State v. Winward

• Decision Date: 12 June 1997
• Docket Number: No. 960274-CA,960274-CA
• Citation: 941 P.2d 627
• Parties: 319 Utah Adv. Rep. 8 STATE of Utah, Plaintiff and Appellee, v. Shannon Glen WINWARD, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 627

941 P.2d 627

319 Utah Adv. Rep. 8

STATE of Utah, Plaintiff and Appellee, v. Shannon Glen WINWARD, Defendant and Appellant.

No. 960274-CA.

Court of Appeals of Utah.

June 12, 1997.

Edward K. Brass, Salt Lake City, for Defendant and Appellant.

Jan Graham and Barnard N. Madsen, Salt Lake City, for Plaintiff and Appellee.

Before WILKINS, Associate P.J., and BILLINGS and ORME, JJ.

OPINION

ORME, Judge:

Appellant Shannon Glen Winward challenges a jury verdict finding him guilty of four counts of sodomy on a child, a first degree felony, in violation of Utah Code Ann. § 76-5-403.1 (1995), and one count of sexual abuse of a child, a second degree felony, in violation of Utah Code Ann. § 76-5-404.1(1) (1995).

Appellant raises three claims of error. Two claims concern prosecutorial misconduct: (1) failure of the prosecutor to present evidence in support of the prejudicial innuendo in his cross-examination of appellant and (2) improperly commenting on appellant's exercise of his constitutional rights to the assistance of counsel and to remain silent. Appellant's third claim is that he received ineffective legal assistance at trial. We affirm.

FACTS

Although we present some conflicting evidence as it pertains to the issues appellant has raised on appeal, for the most part "[w]e recite the facts in the light most favorable to the jury's verdict." State v. Cosey, 873 P.2d 1177, 1178 (Utah.Ct.App.), cert. denied, 883 P.2d 1359 (Utah 1994). Accord State v. Hamilton, 827 P.2d 232, 233 (Utah 1992).

A. Background

In May 1995, appellant was brought to trial on charges that he sodomized his girlfriend's two boys, T.W., age eight, and R.W., age ten, and sexually abused a neighbor boy, A.F., age six. ¹ There was no physical evidence of sexual abuse. The only evidence of sodomy and sexual abuse came from the testimony of the three boys. A.F. testified that, one Friday morning before school, appellant, while baby-sitting A.F., pulled down A.F.'s pants and fondled the six year-old's penis and anus.

On the following Sunday night, A.F. told his mother that appellant had played with his private parts, and she called the police, who came to A.F.'s house and interviewed him that night. On Tuesday, A.F.'s mother called R.W. and T.W.'s mother and told her about A.F.'s accusations against appellant. A.F.'s mother testified that, after this discussion, R.W. and T.W.'s mother "grounded" them. R.W. testified that his mother told him and T.W. they were not to talk to anyone about it.

After A.F. talked with the police, a detective and a social worker went to the boys' school to interview R.W. and T.W. The older R.W. told them that appellant repeatedly sexually abused him over the past four years. However, the younger T.W. told the police "everything was a lie." At trial, he testified that he said this because he was afraid he "might go to jail" because he was being interviewed by a policeman, and "policeman take people to jail." T.W. then provided the jury with details of appellant's almost daily sexual abuse over the previous four years. At trial, T.W. and R.W. each gave explicit testimony about how appellant anally and orally sodomized them, rubbed their penises, and forced them to orally sodomize each other and to rub each other's penises.

T.W. testified that he had told his mother that appellant was "being mean" and "hurting" them, because he didn't then know the words "sexual abuse." R.W. testified that he told his mother many times, beginning within a day or two after the first instance, that appellant was molesting them, but she did nothing to prevent the abuse or to protect her children from appellant.

Appellant denied ever sodomizing the boys or molesting them in any way. He testified that he had never been convicted of any crimes. Two of appellant's friends, who had seen T.W. and R.W. interact with appellant many times, testified that neither boy expressed any fear of, or problems with, appellant. Also, the medical examinations of both T.W. and R.W. showed no physical evidence of the abuse claimed. However, the State's expert, who had examined R.W. and T.W., testified that she could not rule out sexual abuse because, in cases of anal sodomy of children, use of lubricants and normal bowel functioning can mitigate damage, and some injuries to the rectal area heal quickly. The expert also testified that, in cases of oral sodomy and genital rubbing, she generally would not expect to see any physical indication of abuse.

