Stephens v. State

• Decision Date: 03 May 1989
• Docket Number: No. 86-241,86-241
• Citation: 774 P.2d 60
• Parties: Bill C. STEPHENS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 60

774 P.2d 60

Bill C. STEPHENS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 86-241.

Supreme Court of Wyoming.

May 3, 1989.

David A. Hampton, Honaker & Hampton, Rock Springs, for appellant.

Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., Karen A. Byrne, Asst. Atty. Gen., for appellee.

Before CARDINE, C.J., THOMAS, URBIGKIT and MACY, JJ., and BROWN, J., Retired.

THOMAS, Justice.

The significant question that we address in this case is whether expert opinion as to the guilt of the defendant can be admitted at a trial of a charge of sexual abuse of a child. Other issues are presented with respect to admissible testimony including whether, in such a case, an expert witness should be permitted to state that he believes the victim and whether witnesses should be permitted to testify about the statements of the victim. In addition, error is asserted by claims that the trial court abused its discretion in finding the victim competent to testify and that it improperly refused to permit the jury, in the course of its deliberations, to listen to an audiotape of an interview with the victim. We also note a concern about improper cross-examination of the defendant followed by an improper closing argument that had the effect of impermissibly shifting the burden of proof. We reverse this conviction because the expert witnesses, in effect, stated opinions as to the guilt of the defendant, and one of them vouched for the truthfulness of the victim. We address the other claims of error and our independent concerns because of the possibility of potential reoccurrence at a new trial.

Bill C. Stephens appeals from a conviction of taking immoral or indecent liberties with a child in violation of § 14-3-105, W.S.1977. That statute provides:

"Any person knowingly taking immodest, immoral or indecent liberties with any child or knowingly causing or encouraging any child to cause or encourage another child to commit with him any immoral or indecent act is guilty of a felony, and upon conviction shall be fined not less than one hundred dollars ($100.00) nor more than one thousand dollars ($1,000.00) or imprisoned in the penitentiary not more than ten (10) years, or both."

The victim of Stephens' conduct was his minor son.

In the original Brief of Appellant, Stephens presented the following issues:

"1. Did the trial court err when it issued a blanket denial to the jury, denying the jury's request that they be allowed to listen to the original tape recording of the D-PASS interview of the child during deliberations?

"2. Did the trial court err in allowing psychologists to testify regarding hearsay statements of the child?

"3. Did the trial court err in allowing the child's grandfather to testify concerning hearsay statements made by the child?

"4. Did the trial court abuse its discretion by allowing the child to testify for the reason that the trial court failed to establish the competency of this witness?"

The State, in its brief, responded with this version of the same issues:

"I. Whether the trial court abused its discretion by refusing to allow the jury to listen to a taped interview with the victim during deliberations.

"II. Whether the trial court properly allowed two psychologists to testify to statements made by the victim and his grandmother.

"III. Whether the trial court properly allowed testimony of the victim's grandfather concerning an incident involving the victim.

"IV. Whether the trial court properly established the competency of the victim to testify."

After hearing oral argument and reviewing the briefs and the record, the court ordered rebriefing of certain issues to address the possibility of significant errors that had not been addressed in the original briefs. The matters concerning which the court requested briefing were:

"1. Did the trial court err in permitting testimony by expert witnesses setting forth opinions as to whether the victim had been sexually assaulted and further opinions as to the identity of the perpetrator?

"2. Did the trial court err in permitting testimony by an expert witness that the witness believed the victim?"

"3. Did plain error occur in permitting interrogation of the defendant as to what he had done to prove that he was not the perpetrator, followed by argument that suggested an obligation on the part of the defendant to prove that he was not the perpetrator?"

