Sweet v. The State Of Wyo., S-09-0021.

• Citation: 2010 WY 87,234 P.3d 1193
• Decision Date: 28 June 2010
• Docket Number: No. S-09-0021.,S-09-0021.
• Parties: Robert Allan SWEET, Appellant (Defendant),v.The STATE of Wyoming, Appellee (Plaintiff).
• Court: United States State Supreme Court of Wyoming

234 P.3d 1193

2010 WY 87

Robert Allan SWEET, Appellant (Defendant),v.The STATE of Wyoming, Appellee (Plaintiff).

No. S-09-0021.

Supreme Court of Wyoming.

June 28, 2010.

COPYRIGHT MATERIAL OMITTED

Representing Appellant: Diane Lozano, Wyoming State Public Defender; Tina Kerin, Appellate Counsel; Wyoming Public Defender Program. Argument by Ms. Kerin.

Representing Appellee: Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Jenny L. Craig, Assistant Attorney General. Argument by Ms. Craig.

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

GOLDEN, Justice.

[¶ 1] In this appeal, Robert Allan Sweet, convicted by a jury of one count of sexual abuse of a minor in the second degree, in violation of Wyo. Stat. Ann. § 6-2-315(a)(ii) and (b) (LexisNexis 2009),¹ raises three issues in his effort to overturn the judgment and sentence of incarceration of not less than 30 months nor more than 102 months, with credit for 315 days of presentence confinement. Sweet and the State agree that, generally stated, the three issues are whether the State presented improper vouching evidence; whether the district court's Jury Instruction No. 11 was improper; and whether cumulative error occurred because of alleged improper victim impact testimony, alleged judicial and prosecutorial bias in favor of the alleged victim, admission of alleged irrelevant evidence, and the prosecutor's multiple references to sexual assault. Because Sweet did not object at trial with respect to any of these issues, we shall apply our plain error standard of review in each instance.

[¶ 2] For the reasons set forth below, we hold that the State's presentation of improper vouching evidence constituted plain error and, therefore, we reverse and remand for a new trial. Although resolution of this issue is dispositive of this appeal, we shall also address the remaining issues because they may recur on retrial.

GENERAL STATEMENT OF FACTS

[¶ 3] On November 29, 2007, thirty-seven-year-old Sweet was living in a trailer in Gillette, Wyoming, with a number of individuals, including CB and CB's twelve-year-old daughter, SM. SM stayed home from school that day because she was feeling ill. Her mother and the others, except Sweet, left the trailer to take the children to school. As SM lay on a recliner in the front room watching a video, Sweet was sleeping on the couch in the front room. SM fell asleep in the recliner and was allegedly awakened by Sweet who was pushing her shoulder and grabbing her hands and holding them above her head. According to SM, Sweet began to touch her breasts on the inside of her clothing, unzipped his pants and pulled out his penis, and told her not to tell anyone. SM said Sweet tried to pull down her pants, but she resisted his effort by pressing into the recliner. SM said she was screaming and trying to kick Sweet between his legs. She said Sweet had been drinking as she could smell it on him. According to SM, Sweet started crying, stopped what he was doing, and went into the bathroom. When SM's mother returned home, SM told her what happened, and her mother angrily confronted Sweet and called the police. Sweet left the trailer and was shortly apprehended by law enforcement personnel inside a residence in the neighborhood. After being taken into custody, Sweet was transported by a deputy sheriff to the sheriff's department, interviewed, and placed under arrest.

[¶ 4] On November 30, 2007, the prosecutor filed a felony information charging Sweet with one count of sexual abuse of a minor in violation of Wyo. Stat. Ann. § 6-2-315(a)(ii) and (b). On December 6, 2007, Sweet waived his right to a preliminary hearing and was bound over to the district court. He was arraigned on February 7, 2008, and entered a plea of not guilty to the charge. On February 11, 2008, he filed a motion to suppress recorded statements made on November 29, 2007, to sheriff's deputy Duane Peyrot, alleging that any statements were not voluntarily made because of his alcohol consumption. The State filed its traverse to this suppression motion on March 11, 2008. The district court filed its order denying the motion on April 22, 2008.

[¶ 5] On June 9, 2008, Sweet's jury trial began, and on June 10, 2008, the jury returned a verdict of guilty. The district court held a sentencing hearing on October 9, 2008, and entered sentence on November 14, 2008. Sweet timely filed a notice of appeal on November 19, 2008. Additional facts relevant to each of the three issues before us are set forth as necessary below.

