Warner v. State, 00-27.
| Decision Date | 01 August 2001 |
| Docket Number | No. 00-27.,00-27. |
| Citation | 2001 WY 67,28 P.3d 21 |
| Parties | Thomas Eugene WARNER, a/k/a Thomas Rodriguez, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Sylvia Lee Hackl, State Public Defender; Donna D. Domonkos, Appellate Counsel; Tina N. Hughes, Assistant Appellate Counsel, Representing Appellant. Argument by Ms. Hughes.
Gay Woodhouse, Wyoming Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Robin Sessions Cooley, Senior Assistant Attorney General, Representing Appellee. Argument by Ms. Cooley.
Before LEHMAN, C.J., and GOLDEN, HILL, and KITE, JJ. GOLDEN, Justice.
[¶ 1] Appellant Thomas Eugene Warner appeals his convictions and sentences for second degree sexual assault and indecent liberties with a minor, contending that constitutional speedy and fair trial violations, prosecutorial misconduct, and unfair sentencing require that we reverse his conviction and sentence. Finding no reversible error, we affirm.
[¶ 3] In 1978, when he was fifteen years old, Warner began living with his half-sister, her husband, and their three children in Cheyenne. He lived there continuously until 1981, returned briefly for a few months in 1983, and visited during the summer of 1984. In November of 1989, one of the children, CM, then a ninth-grader, reported to a school counselor that her uncle had molested her. The Department of Family Services (DFS) conducted an investigation in February of 1990, and closed the case without action. Warner moved to Georgia and returned for a visit in 1997. During that visit, Warner apologized to two of the children for molesting them. That apology was witnessed in part by the mother and another person, and the mother reported him to police.
[¶ 4] On September 2, 1997, the investigating police officer located Warner at a downtown bar and interviewed him outside. The officer testified that he was investigating Warner for felony sexual assault crimes, but informed Warner that he was not under arrest, and was free to leave at any time. After Warner agreed to speak with him, the officer described the allegations, and at that time, Warner admitted to the investigating officer that he had molested the children. Warner agreed to go to the police station where he then refused to speak further without an attorney. At trial, the officer testified that after Warner stated his intention to leave without making a statement, he received Warner's permission to take a photograph. The officer testified that he took the photograph because Warner had earlier mentioned that he planned to return to his daughters in Norcross, Georgia, as soon as possible, and the officer wanted to have a photograph on file in the event that an arrest warrant issued. Because he was not in custody, Warner was free to and did leave.
[¶ 5] The State's investigation indicated that Warner had harmed all three children and, on September 12, 1997, a warrant was issued for his arrest. At some point, Warner apparently returned to Georgia, because in February of 1999, following a stop for a traffic violation in Georgia, the warrant showed on an NCIC check, and Warner was returned to Wyoming for trial on two counts of second degree sexual assault, Wyo. Stat. Ann. § 6-2-303(a)(v), and two counts of immoral acts with a minor, Wyo. Stat. Ann. § 14-3-105(a). The amended information stated that he had committed all crimes during the period of February 1983 through May 1983, and, at that time, the sexual assault victim was less than twelve years of age and Warner was at least four years older than the victim. In 1983, Warner was 19 years old.
[¶ 6] Warner was arraigned on March 3, 1999, and, on June 23, 1999, filed a motion to dismiss for lack of speedy trial. That motion was denied after hearing. In a pretrial hearing concerning the admissibility under W.R.E. 404(b) of Warner's uncharged sexual abuse of another child, SP, the trial court stated:
I don't think the court can either grant or deny the motion. The notice is here. He's got, I think, the testimony of the earlier witnesses. So we'll decide as these witnesses are called. I think we'll have to hear their testimony initially outside the presence of the jury. So I'm going to proceed on that basis.
Trial was held on July 12-14, 1999. During the trial, the court excused the jury, and the prosecutor questioned CM about her personal observations of Warner's sexual abuse of SP as an offer of proof for admission of the 404(b) evidence. Following that proffer, the trial court ruled that separate uncharged acts perpetrated against SP were inadmissible.
[¶ 7] Despite this ruling, during cross-examination of the DFS social worker, the prosecutor conducted the following cross-examination:
Based on this conduct of the prosecutor, the defense counsel renewed its motion for judgment of acquittal and moved for mistrial. Although the district court determined that the prosecutor's question was improper, it found that because the testimony thus far indicated that Warner had made admissions, no prejudice had resulted and denied both motions.
[¶ 8] Defense counsel presented Ms. Huylar, the Department of Family Services social worker who, in 1990, had investigated CM's allegations against Warner. Ms. Huylar described her investigation of the allegations and testified that the investigation ended by her determination that the allegations could not be substantiated. On rebuttal and over defense's objection, the State had a pediatrician testify as an expert concerning proper forensic interview technique and the general behavior of child abuse victims. Before cross-examination, the defense requested a mistrial which was denied. The jury convicted Warner, and he was sentenced to consecutive sentences on each of the four counts. This appeal followed.
[¶ 9] Warner contends that his right to speedy trial was violated because trial occurred 658 days after the filing of the criminal complaint. W.R.Cr.P. 48 governs the time period between arraignment and trial; however, delays between the time charged and the time of trial are subject to the Sixth Amendment. Doggett v. United States, 505 U.S. 647, 651, 655-56, 112 S.Ct. 2686, 2690, 2693-93, 120 L.Ed.2d 520 (1992); Jennings v. State, 4 P.3d 915, 921 (Wyo. 2000). This Court examines de novo the constitutional question of whether a defendant has been denied a speedy trial in violation of the Sixth Amendment. We review the district court's factual findings for clear error.
[¶ 10] The Sixth Amendment to the United States Constitution guarantees that the accused shall enjoy the right to a speedy and public trial. In deciding whether a defendant has been denied a speedy trial, courts must balance 1) the length of the delay; 2) the reason for the delay; 3) the defendant's assertion of his right; and 4) the prejudice to the defendant. Campbell v. State, 999 P.2d 649, 655 (Wyo.2000); Barker v. Wingo, 407 U.S. 514, 530, 533 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972). None of these factors alone is sufficient to establish a speedy trial violation, "[r]ather they are related factors and must be considered together with such other...
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