Summary 2008 WY 108

Summary of Decision issued September 17, 2008

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

Case Name: Bush v. State

Citation: 2008 WY 108

Docket Number: S-07-0247

Appeal from the District Court of Natrona County, the Honorable David B. Park, Judge.

Representing Appellant: Diane M. Lozano, Wyoming State Public Defender; Tina N. Kerin, Appellate Counsel; Kirk A. Morgan, Assistant Appellate Counsel.

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

Facts/Discussion: In 1990, Lynn Bush, the wife of David Bush, disappeared. In 2007, a jury convicted Bush of second degree murder in connection with his wife’s disappearance. Bush appealed.
Admission of Daughter’s out-of-court statements: After the disappearance of Mrs. Bush, the Bush’s daughter was removed from the care of Mr. Bush and eventually placed with her maternal grandparents. While in their care, the daughter visited a licensed professional counselor and a psychiatrist. During counseling, the child made statements implicating Bush in her mother’s disappearance. The counselor and psychiatrist testified as to statements made by the daughter while in their care.
Admissibility under W.R.E. 803(4): The district court ruled that the statements could come in as an exception to W.R.E. 803(4). The primary purpose of the counselor and psychiatrist was in diagnosis and treatment of the daughter. The counselor stated it was necessary to collect a history of the patient from the family and the patient herself. The testimony showed the child’s statements were consistent with the counselors’ purpose for seeing the child – treatment and diagnosis.
Admissibility – Confrontation Clause: Bush claimed his right to confront the witnesses against him was violated when his daughter testified she could not remember what happened and then the district court allowed her testimonial hearsay statements to be presented through the counselor and psychiatrist. The Court found that the daughter was not unavailable as a witness. She appeared at trial, was placed under oath and testified. Thus, Bush was confronted with the witness and had the opportunity to cross-examine her. The Court stated that even if the daughter had been unavailable for purposes of the confrontation clause, the admission of her out-of-court statements did not violate the Sixth Amendment because they were not testimonial, i.e., their primary purpose was not to establish or prove past events potentially related to later criminal prosecution. Because the Court concluded the child’s statements in the present case were made for purposes of medical treatment and diagnosis, they were admissible under W.R.E. 803(4) whether or not the child was competent at the age of three when she made them.
Testimony by Video Teleconference: The State had intended to call Paul and Caroline Martin as witnesses in the trial. Severe ill health on the part of Mr. Martin prompted a request for testimony by telephone. Eventually, the district court allowed for testimony of the Martins by video teleconference. The Court has not previously addressed the issue of whether a defendant’s confrontation right was violated by presentation of witness testimony via video teleconference. In Maryland v. Craig the United States Supreme Court stated that the right of an accused to confront the witnesses against him is not absolute and may be compromised under limited circumstances. Pursuant to Craig, presentation of the Martins’ testimony by video teleconference was appropriate only upon a showing that it was necessary to further an important public policy and its reliability was otherwise assured. The Court concluded the district court properly applied the Craig test and properly admitted Mr. Martin’s testimony. However, Mrs. Martin was not ill and there was no medical recommendation against her traveling. The district court erred in allowing Mrs. Martin to testify by video teleconference but the error was harmless because her testimony was cumulative of her husband’s.
Denial of Alternative Suspect Evidence: Following a hearing the district court concluded that the evidence the defense presented in its offer of proof was not sufficient to allow its presentation to the jury. The Court noted it had not addressed the issue since Lampitt v. State. The Court reviewed United States v. McVeigh, State v. Brown, State v. Cotto and United States v. Hall and stated the evidence Bush sought to have admitted did nothing more than raise a suspicion that Glendol Bush, his brother, may have been in the area and may have had something to do with the disappearance.
Delay in Filing Charges: In states like Wyoming where there is no statute of limitations for criminal offenses, charges may be filed at any time during the accused’s lifetime unless the delay is found to have violated his constitutional right to due process. The Court adopted the rule articulated in United States v. Marion and have held that pre-charging delay is not a violation of due process absent a showing of both an intentional delay by the state to gain a tactical advantage over the accused and actual prejudice resulting from the delay. After the Court reviewed the record, it stated that Bush failed to meet his burden of showing actual prejudice from the delay.

Holding: The district court did not abuse its discretion or violate Bush’s Sixth Amendment confrontation right when it allowed a counselor and a psychiatrist to testify concerning statements made to them by the Bushes’ daughter. The statements were properly admitted under W.R.E. 803(4) as statements made for the purposes of medical diagnosis and treatment. Additionally, the daughter appeared at trial, took the oath, testified and was subject to cross-examination, thus satisfying the confrontation clause. The district court likewise did not abuse its discretion or violate Bush’s confrontation right when it allowed Mr. Martin to testify by video teleconference. Under the circumstances, presentation of his testimony in that manner was necessary to further an important public policy and the reliability of the testimony was otherwise assured. The error in allowing Mrs. Martin to testify by video teleconference was harmless.
The district court properly excluded evidence of an alternate suspect. Much of the proffered evidence was speculative and did not provide a nexus between the suspect and the crime charged. As for the proffered testimony concerning the alternate suspect’s hearsay statements, the defense failed to show that the statements were trustworthy and reliable. The district court also did not err in denying Bush’s motion to dismiss on the basis of due process violations caused by the delay in charging him. Bush did not show actual prejudice or intentional prosecutorial delay to gain a tactical advantage.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/5xzjrc .

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