We note the objection of the State to the court's order with respect to additional briefing of issues not raised by the appellant. The State contends that this is contrary to the court's rule as a neutral and detached judicial body. We are sensitive to the proposition that judicial restraint generally demands that we address only those issues properly before us and preserved for our review. We also know that it is within our jurisdiction to decide any case as justice may demand. White v. Fisher, 689 P.2d 102 (Wyo.1984); Allen v. Allen, 550 P.2d 1137 (Wyo.1976). In addition, recent experience with post-conviction remedies teaches us that the failure of counsel to raise issues which implicate constitutional rights of a defendant in an appeal will result in those issues being presented in a subsequent proceeding under a claim of ineffective assistance of counsel. Consequently, judicial efficiency strongly suggests the treatment of obvious matters in the first appeal. We also have in mind the pertinency to the State of Wyoming of this statement by the Supreme Court of the United States:

" * * * Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly. An inscription on the walls of the Department of Justice states the proposition candidly for the federal domain: 'The United States wins its point whenever justice is done its citizens in the courts.' " Brady v. State of Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1197, 10 L.Ed.2d 215 (1963).

It is not without regret that the court reverses Stephens' conviction. The record discloses a strong case against him. The state presented the testimony of Stephens' ex-wife, the mother of the victim, who reported pertinent information about Stephens and some specific information involving the victim. There was testimony of witnesses who participated in an investigatory interview of the victim jointly conducted by the Department of Public Assistance and Social Services (D-PASS) and the Sexual Assault Task Force. A pediatrician testified about his evaluation of the victim and provided information concerning pedophilia. The victim's grandparents reported their observations of the victim, and several expert witnesses testified about their evaluations, including the conclusions they reached as to the existence of sexual abuse and, in some instances, the treatment of the victim. The little boy himself testified. In the defense case, a physician testified that he had treated the victim about twelve times for various conditions and had neither observed nor heard anything that might cause him to suspect sexual abuse. The defense called a psychologist who had examined the victim, and he was critical of the interviewing techniques and suggestive questioning of the victim. That witness, however, agreed that he thought the victim had been sexually abused and that, if he were accepting him as a patient, he would begin with that premise. Stephens himself testified and denied any misconduct.

There indeed is potential for a proper foundation which would justify the introduction of the expert testimony concerning the behavior of child victims of sexual abuse, the observations made of this particular victim including those items that brought him within the pattern of child victims of sexual abuse, and even the statements, accusatory in nature, of the victim made to the expert witnesses. The problem of pedophilia is sufficiently abhorrent to those who are not afflicted with such aberrant behavior that it is necessary to have experts explain this phenomena to those who sit in judgment in order for them to overcome their inherent rejection of such situations and to deal with the reality of the information being presented. Our analysis of those concerns will follow the discussion of the testimony which we hold went beyond proper limits.

As the record discloses, expert witnesses were permitted, in one way or another, to attribute guilt to Stephens. Perhaps the prosecuting attorney perceived this to be the frosting on the cake. Unfortunately, only the taste buds of the one who partakes can know whether they respond to the frosting, or to the cake. That, like the response of a member of the jury, is incalculably subjective. Consequently, if the frosting is bad, the morsel may not stay down even though the cake was sufficient to the need. In this instance, it is impossible to know whether one, or more, or all of the jurors may have responded to the testimony of the expert witnesses attributing guilt to Stephens. If that did occur, however, it would be the ultimate abdication of the function of the jury. We are compelled to reverse a case in which such testimony was admitted.

The expert witnesses included a pediatrician who had examined and treated cases of child sexual abuse and who had testified as an expert on the subject in several trials. He described some symptoms, both physical and behavioral, that, in his opinion, are commonly displayed by child victims of sexual abuse. The symptoms that he related included an unusual awareness of specific sexual acts, such as oral copulation, bed-wetting, changes in moods, and nightmares. This victim displayed all of these symptoms described by the witness. The doctor advised the jury that statistically eighty to eighty-five percent of child sexual abuse is committed by a relative close to the child. No objection was made to this testimony and, although one court has found error in the...