Sumamry 2008 WY 22

Summary of Decision issued February 28, 2008

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Large v. State

Citation: 2008 WY 22

Docket Number: 06-89

Appeal from the District Court of Sweetwater County, the Honorable Jere A. Ryckman, Judge

Representing Appellant (Defendant): D. Terry Rogers, Interim Public Defender; Donna D. Domonkos, Appellate Counsel; Ryan R. Roden, Senior Assistant Public Defender; ; and David E. Westling, Senior Assistant Public Defender.

Representing Appellee (Plaintiff): Patrick J. Crank, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and James Michael Causey, Assistant Attorney General.

Facts/Discussion: Ms. Large appealed her conviction on one count of Conspiracy to Commit Sexual Assault in the Second Degree in violation of Wyo. Stat. Ann. §§ 6-2-303(a)(v) and 6-1-303(a) and two counts of Sexual Exploitation of Children, in violation of Wyo. Stat. Ann. § 6-4-303(b)(ii). She contended that the trial court allowed impermissible testimony that vouched for the victim’s credibility as well as testimony that constituted improper expert opinion of her guilt. She also challenged testimony that she asserted was inadmissible hearsay.

Dr. Gibson’s Testimony: Ms. Large contended that Dr. Gibson impermissibly provided opinion testimony of her guilt and vouched for the credibility of JL. The Court determined that Dr. Gibson’s expert testimony was permissible because it related to his diagnosis. The testimony regarding JL’s statements that she was abused by Ms. Large required a two-part test. The declarant’s motive must be consistent with the purposes of promoting treatment or diagnosis and the content of the disclosure must be that reasonably relied on by the expert. The record supported that the testimony was not erroneously admitted. The testimony that Ms. Large asserted was opinion testimony of her guilt was similar to testimony they have held to be improper in other cases such as Stephens. In evaluating the testimony, the Court noted the prosecutor’s closing argument stating that Dr. Gibson said that he believed sexual abuse had occurred at the hands of Ms. Large and David Dye. The Court concluded that the challenged testimony was an improper prosecutor-elicited opinion of guilt. As a general principle the choice between the plain error standard and the error per se standard depends upon whether the error is a “structural” or a “trial” error. The trial court concluded that opinion of guilt testimony was not a structural error. That did not resolve the question of whether an error per se approach was appropriate. The Court found no proper basis for applying an error per se standard of review to prosecutor-elicited opinions of guilt. While it may be error to admit an opinion of guilt, it is trial error rather than structural error. The Court stated they would no longer treat a prosecutor-elicited opinion of guilt as error per se. To the extent this decision conflicted with the Court’s holdings in Stephens, they overruled Stephens. The Court reviewed for plain error because Ms. Large did not object to the statements at trial. Given all of the evidence introduced against Ms. Ms. Large at trial, there was no reasonable possibility that the verdict might have been more favorable to her in the absence of the challenged testimony.
Ms. England’s Testimony: The Court reviewed the record and stated that Ms. England did not improperly vouch for JL’s credibility. Ms. England’s reference to JL’s lying behavior was initially brief. It was defense counsel who attempted to capitalize on what might have been considered useful impeachment material. This opened the door and the Court saw nothing improper in the prosecutor’s treatment of the issue on re-direct.
Inadmissible Hearsay: The Court noted the four elements that determine whether W.R.E. 801(d)(1)(B) applied. In the instant case, the declarants testified at trial, Ms. Large had the opportunity to cross-examine them, although the testimony did not precisely mirror the out-of-court statements, they were sufficient to render the testimony of the foster mother and the investigator admissible. The record showed that the prior statements were in fact offered to rebut explicit charges of improper influence.

Holding: Ms. Large was not able to establish that Dr. Gibson’s opinion of guilt testimony was prejudicial. There was no plain error in the admission of Ms. England’s testimony considering that the defense opened the door when he attempted to capitalize on what might have been useful impeachment material. The record showed the defense theory throughout the trial was that the children had been improperly influenced to make false accusations. The record established that all four elements required to apply W.R.E. 801(d)(1)(B) were met in the instant case, so the trial court did not violate any clear and unequivocal rule of law when it allowed the testimony.

Affirmed.

J. Burke delivered the decision.

Link: http://tinyurl.com/3yxy3v .

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