McGinn v. State, 95-154
| Decision Date | 21 November 1996 |
| Docket Number | No. 95-154,95-154 |
| Citation | 928 P.2d 1157 |
| Parties | Mark E. McGINN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Sylvia Lee Hackl, State Public Defender; Deborah Cornia, Appellate Counsel and Megan L. Hayes, Cheyenne, for Appellant Wyoming Public Defender Program.
William U. Hill, Wyoming Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Kimberly A. Baker, Assistant Attorney General, Cheyenne, for Appellee.
Before TAYLOR, C.J., and THOMAS, MACY, GOLDEN, * and LEHMAN, JJ.
Mark E. McGinn (McGinn) asserts error in the admission into evidence in a criminal trial for second degree sexual assault 1 of hearsay through the testimony of an expert witness. A psychiatrist called by the State testified McGinn's sister had reported that, from the time she was seven or eight years old (some 26 years previously), McGinn sexually assaulted her and another sister. McGinn claims error in the failure of the trial court to conduct the hearing required by Dean v. State, 865 P.2d 601 (Wyo.1993), prior to receiving evidence of prior bad acts under WYO. R. EVID. 404(b). 2 The only objection posed at trial was a hearsay objection, bolstered by a claim of remoteness, and the State argued then, as it does now, that the admission of the evidence is justified by WYO. R. EVID. 703. We hold that the trial court ruled correctly in admitting the proffered evidence and providing a limiting instruction to the jury with respect to that evidence. McGinn's Judgment and Sentence is affirmed.
In his Brief of the Appellant, McGinn states this issue:
Whether the trial court committed reversible error by admitting evidence of prior bad acts contrary to the standards established by this court in Dean v. State, 865 P.2d 601 (Wyo.1993), resulting in the evisceration of the requirements of WRE 404(b).
The State restates the issue in its Brief of Appellee as:
Whether the trial court properly permitted the State's expert to testify regarding the basis of her opinion?
The record discloses that, within a few months after moving to Sheridan in February 1988, McGinn commenced sexual abuse of his stepdaughter. After a period of grooming, the sexual misconduct escalated to cunnilingus and vaginal intercourse with the victim as well as forced fellatio by the victim. McGinn's reprehensible course of conduct even included his insistence that his wife and stepdaughter engage in sex with one another. When the wife finally objected to this sexual misconduct, McGinn threatened suicide; threatened to kill the wife and her son if his demands were refused; threatened to kill the wife and the children if she reported the abuse; threatened the victim; and stated that, if his conduct were disclosed, he would blame it on post-traumatic stress disorder, and the Veteran's Administration (VA) would see to it that he would not be prosecuted criminally.
The victim's mother, McGinn's wife, attempted suicide in the fall of 1993, which was attributable to the fact that she could no longer endure his abuse. Early in May 1994, McGinn required the then sixteen-year-old victim to photograph him and his wife while they were engaging in sex, and he forced the victim to perform fellatio on him while his wife photographed that act. After this occasion, McGinn's wife called his mother and reported this course of sexual abuse. She was advised by McGinn's mother to report it to the authorities. The wife's fear prevented her from doing that, but McGinn's sister informed the authorities of the sexual abuse.
An investigation followed, and McGinn was arrested. McGinn was charged with two counts of second degree sexual assault in violation of WYO. STAT. § 6-2-303(a)(v) and (vi) (1988). His initial plea was not guilty, but he later entered a plea of not guilty by reason of mental illness or deficiency. 3 McGinn's claim was that he had an extended history of treatment in psychiatric wards of VA hospitals and extensive use of prescription drugs. The district court then followed the procedure articulated in WYO. STAT. § 7-11-303 (1987). 4 After receiving a report that McGinn could proceed, the case went to trial.
As the product of several motions in the proceedings, McGinn stipulated that he was the person in the photographs taken during the sexual acts with the victim, and the only issue at trial was whether McGinn's culpability was excused by reason of mental illness or deficiency. The only witness called by McGinn was a psychiatrist who had treated him as a patient in a VA hospital. The psychiatrist testified as to his diagnosis, which was that McGinn was suffering from dysthymic disorder (chronic depression), post-traumatic stress disorder, and a narcissistic personality disorder with antisocial features. He testified McGinn was not in contact with reality; had "an exaggerated sense of himself as a dangerous person, which amounts to something very near to a delusion"; and did not have "frank, gross and demonstrably delusions or hallucinations, so they--so the impression of his, quote, craziness is a little more subtle * * *." McGinn's psychiatrist's opinion was that none of the individual disorders grossly and demonstrably impaired McGinn's perception of reality but, nevertheless, McGinn lacked the capacity to appreciate the wrongfulness of his conduct.
McGinn's former stepdaughter and his former wife testified as to the charged events of sexual assault. The victim stated that at no time did it appear to her McGinn was fantasizing or delusional, and he would call her and her mother by their names. The victim's mother had also testified McGinn was not fantasizing and used their correct names. To rebut the testimony of McGinn's psychiatrist, the State called as a witness the psychiatrist who had examined McGinn at the Wyoming State Hospital. The State's psychiatrist testified her primary diagnosis was antisocial personality disorder with narcissistic personality traits. She was unable to affirmatively diagnose McGinn as suffering from a post-traumatic stress disorder on the basis of the information available to her. She stated her examinations did not reveal any acute or chronic mental illness or abnormal mental condition that would impair McGinn's perception or understanding of reality. In her opinion, he indeed could understand the wrongfulness of his conduct and the nature and consequences of his acts.
The State's expert also testified that, of the three diagnoses made by McGinn's psychiatrist, only the post-traumatic stress disorder had the potential of qualifying as a mental illness under Wyoming statutes. That would be so only if it were clearly demonstrated he was acutely unaware of what he was doing when he committed the crimes. In her opinion, McGinn understood his conduct was wrong, and he maintained substantial capacity to conform his conduct to the requirements of law and society.
The jury found McGinn guilty of both charges of sexual assault in the second degree. He was sentenced to serve not less than six years and not more than ten years on each of the counts, with the provision that the sentences run concurrently. In addition, McGinn was required to pay restitution for counseling for the victims and a surcharge of $50.00 for each count for the Victims Compensation Fund. McGinn appeals from the Judgment and Sentence.
McGinn's only concern is with the testimony of the psychiatrist called by the State. The psychiatrist testified regarding information given by McGinn's sister during an interview with a social worker. The critical aspect of that testimony is best captured by quoting from the record:
Q. Did you conduct interviews independent of the clinical interview of the defendant?
A. I conducted clinical interviews of the defendant. Oh, and then as I mentioned the social worker and psychologist also interviewed the defendant, and a social worker interviewed the defendant's sister, [McGinn's sister's name].
Q. Why is that done?
A. Well, again we make every effort to do a very comprehensive evaluation and not use the sole source of information from what the defendant or individual is reporting, because very often when an individual comes to be evaluated there has already been entered a not guilty by reason of insanity defense, and they don't report the full thrust, often times, and it helps to get other information from other sources.
Q. Did these interviews produce anything significant for your diagnosis or opinions?
Further, Your Honor, the objection regarding remoteness came up before the court pre-trial and the court has previously ruled that that information would, in fact, be admissible.
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