Woods v. State

401 P.3d 962

Clinton Ray WOODS, Appellant (Defendant),

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

S-17-0048.

Supreme Court of Wyoming.

September 20, 2017

Representing Appellant: Timothy C. Kingston of the Law Office of Tim Kingston, LLC, Cheyenne, Wyoming.

Representing Appellee: Peter K. Michael, Attorney General; David L. Delicath, Deputy Attorney General; Christyne Martens, Senior Assistant Attorney General; Caitlin F. Harper, Assistant Attorney General. Argument by Ms. Harper.

Before BURKE, C.J., and HILL, FOX, KAUTZ, JJ., and KRICKEN, D.J.

KRICKEN, District Judge.

[¶1] Clinton Ray Woods (Woods) was convicted by a jury of three counts of Sexual Abuse of a Minor in the Second Degree , in violation of Wyo. Stat. Ann. § 6-2-315(a)(i) (LexisNexis 2013), and one count of Sexual Abuse of a Minor in the Third Degree , in violation of Wyo. Stat. Ann. § 6-2-316(a)(i), for his sexual abuse of the fourteen-year-old daughter of his girlfriend. He now appeals, claiming that his trial counsel was ineffective in multiple ways and further asserting that the district court committed reversible error. We affirm.

ISSUES

[¶2] In his appeal, Woods presents the following issues:

1. Did the Appellant's attorney provide the Appellant ineffective assistance of counsel?

2. Was it deficient performance for the Appellant's attorney to play a forensic interview video of the alleged victim to the jury?

3. Was it deficient performance for the Appellant's attorney not to object to numerous instances of hearsay?

4. Was it deficient performance for the Appellant's attorney not to ask for a limiting expert witness instruction?

5. Was it deficient performance for the Appellant's attorney not to object to admission of the testimony of the state's expert witness?

6. Did the Appellant's attorney's numerous instances of deficient performance prejudice the Appellant?

7. Did the trial court commit reversible error when it failed in its gate keeping function in allowing the state's expert to testify without determining if he should be allowed to testify?

8. Did the trial court commit reversible error when it did not give a limiting expert witness instruction?

FACTS

[¶3] Although originally charged with additional felony counts, on July 12, 2016, Woods proceeded to a jury trial on three counts of Sexual Abuse of a Minor in the Second Degree , in violation of Wyo. Stat. Ann. § 6-2-315(a)(i), and one count of Sexual Abuse of a Minor in the Third Degree , in violation of Wyo. Stat. Ann. § 6-2-316(a)(i). The allegations underlying the charges were that Woods had engaged in sexual activity on several occasions with D.O., the fourteen-year-old daughter of his girlfriend, Angel King, some of which was joined in and condoned by King.

[¶4] Ultimately, on November 6, 2014, law enforcement was dispatched to King's home on the report of a domestic disturbance. King told the officer that she had gotten into a fight with Woods and punched him, stating "[h]e's not going to do to my daughter what's been done to me." D.O. denied any improper conduct on Woods' part when the officer so inquired. However, after the officer left, D.O. told her brother that Woods had been sexually abusing her. While at her father's home the following weekend, D.O. also told her father of the abuse. D.O.'s father took D.O. to an attorney's office in Cheyenne, to whom he and D.O. disclosed the sexual abuse. The attorney contacted law enforcement, who initiated the investigation that culminated in the criminal charges and jury trial.

[¶5] Woods' defense at trial—that he had not committed any of the accused conduct—was based on the lack of corroborating physical evidence and on D.O.'s inconsistent versions of the alleged events. Because the only evidence of the alleged sexual abuse was D.O.'s story, Woods' trial strategy was to challenge her credibility. At trial, the State of Wyoming and defense counsel agreed that the jury should view the video of a pretrial forensic interview conducted with D.O. The State sought to introduce the video to demonstrate D.O.'s prior consistent statements, while Woods believed the video demonstrated D.O.'s prior inconsistent statements that would result in the jury concluding she had lied. The district court expressed its concerns, engaging in the following colloquy with defense counsel:

THE COURT: The Court spent the lunch hour thinking about the video issue. And the last time something like this happened, it resulted in a conviction being reversed, and the matter being remanded to me for a hearing on whether the playing of that video in a child sexual abuse case, forensic interview, was ineffective assistance of counsel. And the Court ultimately determined that it was in that case.

I understand in this case the parties have stipulated to the use of the videos. From the State's standpoint, my understanding would be that the State would contend that the video is admissible under Rule 801 as a prior consistent statement.

