McGill v. State

357 P.3d 1140

2015 WY 132

Jason Bradley McGILL, Appellant (Defendant)

v.The STATE of Wyoming, Appellee (Plaintiff).

No. S–15–0033.

Supreme Court of Wyoming.

Sept. 28, 2015.

Representing Appellant: Lisa K. Finkey, Gillette, Wyoming.

Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Jenny L. Craig, Senior Assistant Attorney General; John A. Brodie, Assistant Attorney General. Argument by Mr. Brodie.

Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.

Opinion

FOX, Justice.

[¶ 1] Jason Bradley McGill was convicted of sexual abuse of a minor in the first degree in violation of Wyo. Stat. Ann. § 6–2–314(a)(i)(c). Mr. McGill argues that the district court abused its discretion when it denied his motions for a mistrial based on improper vouching testimony by one of the State's witnesses and on introduction of uncharged misconduct evidence without prior notice to the defendant. Mr. McGill also asserts that the prosecutor committed misconduct in her rebuttal closing argument. Together, Mr. McGill alleges that these amount to cumulative error which requires reversal of his conviction. We affirm.

ISSUES

[¶ 2] 1. Did the district court abuse its discretion when it denied Mr. McGill's motion for a mistrial based on vouching testimony of a State's witness?

2. Did the district court abuse its discretion when it denied Mr. McGill's motion for a mistrial based on testimony of a State's witness that introduced uncharged misconduct evidence?

3. Did the prosecutor's statement in rebuttal to defense counsel's closing argument constitute plain error?

4. Did cumulative error occur warranting the reversal of Mr. McGill's conviction?

FACTS

[¶ 3] Mr. McGill spent Thanksgiving Day 2013 with his three children from his second marriage; his live-in girlfriend, Jennifer Neumeyer; and her three children from previous relationships. Mr. McGill and Ms. Neumeyer began arguing early in the day. The argument escalated when Mr. McGill's ex-wife, Cristi McGill, called during Thanksgiving dinner and Mr. McGill allowed his children to speak with their mother. Later that evening, after the children were in bed, Mr. McGill and Ms. Neumeyer also retired. Their argument continued and Mr. McGill left their bedroom. Ms. Neumeyer followed him a few minutes later. While walking down the hall, Ms. Neumeyer noticed that the bedroom door of Mr. McGill's nine-year-old daughter, HM, was open. Ms. Neumeyer later reported to authorities that when she looked in, she witnessed Mr. McGill performing oral sex on his daughter while she lay in bed.

[¶ 4] Ms. Neumeyer did not immediately report the incident to authorities, instead she talked to a few friends about what had occurred. After one of these friends insisted that she report what she had seen, Ms. Neumeyer spoke with a case worker from the Department of Family Services (DFS) in Sheridan, Wyoming, and a Sheridan county sheriff's deputy. Mr. McGill was arrested a few days after Ms. Neumeyer's report to authorities and charged with sexual abuse of a minor in the first degree.

[¶ 5] Ms. Neumeyer's description of the events that took place on Thanksgiving remained consistent until shortly before trial. At that time, she recanted, claiming that she concocted the story because she was jealous of Cristi McGill and wanted her out of Mr. McGill's life. Nevertheless, trial proceeded as scheduled. The State called a number of witnesses, including the victim, Cristi McGill, Ms. Neumeyer, and friends of Ms. Neumeyer in whom she confided after the Thanksgiving incident. The State also called the deputy who performed the investigation, the DFS case worker who worked on the case, and the victim's pediatrician. For the defense, Mr. McGill was the only witness to testify.

[¶ 6] The jury convicted Mr. McGill of sexual abuse of a minor in the first degree in violation of Wyo. Stat. Ann. § 6–2–314(a)(i)(c), and Mr. McGill was sentenced to 25 to 35 years in prison. Mr. McGill timely filed his notice of appeal. Additional relevant facts will be addressed throughout the discussion section.

DISCUSSION

I. Did the district court abuse its discretion when it denied Mr. McGill's motion for a mistrial based on vouching testimony of a State's witness?

