Griggs v. State

• Decision Date: 02 February 2016
• Docket Number: No. S–14–0200.,S–14–0200.
• Citation: 367 P.3d 1108
• Parties: Byron Nelson GRIGGS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

367 P.3d 1108

Byron Nelson GRIGGS, Appellant (Defendant),

v.The STATE of Wyoming, Appellee (Plaintiff).

No. S–14–0200.

Supreme Court of Wyoming.

Feb. 2, 2016.

Representing Appellant: Office of the Public Defender: Diane M. Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel.Argument by Ms. Olson.

Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Jenny L. Craig, Senior Assistant Attorney General; Caitlin F. Young, Assistant Attorney General.Argument by Ms. Young.

Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.

KAUTZ, Justice.

[¶ 1] A jury found Byron Nelson Griggs guilty of four counts of first degree sexual abuse involving two minors, and the district court sentenced him to life in prison without the possibility of parole because he had previously been convicted of a similar offense.On appeal, Mr. Griggs asserts the district court erred by rejecting his ineffective assistance of counsel claim, determining the child witnesses were competent to testify, admitting hearsay testimony from various witnesses, denying his request for a continuance, and admitting evidence under W.R.E. 404(b).He also claims his constitutional right to a speedy trial was violated.

[¶ 2] In most respects, the district court's rulings were correct.The district court did err in allowing the admission of some of the hearsay testimony at trial; however, the errors were harmless under the circumstances of this case.Consequently, we affirm.

ISSUES

[¶ 3] Mr. Griggs presents the following issues on appeal, which we rephrase and reorganize for a more efficient resolution:

I.Did the trial court err in finding the children competent to testify?

II.Did the Office of the State Public Defender, including trial counsel, provide ineffective assistance of counsel to Mr. Griggs because no expert witness was called to testify regarding the competency and alleged taint of the child witnesses?

III.Was Mr. Griggs denied his constitutional right to a speedy trial?

IV.Did the trial court abuse its discretion in denying Mr. Griggs' last motion for a continuance?

V.Did the trial court err in admitting hearsay testimony regarding the children's statements?

VI.Did the trial court err in allowing admission of evidence under W.R.E. 404(b)because the evidence was more prejudicial than probative?

The State presents the same issues, although they are phrased in greater detail.

FACTS

[¶ 4] In January 2012, the Department of Family Services(DFS) took RM's three children (sisters CM and SM and brother JM) into custody on allegations of neglect because their home was filthy and the children had chronic head lice.The children were placed with foster parents, who also had other foster children in their care.

[¶ 5] The foster family went camping in the summer of 2012, and one of the other foster children complained that CM was asking him to "share" his "pee-pee" with her.Foster mother, TP, questioned CM about her behavior and CM revealed her mother's friend, "Byron," had shared his "pee pee" with her and SM.In separate private conversations, TP asked SM and JM about their relationship with "Byron."SM told TP that she had been sexually abused by him, and JM stated that he had watched "Byron" sexually abuse his sisters.

[¶ 6] TP reported the conversations to DFS, who investigated the allegations.During the investigation, RM identified "Byron" as Mr. Griggs and stated that she had an extramarital affair with him in 2011.She also revealed that he watched the children while she went to a bar sometime in May or June of 2011.A DFS investigator conducted forensic interviews of CM and JM, and a police detective interviewed SM.The children reported that Mr. Griggs had put his "pee pee" in the girls' "butts" and licked their genitals.At the time of the abuse, SM was four years old, CM was five years old, and JM was seven years old.

[¶ 7]The State charged Mr. Griggs with four counts of first degree sexual abuse of a minor, under Wyo. Stat. Ann. § 6–2–314(a)(i)(LexisNexis 2015),¹ for inflicting cunnilingus and anal intercourse upon each girl.Because Mr. Griggs had previously been convicted of attempted second degree sexual assault of a minor, he faced sentences of life without the possibility of parole under Wyo. Stat. Ann. § 6–2–306(e)(LexisNexis 2015).²

[¶ 8]The case went to trial more than a year after the charges were filed.Several witnesses testified for the State, including CM, JM, RM, TP, a nurse practitioner who specialized in child abuse, and a forensic interviewer.SM was called to testify at trial but was unable to answer any questions about the abuse.An agent from the Department of Criminal Investigation(DCI) testified about the events surrounding Mr. Griggs' prior conviction of attempted second degree sexual assault.

