Drury v. State

• Decision Date: 23 October 2008
• Docket Number: No. S-07-0250.,S-07-0250.
• Citation: 194 P.3d 1017,2008 WY 130
• Parties: Phyllis A. DRURY, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

194 P.3d 1017

2008 WY 130

Phyllis A. DRURY, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. S-07-0250.

Supreme Court of Wyoming.

October 23, 2008.

Representing Appellant: Diane Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel; John D. King, Faculty Director, Grant Curry and Jon Aimone, Student Interns, of Defender Aid Program. Argument by Messrs. Aimone and Curry.

Representing Appellee: Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Graham M. Smith, Assistant Attorney General. Argument by Mr. Smith.

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

VOIGT, Chief Justice.

[¶ 1] Appellant Phyllis A. Drury requests that we overturn her conviction because she claims that a witness inappropriately vouched for the credibility of other witnesses and impermissibly commented on Appellant's credibility during her trial. Appellant also claims that the district court committed reversible error when it failed to suppress statements regarding taped interviews with law enforcement because the tapes of those interviews were destroyed and were not available to the defense at trial. We affirm.

ISSUES

[¶ 2] 1. Did the district court abuse its discretion when it allowed a law enforcement officer to testify regarding his ability to gauge credibility, behavior he considered indicative of credibility, and his impressions of the credibility of Appellant and other suspects, and when the court denied a subsequent motion for mistrial based on that same testimony?

2. Did the district court abuse its discretion in failing to exclude the testimony of a law enforcement officer regarding his interviews with Appellant and other witnesses even though tapes of those interviews were not provided to Appellant in discovery?

3. Did the district court err when it determined that Appellant's due process rights were not violated although the investigating officer destroyed tapes of interviews with Appellant and various witnesses?

FACTS

[¶ 3] Appellant worked for a company dealing with collections in medical billing from January to September of 2005. In approximately April of 2005, deposits at the company began to go missing. The problem was not discovered until June when the company reconciled its books. The company, with the help of an accounting firm, spent several months investigating in order to confirm that the problem was internal and identify which specific deposits were missing. The company then used payroll and vacation records to eliminate from suspicion any employees who were not in the office on at least one day when a deposit went missing. Three employees were identified who had been present in the office on every day a deposit disappeared.

[¶ 4] Managers called the three employees who were still under suspicion into individual interviews with law enforcement present.¹ The interviews were recorded on audio tape but the recording was unintelligible because of poor sound quality. All of the employees denied involvement in the theft. At the end of the three interviews, the managers asked Appellant to clean off her desk and law enforcement escorted her from the premises.

[¶ 5] Officer Phil Brown investigated the thefts. Officer Brown interviewed nine employees in connection with his investigation. Officer Brown recorded those interviews and used the recordings to prepare his reports but he reused the tapes for other purposes and did not preserve the recordings. Appellant was the last employee Officer Brown interviewed. Officer Brown taped Appellant's interview as well, but both the audio and video tapes ran out approximately halfway through the interview. Officer Brown testified that Appellant confessed and signed a statement after the tape ran out. Appellant's written statement was admitted at trial.

[¶ 6] The State charged Appellant with felony larceny under Wyo. Stat. Ann. § 6-3-402(a)(c)(i) (LexisNexis 2003). The jury found Appellant guilty but the district court deferred its judgment and sentencing until both sides could submit materials related to a mistrial motion the defense brought during Officer Brown's testimony. The district court denied the motion on June 26, 2007, and entered a Judgment and Sentence on August 21, 2007.

DISCUSSION

Did the district court abuse its discretion when it allowed a law enforcement officer to testify regarding his ability to gauge credibility, behavior he considered indicative of credibility, and his impressions of the credibility of Appellant and other suspects, and when the court denied a subsequent motion for mistrial based on that same testimony?

[¶ 7] Appellant contends that the district court committed error per se when it permitted testimony regarding Appellant's guilt. However, we recently abandoned the "error per se" standard for such testimony. Large v. State, 2008 WY 22, ¶ 30, 177 P.3d 807, 816 (Wyo.2008). Since Appellant objected to the testimony at trial, we will review the admission of this testimony for abuse of discretion and determine whether the error, if any, was harmless. Id., 2008 WY 22, ¶ 30, 177 P.3d at 816; W.R.A.P. 9.04.

