Metzger v. State, 99-85.

• Decision Date: 14 April 2000
• Docket Number: No. 99-85.,99-85.
• Citation: 4 P.3d 901
• Parties: David METZGER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

4 P.3d 901

David METZGER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 99-85.

Supreme Court of Wyoming.

April 14, 2000.

Rehearing Denied June 12, 2000.

Representing Appellant: Sylvia Lee Hackl, State Public Defender; Donna Domonkos, Appellate Counsel; Diane E. Courselle, Director, Wyoming Defender Aid Program; and Brett N. Huff, Student Intern. Argument presented by Mr. Huff.

Representing Appellee: Gay Woodhouse, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Theodore E. Lauer, Director, Prosecution Assistance Program; and Lori L. Brand, Student Intern. Argument presented by Ms. Brand.

Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN, and HILL, JJ.

HILL, Justice.

Appellant, David Metzger (Metzger), seeks review of his convictions and sentences for two counts of indecent liberties with a child. Metzger asserts that witnesses were erroneously permitted to vouch for the credibility of the victim, that the trial court abused its discretion in denying a motion for mistrial, that the jury was not adequately or clearly instructed, and that the prosecutor engaged in prejudicial misconduct throughout the trial. We conclude that no reversible errors occurred and, hence, we affirm.

ISSUES

Metzger raises these issues:

I. Did the trial court abuse its discretion by allowing one expert witness and one lay witness to testify that they believed the alleged victim when she accused Mr. Metzger of these crimes?

II. Should the trial court have immediately granted a mistrial after a prosecution witness testified to inadmissible and highly prejudicial hearsay evidence that included accusations of uncharged misconduct; was the court's failure to do so an abuse of discretion?

III. Was jury Instruction 3, describing the two counts against Mr. Metzger based on the Information filed in this case, ambiguous because it gave the jurors no way to distinguish between the two counts charged?

IV. Did the prosecutor deprive appellant of his due process right to a fair trial by: (1) Appealing to the passions and prejudices of the jury, (2) appealing to community outrage in voir dire and in his closing argument, (3) asking questions during his direct examination that encouraged prejudicial hearsay testimony, and (4) addressing 404(b) evidence during his closing argument that was outside the permissible scope of its admissibility at trial?

The State submits this summary of the issues:

IA. Did the district court abuse its discretion when it permitted a witness on cross-examination by the State to testify that his Department of Family Services investigative report, stating that there was insufficient credible evidence to substantiate the child victim's allegations, did not mean that he did not believe what the child victim told him?

IB. Was plain error committed when the child victim's father testified that, when she acknowledged to him that she was telling the truth, he believed her?

II. Did the district court abuse its discretion when it denied appellant's request for a mistrial after a child witness testified to what the child victim had told her?

III. Did the trial court properly instruct the jury with respect to both charges of indecent liberties with a minor?

IV. Did the prosecutor commit prosecutorial misconduct in voir dire, in his questioning of witnesses, or in his closing argument?

FACTS

In order to achieve as great a level of clarity as possible, and at the same time preserve the anonymity of child witnesses and their parents, we set out below a list of the principal participants as we will refer to them throughout this opinion:

Metzger: As noted above, he is the appellant in this case.

EM: Is the victim of the crimes of which Metzger stands convicted. EM was Metzger's niece and was eight years of age at the time of the incidents.

Father: Is father to EM and brother to Metzger. At the time the crimes were committed, Metzger was living with his brother and his family because he was unemployed.

Mother: Is mother to EM.

AG: Is another minor female. Metzger pleaded nolo contendere to taking indecent liberties with her. At the time of that occurrence, she was seven years of age. That event occurred closely in time to the crimes at issue in this appeal. AG was a friend of EM and a frequent visitor to EM's home.

In addition to the above persons, we will also make reference to the testimony of several other witnesses, but their identities will be clear in context as we set out the other material facts pertinent to the resolution of the issues raised in this appeal.

