after Mr. Bush reported his wife missing, the State charged him with first degree murder in connection with his wife's disappearance. Mr. Bush entered a plea of not guilty and filed a motion to dismiss for violation of his due process rights, claiming the lengthy delay in charging him was prejudicial to his defense. The district court denied the motion after a hearing.

[¶ 8] Subsequently, the State filed a motion to exclude evidence of an alternative suspect. The district court heard argument on the motion and ruled that Mr. Bush must first demonstrate to the court that sufficient evidence supported his theory that someone else murdered his wife before he would be allowed to present the evidence to the jury. Mr. Bush filed an offer of proof and request for admission of alternative suspect evidence. The district court convened another hearing and concluded the evidence Mr. Bush presented was not sufficient to allow him to present the matter to the jury. The district court indicated, however, that Mr. Bush could ask for reconsideration of its ruling as the trial proceeded.

[¶ 9] A jury trial began on March 5, 2007. On March 20, 2007, the jury found Mr. Bush not guilty of first degree murder but guilty of second degree murder. Mr. Bush filed a motion for a new trial claiming that, given the ruling prohibiting him from presenting evidence of an alternative suspect, it was improper for the State to tell the jury in closing argument that he was the only person who had the opportunity to kill Mrs. Bush. After a hearing, the district court denied the motion. The district court sentenced Mr. Bush to a term of 45 years to life in the state penitentiary with credit for 325 days served prior to sentencing.

DISCUSSION

1. Admission of Evidence of Mr. Bush's Daughter's Out-of-Court Statements — Abuse of Discretion or Violation of Confrontation Right

[¶ 10] During the trial, the district court allowed Lynn Gordon, a licensed professional counselor, and Dr. Robin Eicher, a board certified licensed psychiatrist, to testify concerning statements Mr. Bush's daughter made to them during their treatment of the child in 1991, 1992 and 1993, when the child was not yet five years old. Mr. Bush claims the district court abused its discretion in allowing the hearsay testimony and that its admission violated his Sixth Amendment right to confront the witnesses against him. The State responds that the district court properly admitted the statements under W.R.E. 803(4) and that Mr. Bush's Sixth Amendment right was not violated because the child's out-of-court statements were not testimonial and did not implicate the confrontation clause.

[¶ 11] The facts underlying the statements at issue are these: After Mrs. Bush disappeared, her daughter was removed from Mr. Bush's custody and placed in the legal custody of the Wyoming Department of Family Services (DFS) and the physical custody of her maternal grandparents.² The grandparents observed some unusual behaviors by the child and sought treatment for her at Northwestern Mental Health Society in Sheridan. Initially, Bruce Andrews cared for the child. In April of 1991, when the child was almost three years old, Ms. Gordon took over her care. Ms. Gordon treated the child for over two years, typically seeing her once per week. Over the course of the treatment, the child made statements to Ms. Gordon implicating Mr. Bush in her mother's disappearance.

[¶ 12] In the course of the custody proceedings, DFS referred the child to Dr. Eicher for an evaluation. Dr. Eicher saw the child twice in 1992 and once in 1993. During these sessions, the child made statements to her implicating Mr. Bush in her mother's disappearance.

[¶ 13] At the trial in 2007, the State called Mr. Bush's daughter, who was then 18 years old, to testify. She testified on direct examination that she could not remember any of the events in 1990. She testified that the counseling she had as a child pretty much made her unable to remember what had happened. Defense counsel did not cross-examine her.

[¶ 14] The State then called Ms. Gordon and Dr. Eicher to testify about the statements Mr. Bush's daughter had made as a child during therapy. Defense counsel objected to the testimony on hearsay grounds but did not object on the basis of the confrontation clause. Responding to the objection posed, the district court ruled that the statements were admissible under W.R.E. 803(4), as statements made for purposes of medical diagnosis or treatment.

[¶ 15] Ms. Gordon proceeded to testify that the child "talked about seeing mommy cut in two and put in two holes, and seeing mommy with blood wiped off of her." Ms. Gordon testified that the child told her that "daddy had hurt mommy and gave her an owie" and "would talk about mommy being cut and daddy cutting mommy." She testified that the child told her "Mommy is where the Christmas trees are," "Mommy got her head split open," "Daddy shot Mommy," and "Mommy is in Kaycee." Ms. Gordon testified that on one occasion the child took a toy knife, acted out cutting her belly and said, "This is how my mommy got cut." Ms. Gordon testified that the child consistently indicated that it was "daddy" that had hurt "mommy." The child also said that "daddy said don't say anything to [Ms. Gordon]" and "daddy said he would kill [me]." During one counseling session, she told Ms. Gordon her "mommy is dead," she is "in the mountain," and "Daddy is bad."

[¶ 16] Dr. Eicher testified that during her first meeting with the child, who was then four years old, she drew a picture of her mommy, put tape on the picture and said, "We have to put [tape] on our mommies' owies" and "let's just pretend she doesn't have an owie." She testified that the child said she did not "want to live with daddy; he might cut me, too." Dr. Eicher testified the child also told her that she "had a dream about my daddy killing my mommy." Dr. Eicher asked her what the dream was like, if it was like her memories or if it was different from her memories. She responded, "It...