Dean v. State, No. S-08-0017.

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtHill
Citation2008 WY 124,194 P.3d 299
Decision Date10 October 2008
Docket NumberNo. S-08-0017.
PartiesTrent Breon DEAN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
194 P.3d 299
2008 WY 124
Trent Breon DEAN, Appellant (Defendant),
v.
The STATE of Wyoming, Appellee (Plaintiff).
No. S-08-0017.
Supreme Court of Wyoming.
October 10, 2008.

Representing Appellant: Diane M. Lozano, Wyoming State Public Defender; Tina N. Kerin, Appellate Counsel; and Kirk A. Morgan, Senior 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; and Jenny L. Craig, Assistant Attorney General. Argument by Ms. Craig.

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

HILL, Justice.


[¶ 1] Appellant, Trent Breon Dean (Mr. Dean), was convicted of committing a third or subsequent battery against a household member, in violation of Wyo. Stat. Ann. § 6-2-501(b) and (f)(ii) (LexisNexis 2007).1 This battery was committed upon his wife and it was a third or subsequent offense of such a

194 P.3d 300

crime by Mr. Dean (although the prior offenses included victims other than his wife, Mrs. Dean was subjected to at least 5 documented prior domestic violence incidents). By Judgment and Sentence entered on November 9, 2007, and amended on December 4, 2007, Dean was sentenced to serve a term of imprisonment of 36 to 50 months.

[¶ 2] Dean contends that the district court erred in permitting an expert witness to vouch for the credibility and truthfulness (or lack thereof) of witnesses who have been victims of domestic violence (and, thus, also Mrs. Dean), as well as in permitting that same expert witness to provide improper character evidence concerning Mr. Dean. We will affirm.

ISSUES

[¶ 3] Dean raises these issues:

194 P.3d 301

1. Did the trial court err in allowing the State's expert witness, Carla Thurin, to testify to the credibility and truthfulness of witnesses who have been victims of domestic violence?

2. Did the trial court err in allowing the State's expert witness, Carla Thurin, to testify to the "cycle of violence" associated with domestic violence as said testimony was used by the State as improper character evidence against [Dean]?

The State rephrases the issues like this:

I. Did the district court abuse its discretion when it allowed the State's expert witness, Carla Thurin, to testify about typical victim behavior in domestic violence cases?

II. Did the district court abuse its discretion when it allowed the State's expert witness, Carla Thurin, to testify about the "cycle of violence" in domestic violence cases?

FACTS AND PROCEEDINGS

[¶ 4] On February 1, 2007, a neighbor of Mrs. Dean called 911 to report a disturbance at the Dean household. The neighbor initially just heard the disturbance (yelling and screaming), but then went to his front door and looked out to see what was going on. He started to walk over to observe the commotion and noted that Mr. Dean had a hold on Mrs. Dean's "hair and she had her hands behind her back like this (indicating) on his hands to prevent her from being pulled." The neighbor started to go over to say something like, "knock it off," but when he saw two men in a car in front of the Dean house, he went back inside and called 911. He was motivated to do so because he did not think "any man or any woman for that matter has the right to physically abuse another human being whether they are married or not." His perception was that Mr. Dean was abusing his wife. He perceived Mr. Dean to be "very angry," and Mrs. Dean appeared to be afraid and was crying.

[¶ 5] The police arrived at the Dean household after being summoned by the neighbor's call and they investigated the incident. Cheyenne Police Officer Andy Gutierrez was the principal investigator. Beginning in 2003, Officer Gutierrez's area of investigative expertise was domestic violence calls (Community Advocacy Response Initiative — CARI). He had special training for that assignment and did 12 to 13 such calls a week. Officer Gutierrez was assisted by a volunteer "advocate." Mrs. Dean reported having her hair pulled and that she had a knot on the back of her head, probably from being thrown up against the wall.2 Mrs. Dean also reported that Mr. Dean threw a cordless telephone at her. She had picked up the phone to call for help and Mr. Dean took it from her and threw it at her as she walked away from him. Testimony from Officer Gutierrez, as well as photographic evidence, documented that the phone had imprinted a telltale red mark (in the shape of a phone) on her left side. A second Cheyenne Police Officer, Dave Padilla, was sent out to the Dean household the day of this battery incident because Officer Gutierrez forgot to take pictures of the bruising left on Mrs. Dean's back by the cordless phone. His testimony also tended to corroborate Mrs. Dean's initial report to the police.

