Proffit v. State, S-07-0257.

193 P.3d 228

2008 WY 114

Kent Alan PROFFIT, Sr., Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. S-07-0257.

Supreme Court of Wyoming.

September 30, 2008.

Representing Appellant: Diane M. Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel. Argument by Ms. Kerin.

Representing Appellee: Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Graham M. Smith, Assistant Attorney General. Argument by Mr. Smith.

Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.

VOIGT, Chief Justice.

[¶ 1] The appellant raises five issues in the appeal of his conviction on eight counts of third-degree sexual assault.¹ Finding numerous prejudicial errors in the proceedings below, we reverse and remand for a new trial.

ISSUES

[¶ 2] 1. Did plain error occur when a State witness testified that the appellant refused to take a polygraph test and terminated the interview by asking for an attorney?

2. Did plain error occur when the prosecutor committed misconduct by:

a. Cross-examining the appellant by asking whether other witnesses were lying?

b. Cross-examining the appellant by improper use of prior convictions, in violation of W.R.E. 609?

c. Shifting the burden of proof to the appellant during rebuttal closing argument?

3. Did the appellant's trial attorney provide ineffective assistance of counsel by:

a. Failing to make appropriate objections?

b. Inviting prejudicial error by inquiring into the investigators' opinions as to the appellants' credibility?

c. Failing to demand notice of uncharged misconduct evidence, and failing to object to the introduction of uncharged misconduct evidence?

4. Did plain error occur in the district court's response to a jury question?

5. Is the record on appeal incomplete?

FACTS

[¶ 3] On July 2, 2005, a teenaged boy whom we will identify as B.C. reported to the Campbell County Sheriff's Office that he had repeatedly been sexually abused by the appellant, his step-father. During subsequent questioning by law enforcement officers, the appellant declined an offer to take a polygraph test and terminated the questioning by invoking his right to counsel. The appellant later was arrested and charged with eight counts of third-degree sexual assault. He was released on bond pending trial.

[¶ 4] B.C. was murdered about three weeks before the scheduled trial. Eventually the appellant and several of his acquaintances—Jacob Martinez, Christopher Hicks, and Michael Seiser—were convicted of various homicide crimes as a result of B.C.'s murder. Jacob Martinez admitted shooting B.C. in the head while B.C. slept. The appellant was convicted of conspiring to commit first-degree murder. His conviction for that crime was affirmed by this Court in Proffit v. State, 2008 WY 102, 191 P.3d 963 (Wyo. 2008).²

[¶ 5] The case now before this Court was tried in Hot Springs County, beginning on June 25, 2007, after the district court granted the appellant's motion for a change of venue. The jury found the appellant guilty of all eight counts. The district court sentenced the appellant to consecutive terms of imprisonment for ten to fifteen years on each count, and later denied a motion for a new trial. This appeal followed.

DISCUSSION

Did plain error occur when a State witness testified that the appellant refused to take a polygraph test and terminated the interview by asking for an attorney?

[¶ 6] Deputy Sheriff Tony Seeman interviewed the appellant after he was arrested. At trial, the following series of questions and answers occurred during the State's direct examination of Deputy Seeman:

Q. Did you revisit the subject of the sexual assault allegations?

A. Yes, I did.

Q. How did those come up?

A. We just continued. We continued with the interview. Like I said, Kent Proffit, Sr. continued to deny any of this type of activity. I asked Mr. Proffit if he would be willing to take a polygraph test, a lie detector test to broach the subject of the sexual assaults. He thought about that only momentarily and then stated that he would not take a polygraph test.

Q. Did he provide an explanation for you as to why he was reluctant to [do] that?

A. I asked him the question of if he did take a polygraph test what he thought it would reveal or what he thought it would say. At that time he told me that he was scared of a polygraph test, that it may become confused based on Kent Proffit, Sr. being molested as a child by a neighbor.

He was concerned that the polygraph exam may confuse some of his homosexual behavior as he was molested as a child with any questions that he would be asked about the inappropriate behavior with [B.C.].

Q. After learning that, what happened?

A. After learning that — it was shortly after that that Kent Proffit, Sr. looked directly at myself and directly at Sergeant Leet and asked if we actually believed that he had done these things.

