Appeal from the District Court of Laramie County The Honorable Peter G. Arnold, Judge.
The opinion of the court was delivered by: Hill, Justice.
Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.
Hill, J., delivers the opinion of the Court; Burke, J., filed a dissenting opinion.
[¶1] Appellant, Johnn Thomas Woyak (Woyak), was convicted of three counts of sexual assault in the second degree in violation of Wyo. Stat. Ann. § 6-2-303(a)(v) (LexisNexis 2005)*fn1 and two counts of sexual exploitation of children in violation of Wyo. Stat. Ann § 6-4-303(b)(ii) (LexisNexis 2009).*fn2 Woyak contends that the district court violated his substantive constitutional rights to due process and to the protections of the confrontation clause by excluding him from a competency/taint hearing held to determine the competency of the minor victim who was to be a witness against Woyak. With respect to that same minor victim, Woyak contends that the district court erred by failing to conduct an independent competency hearing and in failing to make a finding as to whether or not that child possessed a memory sufficient to retain an independent recollection of the events which constituted the crimes against him. In addition, Woyak contends that the trial court erred by submitting a verdict form to the jury, over his objection, that was not specific as to the nature of the charges in counts IV and V. We will reverse and remand for further proceedings consistent with this opinion.
[¶2] Woyak raises these issues:
I. Did the district court violate Woyak's constitutional rights to due process and confrontation by excluding him from a competency hearing in violation of Wyo. Stat. Ann. § 7-11-202 and W.R.Cr.P. 43?
II. Did the district court abuse its discretion by failing to conduct an independent competency hearing of a minor child and failing to make a finding supported by competent evidence that the child possessed a memory sufficient to retain an independent recollection of the occurrence as required by Wyoming law?
III. Did the trial court err by submitting a verdict form that was unspecific as to the nature of the charges in Counts [IV] and [V] over the objection of Woyak?
The State rephrases the issues thus:
I. Did Woyak have a constitutional right to be present at the competency/taint hearing that was violated by his absence, and was any error in that regard harmless?
II. Was the district court's determination that the younger [victim] was competent to testify clearly erroneous or an abuse of its sound discretion?
III. Was Woyak prejudiced by any error in the verdict form?
[¶3] The victims in this case are two brothers whose approximate ages were 5 and 6 years at the time the crimes were committed (albeit they were both nearing their next birthdays, i.e., ages 6 and 7). Woyak was approximately 20 years old at the time of the crimes. We will refer to the younger brother as Victim 1 and the older brother as Victim 2. Woyak was an uncle of the two victims. During the months of November and December of 2006, the victims lived in a home with their infant sister, their mother, occasional boyfriends of mother, mother's sister (who was married to Woyak), and Woyak's and his wife's two children. Other relatives were also frequent visitors at the victims' home. Woyak only lived in that house for that discrete two-month period of time and that was the only time he had access to the victims. During that two-month time period, Woyak frequently looked after the victims, as well as his own children, while the other adults went out to the bars and partied. When all residents of the house were at home, the adults frequently congregated in the basement of the home and drank alcoholic beverages and smoked marijuana. Woyak often went upstairs to ―check‖ on the children, during which times he was alone with them. Both victims suffered from behavioral and attention deficit problems and were treated by local service providers. Eventually, Victim 2's problems became more severe and he was sent to another location outside Wyoming for in-patient treatment.
[¶4] Although all the children had some ―acting out‖ problems at various times, the conduct which eventuated in the criminal charges that are the subject of this case first began to come to light in January of 2007, when mother walked in on her two sons as they were engaged in performing fellatio on each other. Mother did not ―report‖ this event, but sent Victim 2 for counseling. During the summer of 2007, the victims' infant sister engaged in odd behavior in front of her mother and one of mother's boyfriends (to whom the infant daughter and the victims referred to as ―daddy‖). When asked what her odd behavior was all about, the infant sister said she was ―having sex.‖
As a result of this incident, the victims' mother, and the individual identified by the victims as ―daddy,‖ questioned the children about what had been going on in the household. During this inquiry, Victim 1 related that Woyak had engaged both he and his brother in several incidents of sexual misconduct during the months of November and/or December of 2006. This information was revealed to law enforcement, as well as treatment personnel, and an investigation was conducted which eventuated in the instant criminal prosecution. It suffices to note here that the acts Woyak was alleged to have committed were despicable and perverted, and the issues do not require us to be more specific than that. Unfortunately, errors that were committed by the prosecution and the district court, before the evidentiary portion of the trial began, mandate that we reverse Woyak's convictions.