[¶ 6] We will not set out the details of the circumstances that led up to this altercation, other than to note that Mr. Dean had sent his wife flowers and a box of chocolates with a card that said, "I love you." Mrs. Dean was not at work because she had stayed home sick, so Mr. Dean had to have the candy and flowers redirected to her home. At this particular time, Mr. Dean was living with his sister and Mr. and Mrs. Dean had mutually agreed to live apart for a while because they were having marital problems.

[¶ 7] Officer Gutierrez testified that Mrs. Dean reported that shortly after the delivery (between 10:00 a.m. and noon), Mr. Dean arrived and an argument ensued almost immediately. He shoved Mrs. Dean into a chair. When she got up, he slapped her in

194 P.3d 302

the head. The argument moved into the kitchen where she was pushed into the kitchen stove. She grabbed a knife, but he took it away from her. She then grabbed the phone to call for help and he took the phone from her and then threw it at her a few minutes later. At this point she ran outside the house and was yelling for help, which is about the time the neighbor mentioned above came onto the scene. After Mr. Dean left the scene, the neighbor went over to Mrs. Dean's house and he was still there comforting her when the police arrived. Officer Gutierrez had Mrs. Dean prepare a written statement and she signed it and it was witnessed by the victim advocate who accompanied Officer Gutierrez.

[¶ 8] Officer Gutierrez looked at the booking log and testified that it indicated that Mr. Dean had no injuries when he came to the jail. This incident occurred on Thursday, February 1, 2007, and on the following Monday, Mrs. Dean called Officer Gutierrez and recanted her story, saying that she started the fight. The officer further testified that such recantations occur in "darn near 90 percent" of such cases. Defense counsel followed up on that line of questioning on cross-examination and Officer Gutierrez indicated that in his experience such recantations were never true. With respect to such recantations, Officer Gutierrez explained that: "The stories are very inconsistent with the initial story that is provided. Most of the time they just don't want to lose the relationship. They know if they recant the story they won't be in any trouble." Upon being asked, Officer Gutierrez reported that Mrs. Dean had visited her husband in the jail between February 1, 2007, and the day of her recantation.

[¶ 9] At trial, Mrs. Dean testified and shifted responsibility for the incident from Mr. Dean to herself, saying that she had goaded him into an argument (because he was drunk) and that she was physically abusive to him, but he was not physically abusive to her. She related that she initially told the police what she did because she wanted to get her husband into trouble and because she was afraid she might be arrested if she told the truth because she had been the aggressor.

[¶ 10] No issue is raised with respect to the sufficiency of the evidence to sustain Mr. Dean's conviction, but we note here that the jury was presented: (1) with the testimony of Mrs. Dean's neighbor, (2) Officer Gutierrez's description of the scene, (4) the photographs which were taken at the scene, and (5) Officer Padilla's corroborative testimony. All of that evidence was pertinent to the finding of guilt the jury made in this case. Mrs. Dean's recantation of her written statement served to exonerate Mr. Dean. Per the Court's instructions to the jury, the core of Officer Gutierrez's testimony, i.e., what Mrs. Dean told him the day of the incident, could only be considered by the jury in judging her credibility. That was also true of Mrs. Dean's written statement which went like this:

On February 1st around 12 noon Trent [Mr. Dean] came to my house drunk and rang the doorbell. I opened it and he started yelling at me. He hit me in my head and threw several objects at me. I picked up a knife to stab him but he took the knife away. I kept screaming and begging for him to leave. Our 3 yr. old daughter was screaming and asking for him to stop and leave. He grabbed the phone when I tried to get it and he broke it. I tried to run to the neighbors to call the police. He ran after me and grabbed me by the hair and pulled me back into the house. He threw me into the chair and the wall. His cousins ran into the house & grabbed him & left.

[¶ 11] The jury was instructed as follows with regard to Officer Gutierrez's testimony and Mrs. Dean's written statement:

Prior inconsistent statements made by Tricia Dean can be considered only for the limited purpose of impeachment of her credibility and may not be considered as substantive evidence of the crime.

You must not consider this evidence for any purpose except the limited purpose for which it was admitted.

[¶ 12] This instruction became the law of the case here, but we question whether it is a correct statement of the law that should have

194 P.3d 303

been applied, i.e., Officer Gutierrez's testimony and Mrs. Dean's prior sworn statement could have been considered as substantive...