[¶ 9] The jury found Mr. Griggs guilty of all four counts, and the district court sentenced him to life in prison without the possibility of parole.He filed a timely notice of appeal.

DISCUSSION

I.Competence of Child Witnesses

[¶ 10] Prior to trial, Mr. Griggs claimed the children were not competent to testify.He also suggested their memories and testimony had been tainted by improper influences and interview techniques.The district court held two hearings on the competency of the children.The court questioned CM and SM separately at the first hearing and JM at the second hearing.It issued detailed orders applying this Court's precedent regarding competency and declared all three children competent to testify.We will restrict our analysis to the question of the girls' competency because, although Mr. Griggs occasionally refers to JM's mental deficiencies in his brief, he does not present a sufficient argument that JM was not competent to testify.SeeBoucher v. State,2011 WY 2, ¶ 32, 245 P.3d 342, 357–58(Wyo.2011)(refusing to consider "issues that are unaccompanied by cogent argument or citation to pertinent legal authority").

[¶ 11] W.R.E. 601provides that "[e]very person is competent to be a witness except as otherwise provided in these rules."However,

when children are called into the courtroom to testify, we have held that once the child's competency is called into question by either party, it is the duty of the court to make an independent examination of the child to determine competency, and that determination will not be disturbed unless shown to be clearly erroneous.

English v. State,982 P.2d 139, 145(Wyo.1999)(internal citations and emphasis omitted).See alsoMersereau v. State,2012 WY 125, ¶ 5, 286 P.3d 97, 103(Wyo.2012).The trial court's determination is entitled to significant deference because it "is in a far better position to judge the demeanor, truth, and veracity of the witness[.]"Gruwell v. State,2011 WY 67, ¶ 25, 254 P.3d 223, 231(Wyo.2011).In our review,

"[w]e do not presume to place ourselves in the shoes of the trial court in these cases by reading a cold record.The trial court sees the witness' facial expressions, hears inflections in [his] voice and watches [his] mannerisms during examination.These observations are a vital part of the ultimate ruling on competency."

Id.,quotingSeward v. State,2003 WY 116, ¶ 32, 76 P.3d 805, 819(Wyo.2003).

[¶ 12]Rule 601's statement that witnesses are generally competent to testify is "consistent with the modern philosophy that few persons are inherently incapable of testifying in some manner which is potentially useful."Larsen v. State,686 P.2d 583, 585(Wyo.1984), citing3 Louisell and Mueller, Federal Evidence§ 250(1979).In general, a witness is competent to testify if he can " 'understand, receive, remember and narrate impressions and is sensi[tive] to the obligations of the oath taken before testifying.' "Mersereau,¶ 6, 286 P.3d at 104, quotingSimmers v. State,943 P.2d 1189, 1199(Wyo.1997).It is a witness's intelligence, not his age, that determines whether he is competent to testify.Id.,citingBaum v. State,745 P.2d 877, 879(Wyo.1987).It goes without saying that a witness need not be perfect to be competent to testify.See, e.g., Trujillo v. State,880 P.2d 575, 579(Wyo.1994)(although ten-year-old child's answers to certain questions were nonsensical, the district court did not err in finding him competent to testify).

[¶ 13] Wyoming uses a five-part test adopted in Larsen,686 P.2d at 585, to determine a child witness's competence to testify.The district court must determine whether the child has:

"(1) an understanding of the obligation to speak the truth on the witness stand; (2) the mental capacity at the time of the occurrence concerning which he is to testify, to receive an accurate impression of it; (3) a memory sufficient to retain an independent recollection of the occurrence; (4) the capacity to express in words his memory of the occurrence; and (5) the capacity to understand simple questions about it."

Mersereau,¶ 7, 286 P.3d at 104, quotingLarsen,686 P.2d at 585.

[¶ 14] Mr. Griggs claims the district court erred in concluding that CM and SM were competent to testify.SM did not actually testify at trial to any substantive information about Mr. Griggs, and, consequently, the relevance of the district court's determination as to her competency is questionable.Nevertheless, we will review the district court's rulings as to both girls.

[¶ 15] The first element of the Larsen test requires that the witness understand the obligation to speak the truth on the witness stand.The district court's order included the following findings and conclusions regarding CM's understanding of the obligation to tell the truth when testifying:

[CM] was ... able to explain that a lie is made up and not real, and the truth was not made up, was able to give examples of telling the truth and telling a lie, and promised to always tell the truth while she was on the witness stand.Later in the hearing, she also, without prompting, expressed an understanding that telling a story about

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