Appeal from the District Court of Campbell County, The Honorable John R. Perry, Judge.
The opinion of the court was delivered by: Golden, Justice.
Before VOIGT, C.J., and GOLDEN, HILL, KITE, BURKE, JJ.
[¶1] In this appeal, Robert Allan Sweet, convicted by a jury of one count of sexual abuse of a minor in the second degree, in violation of Wyo. Stat. Ann. § 36-2-315(a)(ii) and (b) (LexisNexis 2009),*fn1 raises three issues in his effort to overturn the judgment and sentence of incarceration of not less than 30 months nor more than 102 months, with credit for 315 days of presentence confinement. Sweet and the State agree that, generally stated, the three issues are whether the State presented improper vouching evidence; whether the district court‟s Jury Instruction No. 11 was improper; and whether cumulative error occurred because of alleged improper victim impact testimony, alleged judicial and prosecutorial bias in favor of the alleged victim, admission of alleged irrelevant evidence, and the prosecutor‟s multiple references to sexual assault. Because Sweet did not object at trial with respect to any of these issues, we shall apply our plain error standard of review in each instance.
[¶2] For the reasons set forth below, we hold that the State‟s presentation of improper vouching evidence constituted plain error and, therefore, we reverse and remand for a new trial. Although resolution of this issue is dispositive of this appeal, we shall also address the remaining issues because they may recur on retrial.
GENERAL STATEMENT OF FACTS
[¶3] On November 29, 2007, thirty-seven-year-old Sweet was living in a trailer in Gillette, Wyoming, with a number of individuals, including CB and CB‟s twelve-year-old daughter, SM. SM stayed home from school that day because she was feeling ill. Her mother and the others, except Sweet, left the trailer to take the children to school. As SM lay on a recliner in the front room watching a video, Sweet was sleeping on the couch in the front room. SM fell asleep in the recliner and was allegedly awakened by Sweet who was pushing her shoulder and grabbing her hands and holding them above her head. According to SM, Sweet began to touch her breasts on the inside of her clothing, unzipped his pants and pulled out his penis, and told her not to tell anyone. SM said Sweet tried to pull down her pants, but she resisted his effort by pressing into the recliner. SM said she was screaming and trying to kick Sweet between his legs. She said Sweet had been drinking as she could smell it on him. According to SM, Sweet started crying, stopped what he was doing, and went into the bathroom. When SM‟s mother returned home, SM told her what happened, and her mother angrily confronted Sweet and called the police. Sweet left the trailer and was shortly apprehended by law enforcement personnel inside a residence in the neighborhood. After being taken into custody, Sweet was transported by a deputy sheriff to the sheriff‟s department, interviewed, and placed under arrest.
[¶4] On November 30, 2007, the prosecutor filed a felony information charging Sweet with one count of sexual abuse of a minor in violation of Wyo. Stat. Ann. § 6-2-315(a)(ii) and (b). On December 6, 2007, Sweet waived his right to a preliminary hearing and was bound over to the district court. He was arraigned on February 7, 2008, and entered a plea of not guilty to the charge. On February 11, 2008, he filed a motion to suppress recorded statements made on November 29, 2007, to sheriff‟s deputy Duane Peyrot, alleging that any statements were not voluntarily made because of his alcohol consumption. The State filed its traverse to this suppression motion on March 11, 2008. The district court filed its order denying the motion on April 22, 2008.
[¶5] On June 9, 2008, Sweet‟s jury trial began, and on June 10, 2008, the jury returned a verdict of guilty. The district court held a sentencing hearing on October 9, 2008, and entered sentence on November 14, 2008. Sweet timely filed a notice of appeal on November 19, 2008. Additional facts relevant to each of the three issues before us are set forth as necessary below.
