Vigil v. State

98 P.3d 172

2004 WY 110

George VIGIL, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 03-22.

Supreme Court of Wyoming.

September 24, 2004.

Representing Appellant: Kimberly A. Corey of Plains Law Offices, Cheyenne, Wyoming; Donna Domonkos, Appellate Counsel, State Public Defender's Office, Cheyenne, Wyoming. Argument by Ms. Corey.

Representing Appellee: Patrick J. Crank, Wyoming Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Theodore E. Lauer, Director, and Dana Lent, Student Intern, of the Prosecution Assistance Program. Argument by Ms. Lent.

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

GOLDEN, Justice.

[¶ 1] George Vigil (Vigil) appeals from a judgment and sentence resulting from his conviction of aggravated assault and battery in violation of Wyo. Stat. Ann. § 6-2-502(a)(iii).¹ On appeal, Vigil contends that his constitutional right to be represented by counsel at every critical stage of a criminal proceeding was violated when his request for a court appointed attorney was denied at his preliminary hearing. He also contends that certain hearsay evidence was admitted at his trial in violation of his constitutional right to confrontation. Finding that Vigil's right to confrontation was violated, we reverse and remand for a new trial.

ISSUES

[¶ 2] Vigil presents the following issues:

I. Was Appellant denied his right to counsel during the preliminary hearing in violation of the Sixth and Fourteenth Amendments of the United States Constitution and Art. 1 § 10 of the Wyoming Constitution?

A. Did the Justice of the Peace abuse his discretion by denying Appellant his right to counsel at the Preliminary Hearing in violation of Appellant's Constitutional Rights?

B. Was Appellant's abrupt waiver of Counsel knowingly, intelligently and voluntarily waived?

II. Did the trial court abuse its discretion by allowing hearsay statements to be made violation [sic] Appellant's confrontation clause rights under the Wyoming Constitution and the United States Constitution?

A. Did the district court abuse its discretion by allowing hearsay statements to be made at trial that were not against codefendant's pecuniary interest?

B. Did the trial court abuse its discretion by allowing codefendant's statements to be made by an Officer when the indicia is unreliable thereby violating Appellant's right to confront the witnesses against him?

The State restructures the issues slightly:

I. Did appellant knowingly and voluntarily waive his right to the assistance of counsel at the preliminary hearing and, in the alternative, forfeit that right by his conduct when he appeared without retained counsel?

II. Did the district court properly admit into evidence the statements of unavailable witness Jay Newton under Wyoming Rule of Evidence 804(b)(3)?

FACTS

[¶ 3] The following facts pertinent to this appeal were adduced at trial. Vigil, Jay Newton (Newton), and a woman (hereinafter referred to as Victim) spent the afternoon and evening of April 30, 2002, drinking and smoking marijuana in an auto body shop where Vigil was working. Ultimately, Newton and Victim engaged in sexual relations. Victim claims she only engaged in sexual relations with Newton because Vigil held a machete type knife to her throat and threatened to kill her if she refused. Newton's defense from the beginning was that he only entered the back seat with Victim and at least initially only pretended to have sex with her to protect Victim from Vigil.

[¶ 4] At trial, Victim testified that the alleged assault began when Vigil slapped her on the buttock with his belt, at which point she turned around and slapped him. The slap made Vigil angry and, according to Victim, Vigil then threw her against the back of a car being worked on in the shop and held a machete type knife to her throat, threatening to cut her up into small pieces and burn the pieces in the stove² so they would never be found. Vigil then allegedly cut a small chunk of Victim's hair from her head. Victim testified that Vigil ordered her to have sex with Newton and that Vigil would be next.

[¶ 5] Victim testified that after Vigil threatened her with the machete type knife, Victim and Newton then entered the back seat of the car. Victim and Newton proceeded to engage in sexual activities in the back seat of the car. Victim testified that Vigil looked into the car a couple of times. Victim and Newton emerged once to smoke a cigarette, at which point Victim testified that Vigil was sleeping on a couch in the shop. Victim and Newton reentered the car and continued their sexual activities. When they emerged in the early morning hours of May 1, 2002, Vigil was still asleep on the couch. They woke Vigil up, and Victim asked him to drive her to her residence. Vigil complied, and the encounter ended.

