Soares v. State
| Docket Number | S-23-0160 |
| Decision Date | 04 April 2024 |
| Citation | 545 P.3d 871 |
| Parties | Wesley De Sousa SOARES a/k/a Wesley Sousa, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Appeal from the District Court of Albany County, The Honorable Misha E. Westby, Judge
Representing Appellant: Office of the State Public Defender: Diane Lozano, Wyoming State Public Defender; Kirk A. Morgan, Chief Appellate Counsel. Argument by Mr. Morgan.
Representing Appellee: Bridget Hill, Attorney General; Jenny L. Craig, Deputy Attorney General; Kristen R. Jones, Senior Assistant Attorney General; Donovan Burton, Assistant Attorney General. Argument by Mr. Burton.
Before FOX, C.J., and KAUTZ*, BOOMGAARDEN, GRAY, and FENN, JJ.
[¶1] Wesley de Sousa Soares was charged with four counts of sexual assault in the first degree. A jury convicted him of three. Mr. Sousa’s arguments on appeal relate to the trial court’s admission into evidence of Exhibits 23 and 24, two compact discs (CDs) that contained audio recordings of telephone calls Mr. Sousa made while in custody. The recordings were mostly in the Portuguese language. We find no reversible error.
[¶2] Mr. Sousa presents four issues on appeal, which we rephrase and consolidate.
1. Did the district court commit plain error when it admitted the audio exhibits into evidence without an accompanying English transcription?
2. Did the prosecutor commit misconduct during his cross-examination of Mr. Sousa or during his closing argument?
3. Did the district court commit structural error by providing the jury with equipment to listen to the audio exhibits?
[¶3] Wesley de Sousa Soares is a Brazilian national and professional jiu jitsu fighter. Mr. Sousa obtained a United States athlete visa and resided in Denver, Colorado. Mr. Sousa’s native language is Portuguese, but he can speak and understand some English.
[¶4] Mr. Sousa and KB met through an online mobile dating application. After communicating online, the two agreed to meet in person. Mr. Sousa went to KB’s residence in Laramie, where KB said he sexually assaulted her multiple times until she escaped. KB went to the hospital, spoke with law enforcement, and completed a Sexual Assault Nurse Examiner (SANE) exam.
[¶5] Mr. Sousa was arrested in Denver and jailed. The State charged him with four counts of sexual assault in the first degree.
Each count was for a separate and specific sexual act KB said he committed against her in her home without her consent. Mr. Sousa claimed KB consented to their entire sexual encounter.
[¶6] While in custody, Mr. Sousa made phone calls, which were recorded and provided to the investigating detective. The recorded conversations were in Portuguese, and law enforcement had them translated. Both the State and Mr. Sousa designated the recordings as trial exhibits in their pre-trial filings. Neither party designated an English transcript of the audio recordings as an exhibit.
[¶7] The State also designated the detention center’s record custodian to lay foundation for the jail phone call recordings in the detention center’s ordinary course of business, and Dorly Piske to testify "regarding translations of jail phone calls [Mr. Sousa] made … consistent with her experience and knowledge of the Portuguese language." Defendant’s witness list included "[a]ll witnesses summoned by the State."
[¶8] The case proceeded to trial, where Mr. Sousa was provided with an interpreter. The State called Deputy Louis Pugliese, the Denver Sheriff’s Department’s custodian of record for recorded phone calls. Deputy Pugliese explained the inmate call recording system. He also testified he provided all jail calls made by Mr. Sousa while in custody at the Denver Sheriff’s Department to Albany County law enforcement.
[¶9] During Deputy Pugliese’s testimony, the State introduced two CDs, designated as Exhibits 23 and 24. The exhibits were each labeled "Portion of Defendant’s jail phone call from Denver" and contained accurate copies of the telephone calls Mr. Sousa made while in custody. Both exhibits were admitted into evidence without objection from defense counsel. The State did not provide the court or the jury with an English transcript of the recordings, and the recordings were never played in open court for the jury to hear.
[¶10] The State later called Detective Jeffrey McKinney, who investigated KB’s case. He testified he became aware of Mr. Sousa’s recorded calls as part of his investigation. He requested the calls from the Denver County Sheriff’s Department and had them translated. Neither Deputy Pugliese nor Detective McKinney testified to what was said in these recordings.
[¶11] Mr. Sousa testified on his own behalf. On cross-examination, the State questioned Mr. Sousa concerning a conversation recorded on the previously admitted audio recordings:
Q. Mr. De Sousa, do you recall having a phone conversation with, I believe, a Rafael, in which you stated, I am a walking weapon?
