Skinner v. State, 00-100.

• Decision Date: 30 October 2001
• Docket Number: No. 00-100.,00-100.
• Citation: Skinner v. State, 2001 WY 102, 33 P.3d 758 (Wyo. 2001)
• Parties: Brad SKINNER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

33 P.3d 758

2001 WY 102

Brad SKINNER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 00-100.

Supreme Court of Wyoming.

October 30, 2001.

Kenneth M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; and Tina Kerin, Assistant Appellate Counsel, for appellant.

Gay Woodhouse, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Kimberly A. Baker, Senior Assistant Attorney General; Theodore E. Lauer, Director of the Prosecution Assistance Program; and Carrie A. Kelly, Mia J. Mikesell, and Shawn Matlock, Student Interns, for appellee.

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

KITE, Justice.

[¶ 1] This is an appeal from Brad Skinner's conviction of aggravated assault and battery in violation of Wyo. Stat. Ann. § 6-2-502(a)(iii) (LexisNexis 2001).¹ Mr. Skinner was sentenced to life in prison pursuant to Wyo. Stat. Ann. § 6-10-201 (LexisNexis 2001),² the habitual criminal law. He seeks review of his conviction based on six alleged errors committed during trial. Finding no reversible error, we affirm.

ISSUES

[¶ 2] Mr. Skinner presents these issues for our review:

I. Was Appellant prejudiced by the inclusion on the jury of a jury member who was deaf and who did not hear and understand all the proceedings in Appellant's Aggravated Assault trial?

II. Did the trial court err in allowing a juror who had inappropriately conducted his own investigation to remain on the jury and was Appellant deprived of his constitutional right to trial by jury by the jury misconduct?

III. Did the trial court err in allowing the improper battered wom[a]n's syndrome testimony of Thad Davidson, and improper character evidence of Appellant?

IV. Was Appellant deprived of his right to be present at a critical stage of the proceedings by not being allowed to attend the hearing concerning the jury misconduct?

V. Did the state impermissibly coerce and threaten the alleged victim, resulting in unreliable testimony, and was the alleged victim given legal advice that forced her to testify untruthfully, in violation of Appellant's due process rights?

VI. Did the trial court err in not permitting evidence of the alleged victim's methamphetamine use and withdrawal?

The State of Wyoming rephrases the issues as:

I. Was [the juror], who wore a hearing aid, unable to hear material portions of the trial, thereby prejudicing Appellant?

II. Did the district court err by permitting [the juror] to remain on the jury after the juror contacted defense counsel in violation of the court's order?

III. Did the district court err in permitting Witness Thad Davidson to testify regarding attributes of battered or assaulted women?

IV. Was Appellant deprived of his right to be present at every critical stage of the proceedings when he was not present at the hearing in chambers regarding [the juror's] attempt to communicate with defense counsel?

V. Was Appellant's right to due process of law infringed by the actions of the state in inducing the victim, ... Appellant's wife, to testify against him?

VI. Did the district court abuse its discretion when it sustained the state's objection to questioning of the victim regarding her use of methamphetamine?

FACTS

[¶ 3] This appeal involves a domestic violence dispute which occurred on March 3, 1999, when Mr. Skinner and his wife (the victim) went to The Lounge, a Casper bar. Earlier that evening, Mr. Skinner had consumed one beer, and the victim had consumed sufficient alcohol to become intoxicated. Mr. Skinner became aware the victim had some money in her possession, and he wanted to know where it came from, thus initiating an argument. He began to yell at his wife and asked her to return a hunting knife he had previously given her. She obliged, but the altercation continued. Eventually, the couple proceeded home with a stop at a drive-through window to purchase more alcohol.

[¶ 4] The victim testified that, once they arrived home, Mr. Skinner took hold of her hair and shirt and she slapped and hit him while yelling for help. Mr. Skinner proceeded to put his knee in her stomach and his hand over her mouth and nose. They continued fighting as they entered their home. The victim testified that, while Mr. Skinner turned around to close the door, she dialed 911 and laid down the telephone without her husband's knowledge. The dispatcher heard a male screaming and a female crying. The dispatcher could also hear the female being slapped, the female pleading for her assailant to stop, and the male threatening, "I'll kill you now." The dispatcher never heard a knife mentioned during the telephone call. The fighting continued and, according to the victim's testimony, Mr. Skinner threw her up against the wall, held her there, and head-butted her. The victim asked for her knife back, and Mr. Skinner took the knife out of his pocket with one hand while keeping the other hand on her neck.