Woyak's Right to Be Present at the Taint/Competency Hearing
[¶5] The first issue arises because, on July 15, 2008, Woyak filed a motion for a competency hearing for ―any and all‖ child witnesses who were to testify at trial. On that same date, Woyak filed a motion for a pretrial taint hearing, asserting that the victims' testimony had been tainted by suggestive questioning by the victims' mother, aunt, and possibly others.
[¶6] The trial in this case commenced on October 14, 2008. At that time, it was known to all involved in this process that the principal witness for the State was to be Victim 1. Victim 2 was unable to testify because of his mental/emotional condition. Woyak's pending motions for a taint hearing and a competency hearing with respect to Victim 1 had not yet been addressed prior to the commencement of the trial. After the jury was selected, but before any witnesses had been called to testify, the district court held the taint/competency hearing. The jury was scheduled to return at 2:30 p.m. on that date so that the trial could get underway. The taint/competency matters were set to begin at 1:45 p.m. on that date. The prosecutor asked that the taint/competency hearing be conducted with Woyak not being allowed to be present. The State asserted that Woyak did not have a right to be present and that his presence would create difficulties with respect to Victim 1 testifying. Woyak strenuously objected. The district court noted that Victim 1 was now 7 years of age and further commented:
THE COURT: These events are alleged to have occurred almost two years ago when he was age five. My reaction is that it's kind of ironic that one of these hearings is categorized as a taint hearing.
I am personally worried that if the defendant was present that there is a risk that his mere presence, even though he may not indicate it by any means a desire that this young boy not testify, I'm worried his presence in this relatively small confined area of my office would result in an environment which is inappropriate.
I don't believe that this involves confrontation; in other words, this is not a situation where the state hopes to elicit information which is intended by anybody to result in support for accusations made against the defendant. More importantly, in my mind, the jury is not here. They don't even know that this proceeding is going on.
So because of those conclusions, I don't believe that this is a hearing at which the defendant has the absolute right to be present.
[¶7] Although no authority for keeping Woyak out of the hearing was discussed at the hearing, it is apparent that the prosecutor's request, and the district court's very general statement of the basis upon which the prosecutor's request was granted, appears to find its justification in the U.S. Supreme Court case Kentucky v. Stincer, 482 U.S. 730, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987). Off significance, for the circumstancess presented in this case, the U.S. Supreme Court noted:
We conclude that respondent's due proceess rights were not violated by his exclusion from the competency hearing in this case. We emphasize, again, the particular nature of the competency hearing. No question regarding the substantive testimony that the two girls would have given during trial was asked at that hearing. All the questions, instead,, were directed solely to each child's ability to recollect and narrate facts, to her ability to distinguish between truth and falsehood,, and to her sense of moral obligation to tell the truth. Thus, although a competency hearing in which a witness is asked to discuss upcoming substantive testimony might bear a substantial relationship to a defendant's opportunity better to defend himself at trial, that kind of inquiry is not before us in this case. [Emphasis added.]
Id., 107 S.Ct at 2667--68.
[¶8] A brief, albeit incomplete, analysis of that Supreme Court decision in a secondary authority contains this discussion:
In Stincer, the defendant (but not his counsel) was excluded from an in-chambers hearing at which the trial court made a preliminary determination as to whether two children who were victims of the charged sex offense had sufficient understanding of their obligation to tell the truth and sufficient intellectual capacity to be competent to testify. The Supreme Court initially noted that even though a particular hearing might be characterized as a ―pre-trial proceeding,‖ it could still be a ―stage of the trial‖ for confrontation clause purposes. That was true for the competency hearing since it ―determines whether a key witness will testify.‖ Under the circumstances of this case, however, the defendant's exclusion from the hearing did not interfere with opportunity to confront the witness through cross-examination. The questions asked at the competency hearing did not relate to the crime itself (but only to each child's capacity to recall facts and distinguish between truth and falsehood), many of the background questions were repeated at trial, the children were subject to ―full and complete‖ cross-examination at trial, and the judge's preliminary ruling at the in-chambers hearing was subject to reconsideration in light of the witnesses' trial testimony. In addition, the due process component of the defendant's right of presence was not violated as defendant's personal participation in the hearing would not have borne ―a substantial relationship to [the] defendant's opportunity better to defend himself at trial.‖*fn3 6 William R. LaFave, et al., Criminal Procedure § 24.2(a), 314-15 (3rd ed. 2007); compare Stincer v. Commonwealth, 712 S.W.2d 939, 940-42 (Ky. 1986) (―[T]he children's testimony was the sine qua non to the prosecution's case. Appellant's trial might not have taken place had the trial court determined that the children were not competent to testify.‖); and see People v. Stroud, 804 N.E. 2d 510, 517 (Ill. 2004) (declining to apply Stincer where defendant's presence at the hearing was likely to be useful to his counsel and his defense); People v. Lofton, 740 N.E.2d 782, 798-801 (Ill. 2000) (declining to apply Stincer where competency hearing included questioning about events that took place at time of crime).
