Gleason v. State

• Decision Date: 24 October 2002
• Docket Number: No. 00-299.,00-299.
• Citation: 57 P.3d 332,2002 WY 161
• Parties: Michael Alexander GLEASON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

57 P.3d 332

2002 WY 161

Michael Alexander GLEASON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 00-299.

Supreme Court of Wyoming.

October 24, 2002.

Kenneth M. Koski, Public Defender; Donna D. Domonkos, Appellate Counsel; and Tina N. Kerin, Senior Assistant Appellate Counsel, Representing Appellant.

Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Theodore E. Lauer, Director, Prosecution Assistance Program; and Richard Manning, Jr., Intern, Representing Appellee.

Before HILL, C.J., and GOLDEN, LEHMAN,¹ KITE, and VOIGT, JJ.

VOIGT, Justice.

[¶ 1] On November 4, 1999, Michael Alexander Gleason (Gleason) was charged with two counts of taking indecent liberties with a minor. A jury found him guilty of both counts and he was sentenced to concurrent terms of imprisonment for five to ten years. In this appeal, Gleason alleges that the trial court erred in admitting uncharged misconduct evidence, that prosecutorial misconduct occurred, and that he received ineffective assistance of counsel.

[¶ 2] We affirm.

ISSUES

1. Was it error to admit evidence of various uncharged acts of sexual misconduct by Gleason with minors?

2. Did the fact or manner of the prosecutor's argument in regard to the uncharged misconduct evidence constitute prosecutorial misconduct?

3. Did Gleason's trial counsel render ineffective assistance by informing the trial judge that Gleason did not wish to be present in chambers during the peremptory challenge portion of voir dire?

FACTS

[¶ 3] On June 16, 1996, Gleason married Monica French (Monica). The two already had a daughter, A.G., who was born on November 29, 1994. Gleason had two older children from a previous marriage—a son whose name and age do not appear in the record and a daughter, whose date of birth does not appear in the record. Monica had three older children from a prior marriage—twin daughters M.F. and A.F., born October 28, 1988, and a son P.F., born November 9, 1990. M.F. was the victim of the crimes for which Gleason was convicted. Another minor female, M.W., who was born on October 1, 1983, lived with the Gleason family for a period of time in 1997-1998. [¶ 4] The incident upon which the two criminal charges were based occurred sometime in May 1999, while the family was living with Gleason's parents in an apartment in Sundance. Because of the crowded quarters, the children slept on a foldout couch in the living room. M.F. testified that one night she was awakened by Gleason and Monica returning to the apartment. She fell back asleep, but was later awakened by Gleason, who was touching her vaginal area through her shorts. M.F. testified that she grabbed Gleason's hand and sat up, after which Gleason touched her again, this time under her clothing. M.F. got up and went into the bathroom. When she returned, Gleason was still there and he once again touched her in a similar manner.

DISCUSSION

UNCHARGED MISCONDUCT EVIDENCE

[¶ 5] Gleason contends that the trial court erred in admitting evidence of certain uncharged misconduct.² W.R.E. 404(b) governs the admissibility of uncharged misconduct evidence, which is a specialized rule within the general rule of W.R.E. 404. The entire rule reads as follows:

(a) Character evidence generally.—Evidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:

(1) Character of Accused.—Evidence of a pertinent trait of his character offered by an accused, or by the prosecution to rebut the same;

(2) Character of Victim.—Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor;

(3) Character of Witness.—Evidence of the character of a witness, as provided in Rules 607, 608, and 609.

(b) Other crimes, wrongs, or acts.—Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

[¶ 6] Gleason had filed a pretrial demand for notice of the State's intent to offer uncharged misconduct evidence, and he had filed a motion in limine directed at a particular prior act. The trial court heard that motion and made some preliminary observations about relevancy, but left the matter undetermined. Subsequently, the State filed a formal response to the demand, in which it listed five witnesses, outlined their expected uncharged misconduct testimony, and identified the purposes for which the testimony was being offered. Those witnesses were M.F., A.F., P.F., M.W., and Stuart Sklut (Sklut), a Deputy Attorney General from the State of Delaware. Gleason countered with his Objections: Proposed 404(b) Evidence, in which he argued that the evidence was not relevant, that the evidence was more prejudicial than probative, and that "Rule 404(b) and Rule 403 are as all-encompassing as the Wyoming skies[.]"

