Summary 2011 WY 67

Summary of Decision April 18, 2011


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Case Name: State v. Gruwell

Citation: 2011 WY 67

Docket Number: S-10-0168

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461989

Appeal from the District Court of Campbell County, Honorable Dan R. Price, II, Judge

Representing Appellant (Defendant): Tara Nethercott and Gay Woodhouse, Woodhouse Roden, Cheyenne, Wyoming.

Rpresenting Appellee (Plaintiff): Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Jessica Y. Frint, Student Director, Prosecution Assistance Program; Samuel T. Hucke, Student Intern, Prosecution Assistance Program.

Date of Decision: April 18, 2011

Facts: Appellant challenges his conviction on one count of sexual abuse of a minor in the third degree, in violation of Wyo. Stat. 6-2-316(a)(iv) (2009). He contends the district court erred in excluding the testimony of one proposed expert witness and limiting the testimony of another expert witness. He also argues that the district court erred in determining that the child victim was competent to testify at trial.

Issues: Whether the district court abused its discretion in excluding one Appellant’s expert witnesses thereby denying him his right to present a defense and his right to compulsory process. Whether it was clearly erroneous, based on the record of the competency hearing, for the district court to determine that the five year old victim was competent to testify. Whether the district court abused its discretion by limiting the scope of another of Appellant’s expert witnesses’ testimony to only the general characteristics of sex offenders and the types of behaviors of the perpetrators who commit these types of alleged crimes.

Holdings: A defendant’s invocation of the right to present witnesses cannot automatically and invariably outweigh countervailing public interests. The factors to be weighed in the balance include, but are not limited to, the integrity of the adversary process, which depends both on the presentation of reliable evidence and the rejection of unreliable evidence, the interest in the fair and efficient administration of justice, and the potential prejudice to the truth-determining function of the trial process. In the present case, the Appellant failed to meet the deadline for disclosure of witnesses set out in the Case Management Order. In addition, the district court excluded the testimony because Appellant’s witness designation was “unnecessarily vague” and because admitting the testimony “would be prejudicial to the opposing party.” Appellant identified the witness less than three full working days before trial and the proposed witness was an expert witness, which raises concerns about the ability of the adversary process to test the reliability and credibility of the proposed testimony. If the testimony was to be adequately “tested,” so as to facilitate the presentation of reliable evidence, the State must have been provided an opportunity to investigate the witness’ qualifications, review the scientific basis for the proposed testimony, and locate an expert witness with the requisite background who was available to travel for the scheduled trial if the State wished to present rebuttal testimony. Given such short notice by Appellant, however, the State could not have assembled an adequate response to the testimony prior to trial. The late notice was prejudicial to the State. The principle that undergirds the defendant’s right to present exculpatory evidence is also the source of essential limitations on the right. The adversary process could not function effectively without adherence to rules of procedure that govern the orderly presentation of facts and arguments to provide each party with a fair opportunity to assemble and submit evidence to contradict or explain the opponent’s case.

It is also important to note that the district court, in its Case Management Order, stated that the defense could be afforded relief from the witness disclosure requirements if the defense filed a motion stating good cause for relief at least five working days before the pretrial conference. Appellant, however, never filed such a motion showing good cause and never provided any explanation for his failure to timely identify the witness. Thus, Appellant’s right to compulsory process, which depended entirely on his own initiative, was not violated by the district court’s refusal to allow the witness to testify. The district court did not abuse its discretion in denying Appellant’s motion to amend his pretrial memorandum.

With regard to children, intelligence, not age, is the guiding criteria in determining the competency of the witness. A five-part test is used to determine the competency of a child witness. The witness must demonstrate the following: (1) an understanding of the obligation to speak the truth on the witness stand; (2) the mental capacity at the time of the occurrence concerning which he is to testify, to receive an accurate impression of it; (3) a memory sufficient to retain an independent recollection of the occurrence; (4) the capacity to express in words his memory of the occurrence; and (5) the capacity to understand simple questions about it.

The test does not require the witness at a competency hearing to answer questions about the specific events at issue in a case. Rather, by requiring that the witness have a “memory sufficient” to retain an independent recollection of the occurrence and the “capacity” to relate a memory of the occurrence, the test focuses on the mental abilities of the witness rather than the witness’s recollection of specific events. Appellant has not presented any authority which indicates that a child witness must be asked about specific events at a competency hearing, and there is good reason for imposing such a requirement. As the district court determined in this case, questions relating to the events at issue have the potential to cause unnecessary trauma to the child witness and are not warranted when the witness demonstrates the requisite capacity to receive, remember, and narrate her experience. Such questions, however, are not precluded as a matter of law. Ultimately, in determining whether a child witness is competent to testify, the decision to ask the child questions regarding the specific events at issue in the case is within the broad discretion of the trial court.

In this case, the district court did not abuse its discretion in determining that the victim was competent to testify. She was asked questions about her knowledge, memory, and her awareness of the obligation to tell the truth. The court found that she had the capacity to express in words the things that she can remember and she clearly has the capacity to understand simple questions when asked. It is also worth noting that at trial, she was able to recall and relate the events leading up to and after the incident, as well as details of the incident itself.

The district court entered an Order Limiting Scope of Expert Testimony relating to another of Appellant’s expert witnesses. The Order provided: 1. The court cannot order any testimony suppressed from the State’s rebuttal case because the defense may open the door to such testimony; 2. Under WRE 404 the defense may offer any character evidence they feel is appropriate, but the State is allowed to rebut any evidence proffered; 3. The defense expert may testify as to “general characteristics of sex offenders and the types of behaviors of the perpetrators who commit these types of alleged crimes;” 4. Under WRE 702, the defense expert is allowed to give his opinion as long as such opinion does not go to the ultimate fact in this case; and 5. The defense expert may not give opinion testimony as to the defendant’s guilt. Appellant contends the district court implicitly determined that the proposed testimony relating behaviors of sex offenders to Appellant was character evidence. Appellant contends that this determination was error and negatively impacted Appellant’s ability to defend against the charge. As we understand Appellant’s position, the classification of the proposed testimony as character evidence potentially opened the door for the State to present rebuttal evidence under W.R.E. 405(a) that Appellant wanted to keep from the jury. Stated in procedural terms, if Appellant introduced the proposed testimony, Appellant was concerned that the court would permit the State to introduce evidence regarding other incidents of Appellant’s improper sexual conduct with minors. The expert presented testimony regarding the general characteristics of sex offenders but did not relate those characteristics to Appellant. Appellant contends that the witness would also have related those characteristics to Appellant but for the district court’s erroneous determination that it was character evidence.

It cannot be discerned from the record the specific testimony that Appellant sought to elicit from the witness. His report, if it existed, is not in the record. It seems undisputed, however, that he would have testified, at a minimum, that Appellant does not possess the personality traits of a typical sex offender. It is also undisputed that Appellant intended to offer the testimony for the purpose of establishing that Appellant could not have committed the charged offense. Such testimony is unquestionably character evidence. There was no abuse of discretion in the district court’s determination.

Affirmed.

J. Burke delivered the opinion for the court.