Gale v. State

Decision Date02 May 1990
Docket NumberNo. 87-192,87-192
PartiesRichard Kane GALE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
CourtWyoming Supreme Court

Richard A. Hostetler, Denver, Colo., and Willis C. Geer, Gillette, for appellant.

Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., Karen A. Bryne, David K. Gruver, Gerald P. Luckhaupt, Asst. Attys. Gen., for appellee.


GOLDEN, Justice.

The primary questions presented in this case concern the rights of an accused in a sexual abuse case to compel a victim's psychological examination; to compel the state's furnishing summaries of expected expert witness testimony; to discover favorable evidence; and to obtain dismissal of the charges because of the state's failure to preserve evidence.

Appellant Richard Kane Gale, D.D.S. (Gale), appeals his jury trial convictions on three counts of taking immodest, immoral, or indecent liberties with a child in violation of W.S. 14-3-105 (June 1983 Repl.). Gale presents numerous issues premising error upon his inability to obtain various types of evidence for trial preparation; his issues include:

A. Whether the trial court erred in denying Dr. Gale's motion for psychiatric evaluation.

B. Whether the trial court erred when it denied Dr. Gale's motion for discovery of summaries of the substance of the expected trial testimony of the prosecution's expert witness.

C. Whether (sic) trial court erred in failing to order disclosure of the psychological and/or psychiatric records of the R children.

D. Whether the trial court erred in failing to disclose the social services files.

E. Whether the trial court erred in denying the motion (sic) disclosure of the tape recordings.

F. Whether the trial court erred in denying the motion for disclosure of school records.

G. Whether the trial court erred in denying the motion to dismiss or in the alternative suppress testimony of the R family.

H. Whether the trial court erred in denying the Motion to Dismiss or in the Alternative Suppress Testimony for failure to preserve evidence.

We affirm.


Gale was accused of entering the R family home on the evening of August 30, 1986 and sexually molesting three of the female R children in their rooms. A criminal complaint and warrant were issued on December 11, 1986. Gale was arrested the same day and charged with three counts of taking indecent liberties with a minor in violation of W.S. 14-3-105 (June 1983 Repl.). An information was filed on February 6, 1987.

Underlying this case is the bizarre atmosphere of sexual abuse and neglect that prevailed in the family home of GR and LR in 1986, and possibly before that time. In 1986, the R family included the parents GR and LR, five girls, ages three, three, seven, ten, seventeen, and a boy age eleven. On October 31, 1986, the Wyoming Division of Public Assistance and Social Services (D-PASS) received information that GR was sexually abusing the seven year-old child. The initial information led to a November 17, 1986, D-PASS interview of the seven year-old in which she indicated that GR had sexually abused her; in that interview, she also stated that her dentist had come into her bedroom one night and performed oral sex upon her. D-PASS used this information as the basis for two ongoing investigations into the conduct of GR and Gale, the family dentist, during the ensuing weeks. D-PASS conducted additional interviews and discussions with the ten year-old child, the seventeen year-old child, and LR, which resulted in a criminal charge being filed against GR on October 28, 1986, alleging that he sexually assaulted the seven year-old child. GR received a preliminary hearing but was not bound over for trial.

At the same time the state was proceeding against GR on criminal charges, it also had a petition pending in juvenile court concerning the well-being of the R children. This record does not contain transcripts or recordings of any hearings which took place as a result of that juvenile petition. It does appear, however, that the R children were taken from GR and LR sometime in late 1986 and placed in foster homes. Gale also alleges that GR was under a court order not to have unsupervised contact with his children while the juvenile petition was pending and that, based on conversations which Gale's original defense counsel, a Terry Preuit, had with former Campbell County Prosecuting Attorney, Robert Rose, III, GR may have violated that order and been tried for contempt. These allegations are speculative, at least in terms of the information available in the record presented to this court.

