Daniel v. State, 94-195

• Decision Date: 16 August 1996
• Docket Number: No. 94-195,94-195
• Citation: 923 P.2d 728
• Parties: Gregory L. DANIEL, Appellant (Defendant), v. STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 728

923 P.2d 728

Gregory L. DANIEL, Appellant (Defendant), v. STATE of Wyoming, Appellee (Plaintiff).

No. 94-195.

Supreme Court of Wyoming.

Aug. 16, 1996.

Wyoming Public Defender Program: Leonard D. Munker, State Public Defender; Deborah Cornia, Assistant Public Defender; David Gosar, Assistant Public Defender; Gerald M. Gallivan, Director, Wyoming Defender Aid Program; Gaston Gosar, Student Intern, for Appellant (Defendant).

William U. Hill, Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Mary Beth Wolff, Senior Assistant Attorney General, for Appellee (Plaintiff).

Before TAYLOR, C.J., and THOMAS, MACY, GOLDEN ^*, and LEHMAN, JJ.

THOMAS, Justice.

The primary issue in this appeal by Gregory L. Daniel (Daniel) from his conviction on two counts of indecent liberties with a minor is whether the prosecutor was guilty of misconduct in the way he dealt with prior bad acts in the course of the trial. A secondary, but major, issue arises out of Daniel's claim of denial of his constitutional rights to confrontation and due process because of a limitation on the cross-examination of an expert witness for the State. In addition, Daniel claims error based upon prosecutorial misconduct in asking questions and presenting argument that assumed facts not in evidence; a community outrage appeal; cumulative error relating to rulings on the admissibility of evidence intended to impeach Daniel's character witness; questions and evidence concerning collateral matters, hearsay, and testimony about Daniel's prior consistent statements; improper exclusion of expert witness testimony about false memories; and a comment by the investigating officer on Daniel's refusal of a second interview. We hold there was no error with respect to the prosecutor's handling of prior bad acts in the course of the trial nor in the limitation upon cross-examination of the expert witness. None of the other claims of error are sustained by the record. The Judgment and Sentence of the Court is affirmed.

Daniel presents seven issues, which encompass numerous sub-issues, in his Brief of the Appellant:

I. Mr. Daniel was denied his state and federal constitutional rights to confrontation and due process when he was prohibited from cross-examining Dr. [State's witness] concerning an error she made in a previous molestation case involving another defendant.

II. The prosecutor failed to follow the mandatory Dean v. State [865 P.2d 601 (Wyo.1993)] procedure before introducing 404(B) [sic] allegations made by A.H. and K.J.

III. Prosecutorial misconduct denied Mr. Daniel a fair trial when the State's attorney: 1) commented and introduced evidence concerning inadmissible 404(B) [sic] evidence; 2) asked questions assuming facts not in evidence; 3) argued facts not in evidence, and, 4) made an improper community outrage appeal.

IV. A mistrial should have been declared when allegations were introduced that the K. children accused Mr. Daniel of molesting K.K., and these children were later prohibited from testifying, thus depriving Mr. Daniel of his right to confrontation and a fair trial.

V. Cumulative evidentiary error deprived Mr. Daniel of his right to a fair trial.

VI. Rights to present a defense and due process when the court excluded expert testimony on the influence that suggestive interviewing techniques have in producing false memories.

VII. Plain error occurred when Lt. [investigating officer] commented on Mr. Daniel's exercise of his state and federal constitutional right against self-incrimination.

The State, in the Brief of Appellee, articulates these issues:

I. Whether the trial court erred in determining admissibility of evidence under Rule 404(b)?

II. Whether Appellant received a fair trial?

During the summer of 1993, Daniel was on the staff of Therapeutic Foster Care, a program administered by Southeast Wyoming Mental Health Center, and his duties were to be a "big brother" or "guide" for children assigned to that program. Good friends of KS, whom she called "aunt and uncle," served as foster parents for severely neglected and abused children, and two of the foster children in the custody of the "aunt and uncle" were assigned to Daniel. KS and her two younger sisters boarded their horse at their "aunt's and uncle's" ranch, and they spent time each day cleaning pens and exercising horses in exchange for boarding of their horse. Daniel became friendly with KS and her sisters and enlisted their assistance in his work with the two foster children who were under his guidance.