[¶9] As Victim 1 was seated in the courtroom, the trial judge began the proceedings with this comment to Victim 1: ―Have a seat. We have a couple of questions for you. This kind of scary stuff. Is it okay?‖ Victim 1 responded, ―Yeah.‖ In answer to questions from the prosecutor, Victim 1 related: his name; the spelling of his last name; his age; the date of his birth; where he went to school; the name of his current teacher; where he went to school in prior years and the names of those teachers; and the name of the town in which he was born and that his grandmother lived there. The next line of inquiry was directed at Victim 1's understanding of the difference between right and wrong and the truth and a lie. Victim 1's initial response was, ―I didn't understand the question.‖ However, when the prosecutor followed up with an example about the color of his necktie, Victim 1 indicated that it would be a lie to say it was a color that was not in the tie. He also indicated, in response to questions and suggestions from the prosecutor, that the two of them had met before on three or four occasions. The prosecutor inquired of Victim 1 what they talked about on those prior occasions and he did not appear to understand the question. The prosecutor then forthrightly asked if they had talked about Woyak. Defense counsel objected to the leading question, but the trial court overruled that objection. This exchange between the prosecutor and Victim 1 then followed:
Q: [By prosecutor] Did I tell you what happened with [Woyak] or did you tell me what happed with [Woyak]?
A: Um, you told me what happened with [Woyak]
Q: Okay. I need you to be real clear here, okay? I'm going to ask you another question. Did I tell you what to say or did you tell me what happened?
A: I tell you what happened.
Q: You told me what happened?
[¶10] In response to further questions, Victim 1 indicated that no one had told him what to say, only that the prosecutor, his mother, his dad, and his grandma had told him to tell the truth.
[¶11] The defense attorney's cross-examination was considerably lengthier than that of the prosecutor and many of the questions he asked were addressed to the substance of Victim 1's anticipated testimony. After about a dozen questions, Victim 1 indicated that if ―you tell the truth you won't go to jail.‖*fn4 That answer caused an interruption to the proceedings when the prosecutor laughed out loud. Victim 1 asked the prosecutor why he was laughing and the prosecutor answered; ―Because you always worry about going to jail.‖ The defense attorney then continued asking Victim 1 questions, including such things as if he had ever told a lie, to which he answered, ―no‖ (although the record is not crystal clear in this regard because many answers are given in the transcript as ―nodded‖). The defense lawyer also asked Victim 1 about what people he had talked to about what happened with [Woyak]. Again the record is not as clear as it might be, but Victim 1 indicated that he had talked with the prosecutor, with Eileen, Tony (dad?), his mother, and his brother.
[¶12] In another exchange with the defense attorney, Victim 1 indicated that his mother had told him something about what happened between his infant sister and Woyak:
Q: [By defense attorney] What did your mom talk to you about [your sister] for?
A: She told me what happened.
Q: She told you what happened?
A: I don't know why she told me.
Q: What did she tell you happened?
A: She just told me that -- tell me -- I don't know, that's from a long time ago. I don't know what she said.
Q: But she told you something happened to [sister]?
A: She told me what happened with [Woyak] and [sister] too.
Q: Okay. What did she say happened between [Woyak] and [sister]?
A: I don't understand the question.
Q: Do you remember your mom telling you something about [sister] and [Woyak]?
A: I don't know if she did or not. Maybe she did.
Q: Okay. Did you talk to your brother about this?
A: My brother had a secret with my mom.
A: About don't -- she told me that -- don't tell anybody what happened, just tell the people that are going to talk to you.