Chambers v. State
| Decision Date | 22 October 1986 |
| Docket Number | No. 84-240,84-240 |
| Citation | 726 P.2d 1269 |
| Parties | Craig Allen CHAMBERS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Leonard D. Munker, State Public Defender, Martin J. McClain, Deputy State Public Defender (argued), and Gerald E. Huber, Student Intern, for appellant.
A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., John W. Renneisen and Sylvia Lee Hackl (argued), Sr. Asst. Attys. Gen., for appellee.
Before THOMAS, C.J., and BROWN, CARDINE, URBIGKIT, and MACY, JJ.
Appellant Craig Chambers was convicted by a jury of second degree sexual assault under § 6-2-303(a)(v), W.S.1977. During the trial, the district court admitted the videotaped, out-of-court testimony of the alleged victim. The court also allowed the jury to view the videotape twice during deliberations. Appellant contends that the hearsay rule and his right of confrontation were both violated when the videotape was shown at trial. He also maintains that it was fundamentally unfair for the jury to view the videotape during deliberations. 1 We will reverse and remand for a new trial.
On the evening of January 30, 1984, appellant arranged to meet the victim's aunt at the home of the five-year-old female victim. The victim's mother consented to the appellant coming to her home upon the condition that her sister, the victim's aunt, leave with appellant upon his arrival. Before appellant arrived, the victim's aunt took sleeping pills to combat a headache and fell fast asleep. Appellant arrived and was permitted to remain with the aunt in the living room until the drug wore off and she could be aroused. The victim's mother went to bed.
The victim's statement of what occurred was heard by the jury six times; it was heard once when she testified live, twice when her mother and the police officer each repeated her testimony, and three times on videotape. According to the victim, appellant came to her bedroom late that night, awakened her, and asked her to come to the living room with him. They sat together on a loveseat next to the couch where the victim's aunt was still sleeping. Appellant tried to induce the victim to touch his genitals. When that failed, he fondled her partially unclad body and inserted his finger into her vagina. The victim's mother heard her daughter's voice from the living room and told her to go back to bed. The victim then went to the bathroom but was followed by appellant who kissed her on the chest and stomach. She then went to bed and was not molested further.
Appellant and the victim's aunt left the following morning. After they were gone, the victim told her mother what had happened, and her mother immediately called the police. Officer Jack Branson of the Evansville Police Department visited the victim at her home that morning, listened to her story, and contacted the Department of Public Assistance and Social Service to arrange for a physical examination; but, because of a mixup, no examination ever took place.
On February 3, 1984, three days after the incident, the victim and her mother went to the Natrona County Sheriff's Office for a videotaped interview. Present at the session were the victim, her mother, a cameraman, Officer Branson, and Officer Judi Cashel of the Casper Police Department. A criminal complaint had not yet been filed against appellant so neither he nor his attorney observed the session.
In the twenty minutes of questioning, Officers Branson and Cashel were able to cover the entire incident in substantial detail. As might be expected, many of their questions to the five-year-old victim were leading. When the victim became confused or seemed to contradict parts of her earlier story, the examiners would go over her testimony again until a consistent, understandable story emerged. As the session came to a close, the video portion of the interview was cut off, but about thirty seconds of dialogue between the officers, the victim, and her mother could be heard. 2 The victim was praised for her performance.
On February 6, 1984, three days after the videotaping session, a criminal complaint and warrant were filed against appellant charging him with one count of second degree sexual assault and one count of indecent liberties. He was arrested on February 7. A few days before trial, the prosecutor elected to dismiss the indecent liberties count and proceed solely on the charge of second-degree sexual assault. The case went to trial on June 4, 1984.
The five-year-old victim was the State's first witness. She told what happened in great detail, essentially repeating the story she had told the day after the incident and at the videotaped interview. On cross-examination, defense counsel raised the possibility that the victim had fabricated the story under the influence of her mother and the police. He asked her: "How come you remember so well what happened that night with Craig then?" She replied: " 'Cause he,' 'cause they said a letter, handed me and said read all of it, and it had the gross stuff on it." Defense counsel then asked: "Well, then most of what you are telling came from what you read on that letter then?" "Yes," she answered. The letter to which the victim referred was a transcript of her preliminary hearing testimony.
Later in the same cross-examination the following conversation between defense counsel and the victim occurred:
The victim's mother was the next prosecution witness. After explaining the While cross-examining the victim's mother, defense counsel again raised the possibility that the victim had fabricated the story of the sexual assault under the influence of her mother:
events as she perceived them the night of the incident, she was asked by the prosecutor to repeat the story that her daughter had told her the following morning. Defense counsel objected upon hearsay grounds. The prosecutor responded that the statement was admissible because it corroborated the victim's trial testimony. The court overruled the objection. The victim's mother then repeated what her daughter had told her, a story which was consistent with the daughter's trial testimony.
The prosecutor attempted to rebut this charge with his next witness, Officer Branson. He asked the officer to repeat what the victim had said the morning after the alleged assault. Defense counsel made a hearsay objection which the court overruled, and the officer answered the question. This account of the incident matched both the victim's trial testimony and the story her mother had repeated for the jury.
Before Officer Branson was finished, the prosecutor offered a third out-of-court statement to bolster the victim's trial testimony, the videotaped testimony of the victim taken several days after the incident. Over defense counsel's objection, the videotape was shown to the jury in its entirety.
Appellant testified on his own behalf and denied the victim's story which at that point in the trial had been repeated to the jury four times--by the victim, the victim's mother, Officer Branson, and through the videotape. Appellant said that the victim came to the living room on her own because she couldn't sleep, sat on the loveseat by herself, and went back to bed twenty minutes later after her mother called to her. He testified that he never touched her. He alleged that the victim's mother called him on the telephone the next morning after he had left and said she would report him for molesting her daughter unless he paid her $1,000.
As might be expected in a case of this sort, defense counsel's closing argument was laced with charges of fabrication. He emphasized the suggestability of the victim, the failure of the victim's mother to insist on a medical examination, the victim's reliance on her mother to tell her what was true and what was a lie, the contacts between the police and the victim which could have implanted the story in the child's mind, and the fact that the victim's testimony apparently improved each time she told the story.
Closing arguments ended at 10:42 a.m., the day after the trial began; and the jury retired to deliberate. About an hour later, at 11:50 a.m., the jurors sent a note to the judge asking if they could view the videotape of the victim's testimony again. Defense counsel objected, but the trial court ruled that there could be second viewing in open court. The prosecutor admitted that the viewing should normally be in open court but pointed out that the jury might be better able to hear the tape in the jury room. Defense counsel had no objection to this procedure as long as bailiffs were present to make sure the videotape operator did not talk to the jury. The court appointed an operator to play the videotape in the jury room, instructed him to play it without interruption, and ordered him not to say a word to the jury.
Several hours later, at 2:20 p.m., the bailiff notified the court that the jury wanted to view the videotape another time. Defense counsel again objected on grounds...
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