Summary 2010 WY 27

Summary of Decision issued March 16, 2010

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Case Name: Woyak v. State

Citation: 2010 WY 27

Docket Number: S-09-0055

Appeal from the District Court of Laramie County, Honorable Peter G. Arnold, Judge

Representing Appellant (Defendant): Diane Lozano, State Public Defender; Tina Kerin, Appellate Counsel; and David E. Westling, Senior Assistant Appellate Counsel.

Representing Appellee (Plaintiff): Bruce E. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Leda M. Pojman, Senior Assistant Attorney General.

Date of Decision: March 16, 2010

Facts: Appellant was convicted of three counts of sexual assault in the second degree in violation of Wyo. Stat. Ann. § 6-2-303(a)(v) (2005) and two counts of sexual exploitation of children in violation of Wyo. Stat. Ann § 6-4-303(b)(ii) (2009).

Issues: Whether the district court violated Appellant's constitutional rights to due process and confrontation by excluding him from a witness competency hearing in violation of Wyo. Stat. Ann. § 7-11-202 and W.R.Cr.P. 43. Whether the district court abused its discretion by failing to conduct an independent competency hearing of a minor child and failing to make a finding supported by competent evidence that the child possessed a memory sufficient to retain an independent recollection of the occurrence as required by Wyoming law. Whether the trial court erred by submitting a verdict form that was unspecific as to the nature of the charges over the objection of Appellant.

Holdings: In the present action, the questioning of Victim 1 went well beyond simple "competency" questions . Rather, it included many questions about the substantive testimony to be given by Victim 1 and the circumstances of the crimes with which Appellant was charged. Given these attendant facts, Appellant's presence could well have been a significant aid to his attorney in formulating additional questions, as well as additional lines of questioning. Thus, it was an error of law for the district court to deny Appellant the right to be present at the competency/taint hearing under the circumstances of this case. For this reason his conviction is reversed because there is no viable basis for a determination that this error was harmless beyond a reasonable doubt.

Because the Court determined that reversible error occurred when the district court excluded Appellant from the competency hearing, which was deemed to be a critical stage of the trial proceedings, it did not substantively deal with the soundness of the district court's conclusion that Victim 1 was competent to testify. However it was noted that a district court is duty bound to conduct a thorough hearing once the child's competency is sufficiently called into question by either party and that it was an oversight by the parties and by the trial court in this action to have that hearing sandwiched into a 45-minute time span while the jury was at lunch. Such timing suggests two things: (1) that the parties were remiss in aiding the district court in recognizing the importance and significance of the issue and the necessity for conducting a meaningful hearing into the competency/taint matters; and (2) that the timing of the hearing did not permit adequate flexibility for a more comprehensive hearing, in light of the taint and competency flaws that became evident at (and before) the limited hearing that was conducted. The appropriate time for such a hearing would have been before jury selection, in a time slot that allowed adequate time for a complete exploration of the issues brought to the fore by the defense counsel, and in a working space that allowed for Victim 1's comfort and Appellant's right to be present . This conclusion is buttressed by Wyo. Stat. § 7-11-408 (2009). That statute allows for videotape depositions in child sexual assault/abuse cases, where circumstances warrant. The defendant is allowed to be present at such depositions and must be able to exercise the right of confrontation at those proceedings. The expectation is that additional proceedings would continue in this case upon remand, and one of the principal orders of business would be a comprehensive consideration of the question of Victim 1's competence to be a witness against Appellant, including whether or not his testimony was tainted by the many persons who talked with him about the case during the time following the incidents that brought Appellant's alleged conduct to light.

Counts IV and V of the verdict form do pose a bit of a problem which demands closer attention in any additional proceedings. In Counts IV and V, Appellant is charged with causing each of the victims to engage in explicit sexual conduct. The instructions defined "explicit sexual conduct" thus: "'Explicit sexual conduct' means actual or simulated sexual intercourse, including genital-genital, oral-genital, anal-genital or oral-anal, contact between persons of the same or opposite sex, bestiality, masturbation, sadistic or masochistic abuse or lascivious exhibition of the genitals or pubic area of any person." Notwithstanding, the instruction at issue here is no mere "definitional instruction..." the evidence could well support a finding of guilt on any one of several of the acts included within the boundaries of the definition set out above. It is impossible to tell which jurors found which act or acts to have constituted the violation of the statute. In any further proceedings more care should be taken in crafting any such instructions.

The judgment and sentence of the district court is reversed because Appellant was denied his right to be present at the competency/taint hearing. This matter is remanded to the district court for further proceedings consistent with this opinion.

J. Hill delivered the opinion for the court.

J. Burke dissented. Appellant has not established that he had the right, constitutional or otherwise, to be present at the hearing. In addition, there is a lack of meaningful guidance for future cases. If the decision to exclude is dependent on the circumstances, this Court should provide clear guidance to trial courts for deciding when exclusion is permissible. If exclusion is never permissible, the opinion should state so unequivocally. The district judge in this case properly balanced the important factors. It was aware of the young age of the child, the serious nature of allegations against the defendant, and the risk that the child would be traumatized if confronted by the defendant. It had the opportunity to observe the child and the defendant prior to ruling on the State's request to exclude the defendant. Based upon the information provided, the district court concluded that the defendant should be excluded from the hearing. There is no error in that decision.

The district court's determination that the child victim was competent to testify should also be affirmed. A district court's determination of competency will not be disturbed unless clearly erroneous. In evaluating whether that decision was clearly erroneous, an appellate court may review the entire record, including the trial testimony. A review of the entire record, including the child's trial testimony, shows that the district court's competency determination was not clearly erroneous.

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