[¶ 8] We review the denial of a motion for mistrial for an abuse of discretion. Martin v. State, 2007 WY 2, ¶ 11, 149 P.3d 707, 710 (Wyo.2007). An abuse of discretion occurs where the district court could not reasonably have concluded as it did. Thomas v. State, 2006 WY 34, ¶ 10, 131 P.3d 348, 352 (Wyo.2006). "Granting a mistrial is an extreme and drastic remedy that should be resorted to only in the face of an error so prejudicial that justice could not be served by proceeding with trial." Warner v. State, 897 P.2d 472, 474 (Wyo.1995). Appellant has the burden of showing that she was prejudiced by the district court's denial of the motion for mistrial. Yellowbear v. State, 2008 WY 4, ¶ 67, 174 P.3d 1270, 1295 (Wyo. 2008).

[¶ 9] The testimony at issue was certainly inappropriate. Officer Brown testified that he had extensive training in interviewing techniques, including training in how to determine if a subject is lying during an interview. The officer also testified as to specific things for which he had been trained to look in making that determination.² He then made several comments about Appellant's credibility, about his opinion of her guilt, and about the credibility of the other suspects he interviewed during the investigation. At various points in his testimony, the officer made the following statements:

But they sent me to a specialized school which basically supplied me with an outline [for interviews] that I could work with, an outline that psychologists and hundreds of cops have decided works pretty much all of the time.

. . . .

They didn't really go into the exact questions, but they did have an outline of a certain amount of questions that you should follow in the same — same order that would elicit responses both physically and verbally that would lead the detective to think that the person they're talking to is either being deceptive or is trying to be helpful with the cops. Like a witness or, a, um, somebody that's not guilty could act entirely different than people that have some involvement in the crime.

. . . .

Just in the initial phase what I'm looking for is changes in body behavior that would indicate deception. I'm not really listening to the answers of the questions. I'm watching her body for movement, twitches, anything that is abnormal. You know, I sit there for about half an hour, and I watch what's normal. Then when I start to ask her just slightly stressful questions, and I watch what happens to her body. If I hit a chord during one of my questions, I know that something is up there; and I know that I need to ask more questions in that area. And it also gives me confidence that the person I'm talking to is lying to me.

. . . .

I'm looking for twitching legs, covering the mouth, inappropriate coughing, all of these things that I was taught that would indicate that somebody is trying to hide somebody [sic]. Witnesses — all of the other women in this office didn't give me any of that.

. . . .

And during that short phone interview [Appellant] told me some things that were not normal for an innocent person.

. . . .

Three seconds later she sat down — well, she was sitting down, but she said okay. So I knew that most normal people that have just been accused of —

. . . .

The first part of the interview I'm watching body language. What they're saying is not necessarily as important as what their body's saying in regard to the deception or truth.

. . . .

Okay. In my opinion the nine women that I talked to did not exhibit any —

(Emphasis added).

[¶ 10] Officer Brown testified as a lay witness. However, it is impermissible for either a lay witness or an expert to vouch for the credibility of another witness, or to comment on the guilt of the accused. Lopez v. State, 2004 WY 103, ¶ 22, 98 P.3d 143, 150 (Wyo.2004). The question becomes whether the error³ requires reversal or whether the error was harmless under W.R.A.P. 9.04.

We must ascertain whether the error affects any substantial rights of the accused, providing grounds for reversal, or whether it is harmless. The harmless error standard is set out in W.R.A.P. 9.04: "Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded by the reviewing court." See also W.R.Cr.P. 52(a). An error is harmful if there is a reasonable possibility that the verdict might have been more favorable to the defendant had the error never occurred. To demonstrate harmful error, the defendant must show prejudice under "circumstances which manifest inherent unfairness and injustice, or conduct which offends the public sense of fair play." Johnson v. State, 790 P.2d 231, 232 (Wyo.1990). Under our harmless error analysis, we must judge whether the jury's verdict might have been different...