[¶ 6] Sometime around mid-morning on May 1, 2002, Victim telephoned a friend and claimed she had been raped. Ultimately law enforcement was contacted, and Sheriff's Deputy Valerie Martin contacted Victim. Deputy Martin convinced Victim to go to the hospital where a sexual assault examination was conducted. At Vigil's trial, Deputy Martin testified that, when she first encountered Victim on May 1, Victim had multiple small bruises and abrasions on her body, although some of these could be attributed to a bicycle accident Victim was involved in earlier on April 30th. Deputy Martin observed a mark on Victim's lower back that Deputy Martin described as looking like a "rub area." Deputy Martin also testified that she noticed a small area of hair was missing from Victim's head. No bruising was found on Victim's buttocks during the physical exam at the hospital.

[¶ 7] Deputy Martin testified that she interviewed Victim after the physical examination. At that time, Victim identified Vigil and Newton as her assailants from respective photo lineups and both were subsequently arrested. Victim related to Deputy Martin that she had been sexually assaulted. Victim stated that Vigil had held a machete type knife to her throat and threatened to kill her if she resisted, and then Vigil cut a chunk of hair from her head.

[¶ 8] Deputy Martin, assisted by other law enforcement officers, executed a search warrant on the auto body shop. No machete type knife was discovered during the search, although Vigil admitted in an interview with a police officer that he owned such a knife and kept it at the shop. A few hairs were found on the trunk of the car where the alleged assault occurred. These hairs were collected as evidence, but testing on them proved inconclusive.

[¶ 9] At trial, Newton was called by the State as a witness against Vigil. Newton, as part of a plea bargain, had pled guilty and been sentenced regarding the subject events the day prior to Vigil's trial. Newton testified only to a few preliminary issues and then invoked his Fifth Amendment right against self-incrimination. The trial court accepted the invocation and declared Newton unavailable as a witness. The State then called the police officer who initially interviewed Newton upon Newton's arrest. Over defense objection, the officer proceeded to testify as to what Newton said during his interviews with Newton. In the interviews, Newton allegedly admitted to the officer that Vigil held a knife to Victim's throat but was not sure if he held the blade side or the blunt side of the knife to her throat. Newton also allegedly confirmed to the officer that Vigil threatened to cut Victim to pieces and burn the pieces in the stove. According to the police officer, Newton also stated that, when Newton and Victim emerged from the vehicle the first time to smoke a cigarette, Vigil walked over to them and asked if it was his turn yet.

[¶ 10] Vigil testified at trial. Vigil generally agreed with the version of events presented by Victim but denied ever threatening Victim with a knife. Vigil admitted that, because Victim was engaged in an activity of which he did not approve, and he could not get her attention otherwise, he lightly spanked Victim on her buttocks with his belt. Victim then turned around and slapped him, hitting him in the eye. Vigil admitted the slap made him angry and he grabbed Victim and scolded her about hitting him. Vigil denied ever having a knife in his hand or threatening her to make her submit to sexual activities with Newton or himself.

[¶ 11] Vigil testified that, after he admonished Victim, basically telling her not to hit him again, he then told her to sit in the back of the car because she was too drunk to stand. Vigil testified that he worked on another car while Victim and Newton were in the back seat of the initial car. Vigil confirmed that he did look into the car on a couple of occasions to see if Newton and Victim were still there. Vigil testified that, as far as he could tell, the sexual activity that occurred between Victim and Newton was consensual. Vigil testified that eventually he fell asleep on a couch in the shop and was awoken by Newton and Victim. He then gave Victim a ride to her residence at her request.

[¶ 12] Vigil was charged with two counts of being an accessory before the fact to the crime of sexual assault and one count of aggravated assault and battery. Ultimately, the jury acquitted Vigil of the accessory before the fact charges related to the alleged sexual assault but found Vigil guilty of aggravated assault and battery. This appeal followed.

STANDARD OF REVIEW

[¶ 13] This Court initially will address Vigil's second issue because we find the issue dispositive of this appeal. Vigil contends that his right to confrontation of witnesses against him was denied when the police officer was allowed to testify at trial as to what Newton said when the officer interviewed Newton. Vigil argues the correct standard of review is whether the trial court abused its discretion in admitting the hearsay testimony into evidence. The...