This case originated when EM began having difficulties at school. Her Mother sought the assistance of school counselors in order to address EM's deteriorating behavior and school grades. After an initial evaluation at school, EM was referred to mental health experts for more aggressive counseling and treatment. In the first session, EM broke down sobbing and revealed that Metzger had compelled her to touch his "privates" on two separate occasions. Later questioning disclosed that what EM meant by "privates" was Metzger's penis. Metzger lived in the same household as EM and often served as her babysitter if neither parent nor EM's older brother was available to supervise her. EM's revelations came in early December of 1997, over a year and one-half after the crimes occurred. An investigation was completed, and Metzger was charged with two counts of knowingly taking immodest, immoral or indecent liberties with a child in violation Wyo. Stat. § 14-3-105 (Michie 1994 Supp.).¹

DISCUSSION

Testimony Vouching for the Credibility of EM

Metzger contends that two witnesses were allowed to testify to the credibility of EM, and that those errors are of critical importance in this case because the only evidence supporting the convictions was the report made by EM. We accept the premise that the only evidence linking Metzger with these crimes was the testimony of EM.

We embark on our analysis by restating our holding in Stephens v. State, 774 P.2d 60 (Wyo.1989). Our conclusion in that case was that reversal of a conviction for violation of § 14-3-105 was compelled because two expert witnesses who were called to testify by the State were permitted to testify, over defense objections, to their opinions that the victim's father was the perpetrator of the crime. 774 P.2d at 65, 66. No such testimony was permitted in this case. A second part of our holding was that a third expert who was called as a witness by the State was permitted to testify that the victim told him that the perpetrator was his father and, further, in response to the question posed by the prosecutor, "Do you believe [the victim]?" the expert answered, "Yes." 774 P.2d at 66. Our conclusion in Stephens was that "testimony offering an opinion as to the guilt of the defendant, when elicited by a prosecuting attorney, should be perceived as error per se." 774 P.2d at 68. We also rested our decision in Stephens on the conclusion that it is error to permit an expert to vouch for the credibility of a victim who did testify. Id.

In the instant case, it was the defense who called the so-called "expert" witness who gave erroneous testimony. The record does not reflect that he was treated or qualified as an expert witness, but certainly his testimony suggested that he was a person who could be perceived by the jury as an expert. That witness was Mike Baden, a child protection investigator for the Department of Family Services, who testified under direct examination by counsel for Metzger that he had prepared a report concerning the allegations made by EM. At defense counsel's insistence, she was permitted to treat Baden as a hostile witness. In his report, Baden concluded that EM's complaint was "unsubstantiated" and that "... the report of the child victim does not by itself constitute sufficient credible evidence." Defense counsel also elicited from Baden that he considered EM's case terminated because of his report. On cross examination, the prosecuting attorney asked Baden a number of questions about that same report and the meaning of the conclusions quoted above, including his conclusion that sexual contact had occurred. Ultimately, the following exchange between Baden and the prosecutor took place before the jury:

Q. The last thing that Ms. Johnson [defense attorney] went over with you is the report that there was insufficient credible evidence to substantiate the report. And you concluded that, did you not, Mr. Baden?

A. Yes, I did.

Q. Does that mean that you didn't believe [EM] when you talked to her on January 8th?

MS. JOHNSON: I'm going to object to that. He can't testify to the witness's credibility.

THE COURT: I think it goes more to his conclusion and his belief, as it would affect that conclusion.

So I would admonish the jury that witnesses generally can't comment on the truth or believability of other witnesses. But I'll allow it for the limited purpose of reflecting what his conclusion was and how that may fit in.

I'll overrule. You may answer.

Q. (By Mr. Schafer) What was your conclusion, as part of your investigation, in speaking with Pat Carr and with [EM]?

A. I believe that [EM] was a good witness and appeared to be testifying truthfully.

Q. And what you were saying is that you needed more than just her statement to substantiate the report?

A. By our rules and regulations, yes.

Mr. Baden's overall testimony established that the Department of Family Services rules and regulations require that reports such as that affecting EM must be completed within 60 days, that almost 30 days had passed before the Casper Police Department and Baden could get to the investigation (because of conflicts associated with the Christmas/New Year holidays of 1997-98), and that the remaining 30 days allowed him only enough time to assess the risks to the child, but not much more. A significant element in his conclusion that...