The defendant wants portions of the video played to argue that it is a prior inconsistent statement; is that correct?

[DEFENSE COUNSEL]: It is from my point of view, Your Honor. And just to clarify, there are things that were part of the video that referred to the Court's prior ruling on BDSM activities. And there [is] also a part of the video that discusses photographs which he was charged with, which he's now not charged with. And those portions of the video have been redacted.

I think it is relevant to my case. I had talked to [the prosecuting attorney] about playing the video in another ma[tt]er. And then last night he decided that he wanted it, too. So that's how we have come to this stipulation.

THE COURT: All right. I think it is important to make a record of what your strategy is and what your tactics are, [defense counsel], in playing the video. Have you had a chance to discuss the issue with your client?

[DEFENSE COUNSEL]: Yes. I discussed this issue with my client last night at length and again over the noon hour. And because most specifically as to her testimony and prior statements about the anal rape, the most important part for me. But I think as the jury views the video, they're going to be able to judge her credibility here in court better, given that that interview was given shortly after the incident, and now how she remembers things and how inconsistent the testimony is across the board.

So my client consents to it. And it is my belief, based on my experience as a trial attorney, that this is the most prudent way to proceed.

THE COURT: All right. Very well. But you have visited with Mr. Woods about this issue?

[DEFENSE COUNSEL]: Yes.

THE COURT: I guess the concern that the Court has is that essentially by playing that video again, you're allowing the alleged victim in this case a second opportunity to testify without the benefit of any cross-examination.

[DEFENSE COUNSEL]: Correct.

THE COURT: All right. But it is a deliberate strategy decision on your part?

[DEFENSE COUNSEL]: Absolutely.

THE COURT: All right.

The district court permitted the jury to view the forensic interview.

[¶6] Additionally, the State offered the testimony of Dr. Fred Lindberg, a psychologist who specialized in the area of child sexual abuse. Woods did not object to Dr. Lindberg's testimony or request a pretrial Daubert hearing, nor did the district court conduct one sua sponte . At trial, Dr. Lindberg testified on reporting patterns in juvenile victims of sexual abuse and general characteristics of victims of sexual abuse. At the conclusion of the trial, the district court inquired as to whether counsel wished to have the jury instructed concerning expert witness testimony; both declined and the court omitted the instruction.

[¶7] The jury subsequently convicted Woods of all four offenses for which he was tried. This appeal followed. Further facts will be discussed herein as necessary for a resolution of the issues presented.

ANALYSIS

[¶8] Woods raises multiple issues on appeal that can be categorized as claims of ineffective assistance of trial counsel and claims of reversible error by the trial court.

Ineffective Assistance of Trial Counsel

[¶9] Woods claims that trial counsel was deficient in several respects. This Court will address each assertion in turn, as well as any cumulative impact of counsel's alleged deficiencies.

Standard of Review: Ineffective Assistance of Trial Counsel

[¶10] Issues involving ineffective assistance of counsel involve mixed questions of law and fact, which this Court reviews de novo . Jones v. State , 2017 WY 44, ¶ 15, 393 P.3d 1257, 1261–62 (Wyo. 2017). In addressing the burden upon a defendant claiming ineffective assistance of counsel, this Court has noted:

To establish that counsel was ineffective, [a defendant] must show that under the circumstances at the time of a challenged act or omission, his attorney's performance fell below that of a reasonably competent lawyer, and that it is reasonably probable that absent the deficient performance the outcome of the proceeding would have been more favorable to him. Griggs v. State , 2016 WY 16, ¶ 36, 367 P.3d 1108, 1124 (Wyo. 2016). This Court does not evaluate counsel in hindsight, but from the perspective available at the time. Mraz v. State , 2016 WY 85, ¶ 44, 378 P.3d 280, 291 (Wyo. 2016).

Jones , ¶ 14, 393 P.3d at 1261.

The Forensic Interview

[¶11] Woods first asserts error with respect to the publication to the jury of the forensic interview conducted with D.O. Once D.O. informed law enforcement of the sexual conduct she had engaged in with Woods, she was taken to Safe Harbor, a children's justice center that conducts forensic interviews of children who are alleged victims of serious physical and sexual abuse, for a pretrial forensic interview, where she gave a videotaped statement in response to questions asked of her. Originally, neither the State nor defense counsel intended to play the taped video interview for the jury. However, at trial, both subsequently agreed that it was appropriate to play the...