Jensen v. State

• Decision Date: 04 August 2005
• Docket Number: No. 04-81.,04-81.
• Parties: Zachary Dwight Fiske JENSEN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 1088

116 P.3d 1088

2005 WY 85

Zachary Dwight Fiske JENSEN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 04-81.

Supreme Court of Wyoming.

August 4, 2005.

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

Representing Appellee: Patrick J. Crank, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and James Michael Causey, Assistant Attorney General. Argument by Mr. Causey.

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

HILL, Chief Justice.

[¶ 1] Zachary Jensen (Jensen) appeals two convictions for aggravated assault arising out of an incident in which he threatened to kill his live-in girlfriend and their young son with a knife. Jensen argues for reversal of those convictions on three substantive grounds: That he was denied his Sixth Amendment right to confront a witness against him; that improper victim impact testimony was admitted; and that the prosecutor committed misconduct while cross-examining Jensen by repeatedly asking him if other witnesses were lying. We find no merit in the first two claims of error but, after reviewing the record, we agree that the prosecutor improperly questioned Jensen. However, we conclude that the error was harmless and affirm Jensen's convictions.

ISSUES

[¶ 2] Jensen presents four issues for review:

I. Did the trial court err in limiting defense counsel's cross-examination of alleged victim Kate Spears, and, subsequently, in denying its sua sponte motion for [a] new trial?

II. Was improper victim impact testimony admitted into evidence?

III. Did prosecutorial misconduct occur when the prosecutor questioned appellant about whether other witnesses were "lying?"

IV. Does cumulative error warrant reversal of appellant's convictions?

The State's statement of the issues substantially parallels those set forth by Jensen.

FACTS

[¶ 3] Jensen lived in an apartment in Gillette, Wyoming, with his long-term girlfriend, Kate Spears (Spears) and their young son, S.O. On the night of July 20, 2003, Jensen and Spears got into an argument over Jensen's intoxication while he was supposed to be watching the child. The dispute quickly degenerated into a physical confrontation when Jensen refused to let Spears exit the apartment bathroom. Trying to get past Jensen, Spears attempted to knee him in the groin. Shrugging off the blow, Jensen picked Spears up and threw her against the sink. He then grabbed Spears by her neck and threw her onto the floor. Spears suffered fingernail gouges on her neck and lacerations on her back where she had hit the sink.

[¶ 4] Jensen left the bathroom and proceeded to the kitchen where he obtained a knife. Positioning himself between Spears and the apartment door, Jensen threatened to kill Spears, his son, and himself. At one point, Jensen placed the tip of the knife against his chest and attempted to stab himself. Spears was able to convince Jensen to sit down and talk. Eventually he set the knife down on a table. Spears grabbed the knife and threw it out onto the apartment balcony. Jensen responded that there were more knives where that one came from and proceeded to head to the kitchen. Spears ran out to the balcony, hid the knife behind some furniture, and began screaming for help. After a few minutes, Spears noticed that she could no longer observe Jensen in the kitchen or the apartment. Grabbing her son, Spears ran out of the apartment, got into her vehicle, and drove to a nearby convenience store where she called 911.

[¶ 5] Meanwhile, a neighbor who heard Spears' cries for help called 911. The police quickly responded, and an officer was diverted to the convenience store when Spears' call came in. The officer arrived to find Spears and her son in a distraught state. In the course of Spears' explanation of the events, unprompted, her son exclaimed that Jensen had tried to hurt him and also tried to cut himself. Jensen was eventually located in a neighboring apartment and arrested.

[¶ 6] Jensen was charged with two counts of aggravated assault and battery for threatening to use a drawn deadly weapon on Spears and his son in violation of Wyo. Stat. Ann. § 6-2-502(a)(iii) and (b)¹ (LexisNexis 2005). At trial, the State's witnesses testified as previously set forth. Jensen testified on his own behalf. He claimed that he had pushed Spears, not thrown her, onto the sink in self-defense, and he denied throwing her to the floor. Jensen also admitted that he got a knife from the kitchen. However, he insisted that he did not threaten Spears or his son; he only threatened suicide. The jury returned a verdict of guilty on both counts. Additional facts will be set forth in our discussion of the specific allegations of error presented by Jensen.

