James v. State, 97-186.

• Decision Date: 29 February 2000
• Docket Number: No. 97-186.,97-186.
• Citation: 998 P.2d 389
• Parties: Carlos JAMES, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

998 P.2d 389

Carlos JAMES, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 97-186.

Supreme Court of Wyoming.

February 29, 2000.

Representing Appellant: Sylvia Lee Hackl, State Public Defender; Donna D. Domonkos, Assistant Appellate Counsel; Peter H. Froelicher, Assistant Public Defender; Stephen I. Singer,¹ Faculty Director, and David D. Larsen, Jr., Student Intern, of the Defender Aid Program. Argument by Mr. Froelicher.

Representing Appellee: William U. Hill, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Kimberly A. Baker-Musick, Assistant Attorney General; Theodore E. Lauer, Director, Angela C. Dougherty, Student Intern, and Martina D. Miller, Student Intern, Prosecution Assistance Program. Argument by Ms. Dougherty.

Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN, and TAYLOR,² JJ.

GOLDEN, Justice.

Appellant Carlos James appeals his conviction on two counts of indecent liberties with a minor and three counts of third degree sexual assault.

We affirm.

ISSUES

James presents these issues for our review:

1. Whether plain error was committed when prior consistent hearsay statements from the states' key witness were admitted, not to rebut a claim of recent fabrication, but merely to bolster the witness' trial testimony?

2. Did the district court commit plain error when it permitted the prosecutor to repeatedly introduce evidence of appellant's alleged gang-related activities?

3. Was the appellant denied effective assistance of counsel?

4. Did the district court commit plain error when it ordered appellant to repay the fees of his public defender?

The State presents the issues as:

1. Was plain error committed when the victim's journal was admitted into evidence and the victim testified as to the content of her journal?

2. Was plain error committed when witnesses referred to appellant's use of "gang signs" and his earlier gang membership in New York?

3. Was appellant denied the effective assistance of counsel in his defense as guaranteed by the Constitution?

4. Did the district court commit plain error when it ordered appellant to reimburse the public defender's office for the services of counsel?

FACTS

In 1996, fifteen-year old L.H. contacted police and complained that James had been harassing her. Further interviews with the minor established that she and James, a twenty-eight year old man, had a sexual relationship during May and June of 1996. L.H. gave the police a journal in which she had recorded the times, dates, and locations when she and James had sexual contact, and the police used the journal to formulate the charges against the defendant. During two interviews, James admitted to sexual contact and then signed a written statement admitting having oral sex and sexual intercourse with her during July and August of 1996. He was arrested, charged with two counts of indecent liberties in violation of Wyo. Stat. Ann. § 14-3-105, and eight counts of sexual assault in the third degree in violation of Wyo. Stat. Ann. § 6-2-304 and trial by jury was set. Before trial, James challenged the admission of his confessions. The district court found the confessions to be admissible and denied James' motion to suppress the statements. James waived his right to a preliminary hearing, and defense counsel did not make an opening statement at the beginning of the trial. During the trial, the prosecution presented four witnesses in its case-in-chief, including L.H. Sometimes reading verbatim, L.H. testified about the contents of her journal without objection and read entries listing the type of sexual encounter she and James engaged in, the dates, and the places. Entries read made racial epithets, speculated on James' gang activities, and described him as a thug. The prosecutor then had another witness, Audie Kistler, testify as to his personal knowledge of L.H.'s and James' relationship, James' admission to him that L.H. had performed fellatio on him, and the reaction of another person witnessing a sexual encounter between L.H. and James. Kistler testified that in exchange for his testimony against James the prosecutor was dismissing seven felony counts of indecent liberties or third degree sexual assault against him and making a sentencing recommendation. Two police officers testified about their investigation and James' statement admitting to three sexual acts with L.H. Direct examination of one investigating officer established that the journal was used to formulate the dates of sexual contact.