[¶ 5] Soon thereafter, two police officers knocked on the door, and, when no one responded, they kicked in the door. Upon Mr. Skinner's arrest, an officer searched him and found a knife in his front pants pocket. While the officers were at the apartment, the victim told them that Mr. Skinner held the open knife to her throat. Subsequently, the officers took a taped statement from the victim in which she restated her accusations.

[¶ 6] The victim testified that, while Mr. Skinner was released on bond, he asked her not to tell anybody that he had held a knife to her throat and not to tell the whole truth. The victim testified that, in a subsequent fight over the substance of her impending testimony, Mr. Skinner threatened to kill her, held a baseball bat to her neck, and punched her giving her a black eye.

[¶ 7] On direct examination, the victim stated that she could not remember whether or not Mr. Skinner had held the knife to her throat. During the victim's cross-examination, the trial judge appointed her independent counsel reasoning that was necessary because the cross-examination concerned whether she had made a false report to the police and whether she had been forced to lie or was afraid of going to jail as a result of her testimony. With the advice of independent counsel, the victim testified that Mr. Skinner had indeed placed a knife at her throat and threatened to kill her. Mr. Skinner never challenged the fact that the domestic altercation had occurred, but rather he insisted he never held a knife to the victim's throat.

[¶ 8] Mr. Skinner was charged with aggravated assault and battery in violation of § 6-2-502(a)(iii). At arraignment, he pleaded not guilty. Prior to trial, the victim had written a notarized letter to the trial judge disclaiming her allegations that Mr. Skinner threatened her with a knife. As a result, on July 29, 1999, the state filed a motion for detention of a material witness. The state argued the letter written by the victim indicated she was attempting to avoid service in order to refrain from testifying against her husband. The motion was granted, and the victim was arrested and incarcerated throughout Mr. Skinner's trial. Additionally, although the record is unclear as to the basis for the charge, the victim was charged with avoiding service of a subpoena pursuant to Wyo. Stat. Ann. § 6-5-306 (LexisNexis 2001).

[¶ 9] On August 3, 1999, a jury found Mr. Skinner guilty of aggravated assault and battery. On October 6, 1999, the same jury found Mr. Skinner to be a habitual criminal due to his eight previous felony convictions, and the court sentenced him to a term of life in prison. Mr. Skinner appeals his conviction to this court.

DISCUSSION

A. Juror Misconduct

[¶ 10] Mr. Skinner contends he was deprived of his right to a fair and impartial jury due to improper juror conduct in the interim period between the initial trial and the habitual sentencing phase of the trial. After the verdict in the initial trial was announced, a juror contacted the court by letter and came into the defense counsel's office unannounced to personally inquire about a specific issue raised at trial—why the victim was forced to testify against her husband. The defense counsel briefly responded to the juror's inquiry and explained that he had tried to make it clear to the jury why the victim was arrested and forced to testify. The defense counsel immediately informed the trial court of the contact.

[¶ 11] The following morning, the trial court held proceedings in chambers in the presence of the juror, the prosecutor, and the defense counsel. The trial court appropriately admonished the juror and then sought and received assurance by the juror that he could be fair and base his decision regarding the habitual sentencing phase on only evidence produced in the courtroom. The trial court gave a cursory explanation to the juror that the victim was being held as a material witness and, in certain circumstances, a wife can be forced to testify against her husband.³ However, the trial court made it clear that his explanation addressed an issue that had already been determined in the initial trial proceeding and should have no effect on the habitual criminal proceeding. The state objected to the juror remaining on the juror panel, but the defense counsel did not. The trial court concluded the contact was harmless and overruled the state's objection.

[¶ 12] The law is well settled that it is improper for a juror to have any out-of-court communications with witnesses, the court, parties, or counsel concerning a case. Distad v. Cubin, 633 P.2d 167, 182 (Wyo. 1981). Nor can a juror make any attempt to obtain additional evidence other than what is presented in the courtroom. Id.

"There are many obvious reasons for not allowing jurors to supplement the knowledge of the subject-matter of investigation obtained in court from the evidence produced, by pursuing personal and private investigation out of the presence of the

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