DISCUSSION

Issue One: Whether the State presented improper vouching evidence.

Background Facts

[¶ 6] In the State's pretrial exhibit list, the prosecutor listed the compact disc recording of the interview between Deputy Duane Peyrot and Sweet conducted in an interview room in the sheriff's department in the early afternoon of November 29, 2007, the day of the alleged incident giving rise to the charge against Sweet. Sweet's defense counsel had moved before trial to suppress the recording but only on grounds that Sweet's statements during the interview were involuntary, which motion the trial court had denied. Defense counsel made no other objections to the admissibility of the recording, did not move in limine to redact any portions of the recording, and did not offer any cautionary jury instructions or admonitions concerning the recording.²

[¶ 7] During jury selection, the prosecutor informed the prospective jurors that they would get to hear Sweet's recorded interview. After the jury was empanelled, the prosecutor made his opening statement. In the course of that statement, he commented on Deputy Peyrot's recorded interview with Sweet. The prosecutor stated that after Deputy Peyrot had talked in detail with SM and her mother, Deputy Peyrot returned to the sheriff's department and interviewed Sweet. The prosecutor then stated:

You will get to hear the deputy's impressions of Mr. Sweet as he sat there at that table; the fact that it was obvious to him that he had been drinking. You will get to hear Mr. Sweet's words as he responds to the questioning process. As I recall it, that interview takes approximately a half hour. And I will request that you pay very, very close attention to that recording for a couple of reasons.

First, we think that you will see a shift in position by Mr. Sweet as the interview takes place. We think you will see that he was able to understand the questions that he was asked; that he was able to defend the positions he took at various times during the interview, and we think toward the end of it you'll begin to hear a couple of things that become significant to you.

First of all, he'll agree he had a close relationship with the young girl, nearly a father/daughter type of relationship.

Second, we believe that you'll hear that he believed she's truthful.

Third, you'll be able to hear Mr. Sweet thought he might have done something in his sleep.

Now, of significance to this case-well, let me back up just a little bit. Now, you'll be able to hear the entirety of that recording during Mr. Peyrot's testimony, and I may use it again in my closing argument. But I must ask you to pay very close attention to that, because even though you'll be allowed to take the recording into the jury room, you will not get to play it again. So it is significant evidence, and you need to concentrate on it. [Emphasis added.]

[¶ 8] Defense counsel did not object to the prosecutor's opening statements. But, defense counsel did address in his opening statement what he called Sweet's “so-called confession.” He asked the jurors to listen very carefully and “to keep really careful notes of the things said in that.” He then stated:

One of the things that I'd like you to watch for is to see if Mr. Sweet ever says that I did this. You're never going to hear that. In fact, he says he didn't do it. He didn't do it. He says, Well, he admitted he might have been-done it in his sleep. No, that's not exactly right, and you'll have to be the judges of that, not me.

That what he says is that at one point, Well, if I did it, I must have been-I must have been asleep. Because he is denying that this ever happened, and that's what you're going to hear, and that's what-that's what it actually is. Mr. Peyrot is a very good questioner and very experienced, and you'll hear that, too. But you will not hear a confession out of it for this particular offense....

[¶ 9] Following the opening statements, the State presented its case-in-chief. The prosecutor called as witnesses, in order, SM; SM's mother, CB; John Wilkey, at whose residence Sweet was located after leaving the trailer when SM's mother angrily confronted him; Deputy Sheriff Kim Benedict, who drove Sweet to the sheriff's department after he had been taken into custody at Mr. Wilkey's residence; and Deputy Sheriff Duane Peyrot, who interviewed both SM and Sweet on the day of the alleged incident.

[¶ 10] Because the appellate issue of improper vouching focuses on Deputy Peyrot's statements concerning Sweet's mendacity and guilt and SM's truthfulness appearing in his recorded interview with Sweet, we shall begin with a review of relevant portions of the prosecutor's direct examination of Deputy Peyrot which explored both the deputy's interview of SM and his interview of Sweet. In response to the prosecutor's preliminary questions, the deputy testified briefly about his fifteen years in law enforcement which included the most recent eight years as a felony investigator. The prosecutor then questioned the deputy about his interview of SM and SM's mother at their residence:

Q. And did you go inside the residence?

A. I went inside where I met [CB], introduced myself to her. She introduced me to [SM]. Those are the two people in the house at the time.

Q. All right. Once you'd been introduced to both of them, what did you do, sir?

A. Well, briefly I talked to [CB]. She

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