DISCUSSION

Whether Jensen was Denied His Sixth Amendment Right to Confront a Witness Against Him

[¶ 7] In June of 2001, Jensen and Spears consented to a guardianship of S.O. with Sheri Gengozian, Jensen's mother. Gengozian was the primary caretaker of S.O. until January of 2003, when she returned physical custody to Spears.² After Jensen was charged in this case, Spears and Gengozian continued to maintain a relationship concerning S.O. On August 29, 2003, Spears and Gengozian had a falling out. As a result, Gengozian, with guardianship papers in hand, appeared at Spears' apartment with law enforcement to take custody of S.O. On October 6, 2003, Spears filed a petition with the district court for custody of S.O. and to terminate Gengozian's guardianship. During this period, Gengozian allowed Spears to have custody of S.O. at various times, finally returning him to Spears on a permanent basis sometime around November 3, 2003. By court order, Spears was awarded temporary custody on November 6.

[¶ 8] Spears' petition to terminate Gengozian's guardianship was pending when the charges against Jensen proceeded to trial. On the first day of trial, Jensen sought to question Spears in cross-examination regarding her petition. The State objected on relevancy grounds. The district court concurred and prohibited Jensen's line of questioning.

[¶ 9] On the day before Jensen was to be sentenced, this Court issued a decision in Hannon v. State, 2004 WY 8, 84 P.3d 320 (Wyo.2004) wherein a conviction was reversed because the trial court denied the defendant his Sixth Amendment right to confront a witness against him by restricting his ability to cross-examine the State's material witness regarding a possible motive to lie in his testimony. On its own motion, the district court scheduled a hearing to determine if a new trial was appropriate given the Hannon decision and the court's trial ruling prohibiting Jensen from inquiring into the petition to terminate Gengozian's guardianship. At the hearing, the State presented argument and the testimony of Spears while Jensen did likewise along with testimony from Gengozian. The district court concluded that Jensen was not entitled to a new trial because the limitations imposed on Jensen's cross-examination of Spears were proper on relevancy grounds.

[¶ 10] On appeal, Jensen maintains that the court's limitation was improper under our decision in Hannon. He contends that the evidence relating to Spears' petition was relevant to her motives. He argues that the only direct evidence of the alleged assaults was Spears' testimony and, therefore, the jury should have been allowed to judge Spears' possible motives in light of the fact that their child was the subject of a custody dispute with Jensen's mother.

[¶ 11] Hannon was convicted of two counts each of second- and third-degree sexual assault and one count of attempted third-degree sexual assault. Hannon, ¶¶4 and 10. On appeal, he challenged an order of the trial court that prohibited him from cross-examining the minor victim about the fact that he did not report the alleged sexual assaults by Hannon until three months after the alleged incident, when the victim was brought in for questioning about his own alleged sexual improprieties with another boy. Id. at ¶ 14. Hannon argued that he had a right grounded in the Sixth Amendment to the United States Constitution to cross-examine the victim concerning the allegations against him in order to show that he had a motivation to lie about the alleged assault by Hannon in order to shift blame from his own conduct. Id. We agreed with Hannon. We cited Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974) for the proposition that:

Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested. Subject always to the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation, the cross-examiner is not only permitted to delve into the witness' story to test the witness' perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, i.e., discredit, the witness. * * * A more particular attack on the witness' credibility is [a]ffected by means of cross-examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand. The partiality of a witness is subject to exploration at trial, and is "always relevant as discrediting the witness and affecting the weight of his testimony." 3A J. Wigmore, Evidence § 940, p. 775 (Chadbourn rev.1970). We have recognized that the exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination. Greene v. McElroy, 360 U.S. 474, 496, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959).

Hannon, ¶ 16 (quoting Davis, 415 U.S. at 317-18, 94 S.Ct. 1105). A consequence of Davis is that "a criminal defendant states a violation of the...