As a reward for KS and her sisters, Daniel had suggested an outing in the Vedauwoo area. They went on this adventure in August and, after enjoying the outdoors and the scenery and climbing rocks, they returned to Cheyenne. Daniel took the three sisters to his house, and KS telephoned her mother to obtain permission for them to spend the night at Daniel's residence. Permission was granted, but only after the mother was satisfied Daniel's wife would be home. Daniel's wife did not appear to be pleased with these arrangements and generally stayed in other rooms in the apartment, having little interaction with Daniel and the sisters.

The entertainment that evening consisted of watching video tapes and, after the first one, Daniel and KS went to purchase snacks, candy, and liquor. After they returned with the food and drinks, each of the girls showered and put on long tee shirts Daniel provided for them to use as sleepwear. After the second video, the two younger sisters went into the spare bedroom of Daniel's apartment, closed the door, and went to sleep. KS stayed in the living room on the couch with Daniel.

Once they were alone, Daniel placed an arm around KS, lifted her tee shirt with his other hand, and placed his hand between her legs. He turned her around, placed her on his lap, and instructed her to kiss him, which she did. After the kiss, KS went into the bathroom because, "I just felt dirty and like I was going to throw up." KS returned to the living room where she and Daniel consumed some of the liquor. Daniel continued with sexual advances and contacts, which culminated in his coating KS and himself with Vaseline and inserting his penis in her vagina. Daniel also engaged in oral genital contact. During these activities, Daniel made written notes describing the victim. After his wife left for work the following morning, Daniel carried the victim into his bedroom and, again, inflicted sexual intercourse upon her. The two sisters were awake and observed Daniel carrying KS into the bedroom.

KS did not immediately complain but, in September, she became plagued by nightmares and attempted suicide twice. A friend became aware of KS's difficulties and told the school counselor. After talking with KS, the counselor called her father and law enforcement officers, who eventually determined the suicide attempts were a result of the sexual assaults. After KS had described the events involving Daniel, the investigating officer asked Daniel to come to the police station for an interview. Daniel denied any inappropriate behavior, but he did concede the three girls had spent the night at his apartment.

The investigating officer pursued the matter and learned Daniel had been a juvenile screening officer and also had served as a "guide" for Therapeutic Foster Care. In pursuing these leads, the officer identified four other children, KJ, AH, KeK, and KaK, ranging in age from six to twelve who informed the officer that Daniel had inappropriately touched them. In addition, the investigation led him to two older females, SB and JP, whom Daniel had been involved with in his role as a juvenile screening officer. Daniel's primary contention of error focuses upon the allusions, at trial, to the four younger victims of uncharged misconduct, none of whom ultimately testified. This claim of error can only be evaluated, as we do below, in the context of the testimony of the older victims of uncharged misconduct, who did testify.

An information was filed in which Daniel was charged with two counts of immodest, immoral, or indecent acts with a minor, KS, in violation of WYO. STAT. § 14-3-105 (1993). ¹ The case was set for trial in March, when a jury was empaneled, and the trial proceeded.

During the second day of trial, a hearing was held in chambers to determine if testimony by the four younger children and the two older females about uncharged misconduct would be admissible as evidence of other wrongs or acts to show preparation or plan as permitted by WYO. R. EVID. 404(b). The trial judge faithfully followed the process articulated in Dean v. State, 865 P.2d 601 (Wyo.1993), and assessed the five factors as those related to the four younger children and also the two older females. The trial court ruled the two older females would be permitted to testify; two of the younger children were competent and would be permitted to testify; and the other two children were not available, so a determination as to whether they could testify was not made at that time.

The record before the court is not clear as to exactly what occurred, but the parties agree a mistrial was declared on the third day of trial because, on cross-examination by Daniel's attorney, testimony concerning a proposed polygraph examination of Daniel was elicited from the investigating officer. After the declaration of mistrial, a new jury was empaneled the following week, and the case was retried.

The victim testified as to what occurred. Her two sisters corroborated her narration of the event; confirmed their location in the bedroom; and reported observing Daniel carrying their sister into his bedroom the following morning. At least one adult who was close to the victim described radical changes in her behavior immediately after the assaults. In addition, an examining physician testified about injuries she observed indicative of, and consistent with, "forceful penetration," that is, sexual...