[¶ 7] At trial, the State called Ryan Kerns, the sheriff's deputy who investigated the case. During direct examination, the prosecutor asked Deputy Kerns, “Okay. [W]hen that—going back to that first interview, did you—did you know beforehand the extent of what you were getting—what this case might be about?” Deputy Kerns responded, “I didn't expect it to be this—I didn't believe it was going to be as good information-wise as it turned out to be.” Counsel for Mr. McGill requested to approach the bench and moved for a mistrial, arguing that Deputy Kerns' statement constituted “vouching for credibility, vouching for the weight of the evidence.” The district court denied the motion for a mistrial, finding, “[T]he statement, as it came out, was objectionable.... The context in which it came out was not so objectionable that the Court was willing to grant a mistrial[.]” The district court then gave a limiting instruction:

Ladies and gentlemen, as I indicated to you in the opening instructions, there are times throughout a trial where there is an objection that may be made, and the Court—it's solely in the Court's providence to rule on those issues, and you're not to try to conjecture or guess what that is about. And at times the Court may strike certain evidence, and if I strike that evidence you're not to consider it, and I am striking the response of this witness, to that last question, and you're not to consider it. It's not proper to be before you. You're not to consider the response that the witness had to that last question.

[¶ 8] Mr. McGill argues that the district court erred when it denied his motion for a mistrial. We review a district court's denial of a motion for a mistrial for an abuse of discretion. Boucher v. State, 2011 WY 2, ¶ 34, 245 P.3d 342, 358 (Wyo.2011). “An abuse of discretion occurs where the district court could not reasonably have concluded as it did.” Drury v. State, 2008 WY 130, ¶ 8, 194 P.3d 1017, 1019 (Wyo.2008) (citing Thomas v. State, 2006 WY 34, ¶ 10, 131 P.3d 348, 352 (Wyo.2006) ). “It is important to remember that there is a distinction between the role of this Court and the role of the district court in regard to [a motion for a mistrial].” Yellowbear v. State, 2008 WY 4, ¶ 67, 174 P.3d 1270, 1295 (Wyo.2008). In deciding whether to grant a mistrial, the district court is charged with determining whether the conduct was “so prejudicial that justice could not be served by proceeding with trial.” Warner v. State, 897 P.2d 472, 474 (Wyo.1995). On review, we must resolve whether the district court abused its discretion in making its determination, and if the district court did abuse its discretion in denying a motion for a mistrial, whether that denial prejudiced the appellant. Drury, 2008 WY 130, ¶ 8, 194 P.3d at 1019 (“Appellant has the burden of showing that she was prejudiced by the district court's denial of the motion for mistrial.”).

[¶ 9] Mr. McGill characterizes the response of Deputy Kerns as improper vouching for the credibility of witnesses who testified before him (primarily the victim). It is within the exclusive province of the jury to determine the credibility of the witnesses. Sweet v. State, 2010 WY 87, ¶ 28, 234 P.3d 1193, 1205 (Wyo.2010). It is therefore an unacceptable invasion into the jury's domain for a witness to testify concerning the credibility of another witness or to comment on the guilt of the accused. Drury, 2008 WY 130, ¶ 10, 194 P.3d at 1020 (citing Lopez v. State, 2004 WY 103, ¶ 22, 98 P.3d 143, 150 (Wyo.2004) ).

[¶ 10] We find that Deputy Kerns' response does not constitute vouching testimony. Deputy Kerns did not state that the testimony of any witness was or was not truthful. See Whiteplume v. State, 841 P.2d 1332, 1337–41 (Wyo.1992) (deputy's testimony that he listened to the victim's story and made a determination that she had been raped constituted improper vouching for the credibility of the victim). Moreover, there was no indication in Deputy Kerns' statement that Mr. McGill was guilty. See Ogden v. State, 2001 WY 109, ¶ 23, 34 P.3d 271, 276 (Wyo.2001) (“An interpretation of the evidence by a witness, even though that interpretation may be important in establishing an element of the crime and thus leading to the inference of guilt, is not in the same category as an actual conclusional statement on the guilt or innocence of the accused party.” (quoting Saldana v. State, 846 P.2d 604, 616 (Wyo.1993) )). However, Mr. McGill also argues that Deputy Kerns' response impermissibly offered an opinion on the quality of the case. We agree that Deputy Kerns' statement does fall within the larger ambit of W.R.E. 701,¹ which states:

If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.

While we accept that Deputy Kerns' statement was rationally based on his perception of the case, it was not helpful to a clear understanding of his testimony or the determination of a fact at issue. As the First Circuit recognized:

Lay opinion testimony will not be helpful to the jury when the jury can readily draw the necessary inferences and conclusions without the aid of the opinion. The nub of this helpfulness requirement is to exclude testimony where the witness is no better suited than the jury to make the judgment at issue, providing assurance against the admission of opinions which would merely tell the jury what result to reach.

United States v. Diaz–Arias, 717 F.3d 1, 12 (1st Cir.2013) (internal quotations and citations omitted). Deputy Kerns' opinion that ...