A. I remember my friend Rafael. And I remember having a conversation with him, but I’m not understanding the question. Are you saying I said I was a weapon?
Q. That’s correct. You stated – so that means, I’m, let’s say, a weapon. A walking weapon?
A. I don’t remember that detail. But I do know that we have a way of talking about each other, about ourselves in jiu jitsu. And when a person is very good at jiu jitsu, you can say I’m like firing - dike an automatic rifle. Or I’m as strong as a .38. My hands are like a weapon.
Q. So given your explanation, you followed up on that statement and said, let me see if you can reason with me and see if you understand my logic. If I am all that, if I am alone in a house with an unarmed defenseless woman, what could I do with her?
A. Now I understand.
I said that in the context of my being a jiu jitsu athlete. And what I said was that if I were alone in a home like that, I could do whatever I wanted to.
[THE STATE]: Your honor, for the record, that’s Exhibit 24 through minute mark 3017, 3252.
[¶12] On redirect, defense counsel asked Mr. Sousa to explain, the statements, he made.
Q. The prosecutor asked you about walking weapon.
Is it your response that what you were talking about is that you could have done some harm to anybody if you wanted to.
And that’s not what you were doing with [KB]?
Explain that.
A. Yes, I would like to explain a little bit more.
Q. Please.
A. I will take as much care, be as careful as possible, so that the jurors can understand.
I’m a professional – I am a professional jiu jitsu athlete.
I am a champion in many countries oftentimes.
And when you have a personality that people are doubting, you find – and then you find yourself inside a bedroom with a woman. Worst things [than] you can imagine –
…
When you’re in a woman with a – when you’re in a room, a bedroom with a woman, you could do worse things than you can even imagine.
Imagine what a man could do with a woman when they’re in a bedroom with them if he’s a bad person or has a bad personality.
[¶13] In its closing argument, the State referenced Mr. Sousa’s statements.
[THE STATE]: You find yourself in a bedroom with a woman. You could do worse things than you can even imagine. Imagine what a man could do with a woman when they are in a bedroom with them.
[KB] did not have to imagine. She lived it.
…
Not only could he do what he wanted, he did what he wanted.
…
The Defendant caused submission of [KB] through the actual application of physical force or forcible confinement to which the Defendant reasonably calculated would cause submission of [KB].
Imagine what a man could do with a woman when they are in a bedroom with them.
…
No matter what type of weapon he claims himself to be.
[¶14] During jury deliberations, the court sent an email to counsel, which read Both State and defense counsel responded to the email, and neither objected.
[¶15] A few hours later, the parties convened to discuss a jury question. The jury asked the court "Is it possible to get the CD recordings transcribed from Portuguese to English?" The court and the parties agreed the jury should not be provided with a transcription since a transcript had not been admitted into evidence.
[¶16] The jury convicted Mr. Sousa of three counts of sexual assault in the first degree and acquitted him of one. The district court sentenced him to six to eight years on each count to be served concurrently with credit for time served. Mr. Sousa timely appealed.
I. The district court did not commit plain error when it admitted the audio exhibits into evidence without an accompanying English transcription.
[¶17] Mr. Sousa contends plain error occurred when the district court admitted Exhibits 23 and 24 because (1) the State offered the exhibits without providing an English transcript and (2) the exhibits were irrelevant and unduly prejudicial. We disagree.
[1–3] [¶18] Because Mr. Sousa did not object to the admission of the audio exhibits at trial, this Court reviews the issue for plain error. Gutierrez v. State, 2020 WY 150, ¶ 5, 477 P.3d 528, 530 (Wyo. 2020) (citing Grater v. State, 2020 WY 102, ¶ 7, 468 P.3d 1116, 1118 (Wyo. 2020)); W.R.E. 103(d). "Under plain error, an appellant must prove: ‘1) the record clearly reflects the incident urged as error; 2) a violation of a clear and unequivocal rule of law; and 3) that he was materially prejudiced’ by the alleged error." Gutierrez, 2020 WY 150, ¶ 5, 477 P.3d at 530-31 (quoting Bogard v. State, 2019 WY 96, ¶ 21, 449 P.3d 315, 321 (Wyo. 2019)). "Failure to establish each element precludes a finding of plain error." Lott v. State, 2022 WY 143, ¶ 10, 519 P.3d 646, 649 (...
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