B. Facts Regarding Challenged Cross-examination/Innuendo

During direct examination, appellant responded to his counsel's questions concerning the time he first heard about R.W.'s and T.W.'s accusations. Appellant stated that he first heard the accusations at a juvenile court hearing.

In cross-examining appellant, the prosecutor further explored when appellant first heard about the boys' accusations. In the course of this examination, appellant referred to the juvenile court as a "kangaroo court." The prosecutor elicited testimony concerning this characterization. He also established that appellant was only allowed to go to the first hearing in juvenile court but was not allowed at further proceedings because he had neither biological nor marital ties to the boys' family. The prosecutor also inquired about appellant's intentions to marry the boys' mother. Appellant responded that they had talked about marriage. Appellant then stated that he wanted to get married, but would not "marry her until this is taken care of." The prosecutor then asked, "But in the meantime she gave up her boys, right?" ²

Appellant's counsel objected and requested to have the jury excused. The court excused the jury, whereupon appellant's counsel moved for a mistrial based on prosecutorial misconduct. Appellant's counsel argued that the prosecutor's question had put before the jury, in an inadmissible form, information suggesting that T.W. and R.W.'s mother had surrendered custody of her sons to the State. He further argued that the question unfairly bolstered the boys' credibility since they had testified they had told their mother about the molestation, and she had done nothing. Appellant's counsel argued that a limiting instruction was insufficient and a mistrial was the only appropriate remedy. Finally, he argued that the question was beyond the scope of direct examination and that the prosecutor had created the issue and was not merely addressing something appellant had raised.

The prosecutor responded that his line of questioning legitimately followed up on the relationship of the parties which appellant had raised during direct examination. The prosecutor proposed that if the court deemed the question inappropriate, he could withdraw it, and the court could give a limiting instruction at appellant's option. The prosecutor then conceded that, "[w]hether or not an absent witness gave up her children I suppose could be deemed irrelevant at this point."

The trial court denied the motion for mistrial, but sustained the objection and gave a curative instruction proposed by the defense. Before the jury returned, appellant's counsel explicitly renewed his motion for mistrial.

C. Facts Pertaining to Challenged Cross-examination and Argument Concerning Constitutional Rights

On direct examination, appellant was asked whether he had been interviewed prior to being arrested. Appellant testified that no one had interviewed him.

During cross-examination, the prosecutor pursued appellant's response that nobody had ever interviewed him about this case. The prosecutor asked appellant if Detective Mitchell had ever interviewed him. Appellant admitted that Detective Mitchell asked to talk with him after he had been arrested. However, appellant testified that he told the detective that he would only talk with the detective if his lawyer were present, and appellant "never heard from him again." The prosecutor followed up by asking appellant if the reason that nobody interviewed him was that he "wanted to be interviewed only in a certain way and that never happened." Appellant disagreed and explained that he was never interviewed by the detective before the arrest because they worked different schedules, and neither was willing to work with the other to set up an interview. Appellant testified that the first time he met Detective Mitchell was in jail.

At this point, the prosecutor rephrased his earlier question, asking if appellant had wanted to be interviewed "only under certain conditions." Appellant responded that he wanted to have his lawyer there to protect his rights. The prosecutor acknowledged that that was "fine and appropriate," and then, after reconfirming the previous question, asked appellant whether the detective ever talked with appellant's lawyer. ³ Appellant's counsel objected as to relevance, and the prosecutor said: "And I agree. We'll move on. The interview never happened, though; right?" Appellant answered, "No."

In closing argument, the prosecutor referred to the above cross-examination as follows:

The defendant said on cross-examination that--no, he said it first on direct examination, and then I asked him about it on cross-examination, that no one really tried to interview him.

But on cross-examination, perhaps a different view of what exactly he meant by that came out, and you have to decide what he meant when he said that nobody tried to interview him.

Is it possible that he has some misconception about what the detective was going to do after he said he wanted to have his lawyer present? He certainly didn't put his lawyer on the stand to testify, so you have to fill in the blanks yourself.

But that statement about, "No one ever tried to interview me," I think is misleading. Maybe you think it's not misleading. It's not what I think that's important, though; it's what you think.

Appellant did not object to the prosecutor's closing argument before the jury returned its verdict. After the jury...