Q. Do you recall specifically what he said to you?

A. I may have quoted it in my report. I can't remember if I put it in quotations or not. Actually, that part is in Sergeant Leet's report.

Q. Okay. Do you recall?

A. I have that here also.

Q. Do you recall what it was that Mr. Proffit asked? Let me back up a step. Did he ask one question to the two of you collectively?

A. No. He asked us each separately if we believed that this happened.

Q. Okay. Did he ask you first or second?

A. I can't remember. To be honest, I can't remember if I was first or second. He asked both of us though.

Q. When he asked you that question, what did you tell him?

A. I told him that, yes, I believe he had possibly had done this thing.

Q. Then what happened?

A. He went — both Sergeant Leet and myself both stated that we believed that he had done this — that he decided to terminate the interview. He said that he wanted an attorney so we stopped the interview and Kent Proffit, Sr. was placed under arrest by Sergeant Leet for breach of peace.[³]

[¶ 7] Because there was no trial objection to this testimony, we must review it for plain error. To prove plain error, an appellant must show (1) that the record is clear as to the incident alleged as error; (2) that a clear and unequivocal rule of law was violated in a clear and obvious, not merely arguable, way; and (3) that the error adversely affected a substantial right resulting in material prejudice to him. Gabbert v. State, 2006 WY 108, ¶ 11, 141 P.3d 690, 695 (Wyo.2006). There is no dispute that the first element has been shown.

[¶ 8] There also can be little dispute that Wyoming adheres to the rule that it is error for the State to introduce evidence that a defendant has refused to take a polygraph or "lie detector" test. Schmunk v. State, 714 P.2d 724, 732-33 (Wyo.1986). The rationale for that rule has been stated as follows:

"`The impact upon the minds of the jurors of a refusal to submit to something which they might well assume would effectively determine guilt or innocence, under these conditions, might well be more devastating than a disclosure of the results of such test * * *.'"

Id. (quoting Mills v. People, 139 Colo. 397, 339 P.2d 998, 999 (1959)). Beyond that, we have characterized the introduction of such evidence as "overzealous prosecution":

"All too frequently this court is compelled to reverse judgments of guilt in important criminal cases because of overzealous prosecution. It is the duty of prosecuting officers to guard against the introduction of incompetent evidence. Overprosecution of an accused should not be permitted by the trial court. In the instant case the district attorney insisted at great length upon introduction into evidence of testimony [refusal to take a lie detector test] which is uniformly held to be incompetent, in an unbroken line of authorities throughout the nation."

Id. (quoting Mills, 339 P.2d at 999-1000). The constitutional underpinning for this rule is that it is fundamentally unfair to assure a suspect that he has a right to remain silent, and then to use his exercise of that right against him. State v. Gutierrez, 142 N.M. 1, 162 P.3d 156, 162 (2007).

[¶ 9] In its Brief, the State contends that this "brief reference" to the polygraph was nothing more than a "logical, narrative transition offered to give context to Appellant's decision to end his interview with the deputies. . . ." That, however, is not the full context in which this testimony must be evaluated. The broader context is the multitude of errors that will be discussed in this opinion. But even the more narrow context— that of the interrogation, itself—is troubling because it includes not only this improper discussion, which was much more than a "brief reference," but it also includes improper declarations as to the officers' opinions that the appellant was guilty, plus comment upon the appellant's exercise of his right to counsel. Furthermore, evidence that the appellant was molested as a child could have suggested to jurors that he, too, became a molester. The prejudicial effect of this exchange was exacerbated during Deputy Seeman's cross-examination when, in response to a question about how the "time lines" of the case were established, he responded as follows:

Q. What did you decide needed to be done?

A. We decided that we needed to just give the best approximations as could be given by [B.C.] who was the one person who could give us the most information. The information that we would have liked to get from another person would have been Kent Proffit, Sr. who was no longer available. So we just had to go with the best approximations that we had.

This statement was clearly another comment upon the appellant's exercise of his right to silence, and was not invited by defense counsel because it was not necessary information for answering the question.

[¶ 10] Deputy Seeman said enough about what the appellant would not say to render his testimony an improper comment upon the...