James was convicted of both counts of indecent liberties and three counts of sexual assault in the third degree and acquitted on the other five charges. At sentencing, he was sentenced to a term of five to seven years and a fine of $1,000.00 on Count I, the first indecent liberties charge; seven to nine years and a fine of $1,000.00 on the second charge of indecent liberties (Count X); and to a term of three to five years on each of the three counts of sexual assault in the third degree (Counts II, VIII, and IX). The court ordered that the sentences run concurrently on Counts I and II. The court also ordered Counts VIII, IX and X to run concurrently but ordered that Counts I and II run consecutively to Counts VIII, IX, and X. In summary, James was sentenced to twelve to sixteen years and ordered to pay a $2,000.00 fine. The district court also found that the defendant had or would have the ability to reimburse the county and the state for the reasonable value of the services provided by his court-appointed counsel and set that amount at $2,975.00, the amount given in the presentence report.

DISCUSSION

Admission of Journal Testimony

In his first contention, James argues that permitting L.H. to read entries from her journal during direct examination was inadmissible hearsay evidence, improperly admitted as prior consistent statements under W.R.E. 801(d)(1)(B). The State contends that nowhere in the record does it appear that either the State or the district court justified admission of the journal on the ground of W.R.E. 801(d)(1)(B), and no stated reason for offering or admitting the journal appears in the record. The State also contends that the absence of an expressed reason for offering or admitting the journal was caused by defense counsel's objection on the ground that it was improper to read from the journal because it had not been offered into evidence. The journal was then offered into evidence, and the district court twice asked defense counsel if there were any objections to its admission. Defense counsel answered no both times, and the journal was then admitted into evidence without any further explanation by the State and without further foundation. The State contends that defense counsel's actions require this Court to apply the invited error doctrine to James' claim of error in this appeal.

W.R.E. 801(d)(1)(B) provides:

A statement is not hearsay if:

(1) Prior Statement by Witness.—The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is * * * (B) consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive[.]

W.R.E. 801(d)(1)(B) has two express conditions. Lacey v. State 803 P.2d 1364, 1368 (Wyo.1990) (citing Makinen v. State, 737 P.2d 345, 349 (Wyo.1987)). First, the prior statement must be consistent with the declarant's testimony. Second, there must be an express or implied charge of recent fabrication or of improper influence or motive. Id. In this particular case, because the journal entries were offered as original evidence on direct examination, neither of these conditions is satisfied, and the journal evidence was inadmissible hearsay. The court is not required to make a determination of admissibility when there is no objection to receipt of hearsay evidence. Schmunk v. State, 714 P.2d 724, 739 (Wyo.1986).

The doctrine of "invited error" has long been recognized in Wyoming and "embodies the principle that a party will not be heard to complain on appeal of errors which he himself induced or provoked the court or the opposite party to commit." Schott v. State, 864 P.2d 38, 39 (Wyo.1993) (quoting 5 Am.Jur.2d Appeal and Error § 713, at 159 (1962)). Generally, defense counsel must have solicited or otherwise acted affirmatively for the invited error doctrine to apply. Id. In this case, James' defense counsel failed to object to the error at trial, but did not solicit or consent to admitting the hearsay evidence, and we will not apply the invited error doctrine to these facts.

A party's failure to object at trial generally precludes appellate review unless the alleged error rises to the level of plain error. Schmunk, 714 P.2d at 739. James does not contend that any confrontation or due process concerns are implicated, presumably because the hearsay declarant was subject to cross-examination; however, he does contend that under a plain error review, the hearsay testimony prejudiced him. In past decisions, we have applied a plain error review to hearsay testimony. Id. For plain error to be found, the record must clearly establish the error; the error must violate a clear, unequivocal rule of law; and deny the substantial rights of the defendant, materially prejudicing him. Id. Our discussion has established that the first two elements are met, leaving for our review James' contention that he was materially prejudiced because the prosecutor used hearsay testimony to improperly bolster L.H.'s credibility.

James provided a written statement admitting to sexual encounters with L.H. Specifically, he admitted to taking indecent liberties in Bicentennial Park; having sexual intercourse in Bicentennial Park; and having sexual intercourse in her house. He stated all encounters were "sometime in July or August." At trial, L.H. read from a journal...