[¶ 7] On May 22, 2000, the trial court entered an Order Allowing 404(b) Evidence. While once again deferring a decision as to the testimony of M.F., A.F., and P.F., the trial court did allow the uncharged misconduct testimony of M.W. and Mr. Sklut, as it had been set forth in the State's notice. Specifically, M.W. would be permitted to testify

that while she lived in Hulett that [Gleason] tried to french kiss her in front of Monica when he came home from the bar with Monica one night; about [Gleason's] verbal and physical abuse to the children; about [Gleason] telling her before her fourteenth birthday that he was going to get her a little [dildo]; about [Gleason] talking about having pornographic videos; about [Gleason] taking the doorknob off their room so they could not shut the door; about [A.G.] taking off her clothes and playing with herself; and about how [Gleason] favored his biological daughter.

In its notice, the State had offered this evidence as proof of motive, intent (why Gleason was touching M.F.), knowledge (that Gleason knew what he was doing), and course of conduct. The trial court found the evidence to be relevant, as it tended to show motive, knowledge, intent, and lack of accident or mistake, and also found it to be more probative than prejudicial.

[¶ 8] Pursuant to the trial court's Order Allowing 404(b) Evidence, Mr. Sklut, the Deputy Attorney General from Delaware, would be permitted to testify as follows concerning charges that had been brought against Gleason in Delaware in 1992:

[T]he ten criminal sexual assault charges made against [Gleason] for sexually assaulting his [oldest] daughter, [Gleason] admitting in writing that "he [Gleason] had sexual intercourse with [his oldest daughter] on at least five occasions on the dates specified in the Information ...;" that [Gleason] may have no contact with [his oldest daughter], [his oldest daughter's] mother and [his oldest daughter's] brother; and that he witnessed [Gleason] sign the admission.... He may testify about the Attorney General's probation and what it entailed and what [Gleason] did while on probation.

This evidence had been offered by the State to prove motive, intent, knowledge, and identity. The trial court found the evidence relevant to motive, knowledge, intent, and lack of accident or mistake, and found it more probative than prejudicial.

[¶ 9] Prior to voir dire on the first day of trial, the trial court held yet another hearing in chambers concerning the State's proposed uncharged misconduct evidence. The trial court reiterated its decision that the Delaware probation was admissible, but required the State to redact the documents to reflect only the five counts that had been admitted. The admissibility of M.W.'s testimony was not reconsidered. As to M.F., A.F., and P.F., the trial court ruled that they could testify about what Gleason had done to them and to A.G. that was of a sexual nature, finding such to be relevant and more probative than prejudicial, but not about general mistreatment or physical abuse by Gleason. Once again, the specific purpose for which the testimony was allowed was to prove motive, intent, knowledge, and lack of mistake or accident.

[¶ 10] M.F. testified at trial. In addition to the incident upon which the charges were based, M.F. also testified that Gleason pinched her and A.F.'s buttocks, tickled her in the chest area, lifted up her towel after she had showered and commented that she was "getting hairier," stuck his fingers down the front of A.G.'s pants, and came into the bathroom while M.F. was naked. Gleason argues that this testimony was more prejudicial than probative, that it was not relevant, and that it had never actually been subjected to an appropriate pretrial analysis.

[¶ 11] Gleason next complains about the testimony of A.F., M.F.'s twin sister. A.F. was listed as a witness in the State's notice of uncharged misconduct evidence. The notice contained a detailed description of her proposed testimony and identified the purposes for its introduction as proof of motive, intent, plan or course of conduct, knowledge, absence of mistake, and absence of accident. The trial court's pretrial analysis of this evidence generally mirrored its analysis of M.F.'s proposed testimony.

[¶ 12] At trial, in answer to the prosecutor's question whether Gleason had ever touched her in an inappropriate manner, and in response to several follow-up questions, A.F. testified that Gleason would pinch her and M.F.'s buttocks and sometimes whistle, that he would lift up her towel and look at her backside, that he would "swipe across...