The Campbell County Attorney decided not to reprosecute GR or bring charges against LR; instead, on January 16, 1987, LR entered into a "Juvenile Court Admission Agreement" in which the state agreed to grant her immunity from prosecution for child abuse or neglect in connection with the alleged acts committed by her husband. The stated purpose of this agreement was to allow LR "the opportunity to obtain help and to keep her family together if possible and further to facilitate the protection of the R children through the processes of the juvenile court." Under the agreement, LR admitted she had suspicions and actual knowledge that some of her children complained about sexual misconduct by GR and Gale. LR also agreed to interview with the state and truthfully relate her knowledge of contact between Gale and her children. She also agreed to testify truthfully about that subject if requested to do so by the state. The agreement obligated the state to grant immunity to both LR and GR concerning the incidents that allegedly occurred The parties to this appeal assert that a similar written agreement was reached between the state and GR. This agreement is said to have contained an admission by GR that he had repeated sexual contact with the seventeen year-old child, that he punished his son excessively, and that he endangered his family through alcoholism. The agreement, like LR's, is said to have granted GR immunity from prosecution on the charge that had been initially filed against him and further immunity from prosecution for any previous sexual misconduct or abuse he committed towards his children in the family home. In return, GR apparently agreed to interview and/or testify truthfully concerning his knowledge of Gale's alleged contact with the R children. This is supported in the record by testimony from the Campbell County prosecutor who made the decision not to refile the charge initially filed against GR in lieu of an agreement from GR that contained an admission of his past sexual misbehavior with his children and his promise to help the state prosecute Gale. The actual agreement between GR and the state, however, does not appear in the record on appeal. After these agreements were completed, the state pursued a case against Gale.

                in the R home and further stated that "[t]he state further warrants that it presently has no plans for alternative prosecution of [GR] in any other forum or for any other offense."   The agreement also provided that "[t]his promise of immunity applies whether evidence of the crime or crimes comes from [LR] or any other source."

Gale had an extensive three-day preliminary hearing on January 30-31, 1987, and February 2, 1987. At this hearing, the state presented testimony from the three R daughters who implicated Gale. Gale's counsel was given an extensive opportunity to cross-examine them. Over 100 pages of the 600-page transcript from that hearing contain Gale's counsel's cross-examination of the eldest R daughter. The state also called LR and an expert witness, Dr. William Heinecke of Northern Wyoming Mental Health Center. Gale's counsel examined the male R child and a number of witnesses who gave testimony about the R children and the R family. Gale's counsel also examined the officer who compiled the police reports on GR and Gale. After listening to all of this testimony, the county court made a finding of probable cause and bound Gale over for trial.

On April 6, 1987, Gale filed numerous motions for discovery. Among these motions were: (1) a motion to compel three of the female children to undergo psychiatric evaluations to determine whether their mental condition could affect their credibility as prosecution witnesses; (2) an extensive general discovery motion which sought, among other things, summaries of the proposed testimony of prosecution expert witnesses; (3) a motion to compel disclosure of psychiatric records on three of the female children; (4) a motion for the disclosure of all Campbell County D-PASS records pertaining to the R family; (5) a motion for disclosure of any public or private school records on four of the R children; (6) and a motion for disclosure of any tape recording or transcript of any hearing regarding GR and LR's agreement with the state not to have contact with their children. Gale supported these motions with the affidavit of his own private investigator, which concluded that some of these records needed to be screened to gain an understanding of the dynamics of the R family and how those dynamics might play into the charges against Gale. He also attached police records, a written statement of the eldest R daughter, a written statement of one of the R children's friends, LR's juvenile court agreement, and other juvenile court documents. He filed requisite subpoenas duces tecum in support of these motions on April 22, 1987. Gale also filed motions to dismiss or suppress victim testimony because the state failed to preserve the initial interviews of the victims on audio or video tape; and to dismiss or suppress the testimony of the R family. D-PASS filed an objection and motion to quash in response to the subpoena duces tecum seeking D-PASS records on April 22, 1987. The state filed opposition to The trial court filed...

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