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7 practice notes
  • Thompson v. State, S-17-0079
    • United States
    • United States State Supreme Court of Wyoming
    • January 17, 2018
    ...of battered or abused persons can be relevant in helping the jury understand the victim's behavior. See generally , Dean v. State, 2008 WY 124, 194 P.3d 299 (Wyo. 2008). [¶48] The State called the executive director of Crook County Family Violence [408 P.3d 768and Sexual Assault Services as......
  • Gruwell v. State , No. S–10–0168.
    • United States
    • United States State Supreme Court of Wyoming
    • April 18, 2011
    ...testimony. [¶ 12] We review a district court's decision to admit or reject expert testimony for an abuse of discretion. Dean v. State, 2008 WY 124, ¶ 14, 194 P.3d 299, 303 (Wyo.2008). Under an abuse of discretion standard, “the ultimate issue is whether or not the court could reasonably con......
  • Jones v. State , No. S–10–0241.
    • United States
    • United States State Supreme Court of Wyoming
    • August 3, 2011
    ...2010 WY 93, ¶¶ 11–16, 233 P.3d 993, 996–97 (Wyo.2010); Romero v. State, 2010 WY 84, ¶¶ 8, 9, 233 P.3d 951, 954 (Wyo.2010); Dean v. State, 2008 WY 124, ¶ 1, 194 P.3d 299, 299–300 (Wyo.2008); Sarr v. State, 2007 WY 140, ¶¶ 1, 2, 166 P.3d 891, 892–93 (Wyo.2007); Craig v. State, 2007 WY 122, ¶ ......
  • Sweet v. The State Of Wyo., No. S-09-0021.
    • United States
    • United States State Supreme Court of Wyoming
    • June 28, 2010
    ...a long-standing rule that an expert may not vouch for the truthfulness or credibility of a victim, or any other witnesses. Dean v. State, 2008 WY 124, ¶ 15, 194 P.3d 299, 304 (Wyo.2008), citing, Seward v. State, 2003 WY 116, ¶ 19, 76 P.3d 805, 814 (Wyo.2003). Otherwise, evidentiary issues a......
  • Request a trial to view additional results
8 cases
  • Thompson v. State, S-17-0079
    • United States
    • United States State Supreme Court of Wyoming
    • January 17, 2018
    ...of battered or abused persons can be relevant in helping the jury understand the victim's behavior. See generally , Dean v. State, 2008 WY 124, 194 P.3d 299 (Wyo. 2008). [¶48] The State called the executive director of Crook County Family Violence [408 P.3d 768and Sexual Assault Services as......
  • Gruwell v. State , No. S–10–0168.
    • United States
    • United States State Supreme Court of Wyoming
    • April 18, 2011
    ...testimony. [¶ 12] We review a district court's decision to admit or reject expert testimony for an abuse of discretion. Dean v. State, 2008 WY 124, ¶ 14, 194 P.3d 299, 303 (Wyo.2008). Under an abuse of discretion standard, “the ultimate issue is whether or not the court could reasonably con......
  • Jones v. State , No. S–10–0241.
    • United States
    • United States State Supreme Court of Wyoming
    • August 3, 2011
    ...2010 WY 93, ¶¶ 11–16, 233 P.3d 993, 996–97 (Wyo.2010); Romero v. State, 2010 WY 84, ¶¶ 8, 9, 233 P.3d 951, 954 (Wyo.2010); Dean v. State, 2008 WY 124, ¶ 1, 194 P.3d 299, 299–300 (Wyo.2008); Sarr v. State, 2007 WY 140, ¶¶ 1, 2, 166 P.3d 891, 892–93 (Wyo.2007); Craig v. State, 2007 WY 122, ¶ ......
  • Sweet v. The State Of Wyo., No. S-09-0021.
    • United States
    • United States State Supreme Court of Wyoming
    • June 28, 2010
    ...a long-standing rule that an expert may not vouch for the truthfulness or credibility of a victim, or any other witnesses. Dean v. State, 2008 WY 124, ¶ 15, 194 P.3d 299, 304 (Wyo.2008), citing, Seward v. State, 2003 WY 116, ¶ 19, 76 P.3d 805, 814 (Wyo.2003). Otherwise, evidentiary issues a......
  • Request a trial to view additional results

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