Issue One: Whether the State Presented Improper Vouching Evidence
[¶6] In the State‟s pretrial exhibit list, the prosecutor listed the compact disc recording of the interview between Deputy Duane Peyrot and Sweet conducted in an interview room in the sheriff‟s department in the early afternoon of November 29, 2007, the day of the alleged incident giving rise to the charge against Sweet. Sweet‟s defense counsel had moved before trial to suppress the recording but only on grounds that Sweet‟s statements during the interview were involuntary, which motion the trial court had denied. Defense counsel made no other objections to the admissibility of the recording, did not move in
limine to redact any portions of the recording, and did not offer any cautionary jury instructions or admonitions concerning the recording.*fn2
[¶7] During jury selection, the prosecutor informed the prospective jurors that they would get to hear Sweet‟s recorded interview. After the jury was empanelled, the prosecutor made his opening statement. In the course of that statement, he commented on Deputy Peyrot‟s recorded interview with Sweet. The prosecutor stated that after Deputy Peyrot had talked in detail with SM and her mother, Deputy Peyrot returned to the sheriff‟s department and interviewed Sweet. The prosecutor then stated:
You will get to hear the deputy's impressions of Mr. Sweet as he sat there at that table; the fact that it was obvious to him that he had been drinking. You will get to hear Mr. Sweet‟s words as he responds to the questioning process. As I recall it, that interview takes approximately a half hour. And I will request that you pay very, very close attention to that recording for a couple of reasons.
First, we think that you will see a shift in position by Mr. Sweet as the interview takes place. We think you will see that he was able to understand the questions that he was asked; that he was able to defend the positions he took at various times during the interview, and we think toward the end of it you'll begin to hear a couple of things that become significant to you.
First of all, he‟ll agree he had a close relationship with the young girl, nearly a father/daughter type of relationship.
Second, we believe that you'll hear that he believed she's truthful.
Third, you‟ll be able to hear Mr. Sweet thought he might have done something in his sleep.
Now, of significance to this case -- well, let me back up just a little bit. Now, you'll be able to hear the entirety of that recording during Mr. Peyrot's testimony, and I may use it again in my closing argument. But I must ask you to pay very close attention to that, because even though you‟ll be allowed to take the recording into the jury room, you will not get to play it again. So it is significant evidence, and you need to concentrate on it. [Emphasis added.]
[¶8] Defense counsel did not object to the prosecutor‟s opening statements. But, defense counsel did address in his opening statement what he called Sweet‟s "so-called confession." He asked the jurors to listen very carefully and "to keep really careful notes of the things said in that." He then stated:
One of the things that I‟d like you to watch for is to see if Mr. Sweet ever says that I did this. You‟re never going to hear that. In fact, he says he didn‟t do it. He didn‟t do it. He says, Well, he admitted he might have been -- done it in his sleep. No, that‟s not exactly right, and you‟ll have to be the judges of that, not me.
That what he says is that at one point, Well, if I did it, I must have been -- I must have been asleep. Because he is denying that this ever happened, and that‟s what you‟re going to hear, and that‟s what -- that‟s what it actually is. Mr. Peyrot is a very good questioner and very experienced, and you‟ll hear that, too. But you will not hear a confession out of it for this particular offense . . . .
[¶9] Following the opening statements, the State presented its case-in-chief. The prosecutor called as witnesses, in order, SM; SM‟s mother, CB; John Wilkey, at whose residence Sweet was located after leaving the trailer when SM‟s mother angrily confronted him; Deputy Sheriff Kim Benedict, who drove Sweet to the sheriff‟s department after he had been taken into custody at Mr. Wilkey‟s residence; and Deputy Sheriff Duane Peyrot, who interviewed both SM and Sweet on the day of the alleged incident.
[¶10] Because the appellate issue of improper vouching focuses on Deputy Peyrot‟s statements concerning Sweet‟s mendacity and guilt and SM‟s truthfulness appearing in his recorded interview with Sweet, we shall begin with a review of relevant portions of the prosecutor‟s direct examination of Deputy Peyrot which explored both the deputy‟s interview of SM and his interview of Sweet. In response to the prosecutor‟s preliminary questions, the deputy testified briefly about his fifteen years in law enforcement which included the most recent eight years as a felony investigator. The prosecutor then questioned the deputy about his interview of SM and SM‟s mother at their residence:
Q: And did you go inside the residence?
A: I went inside where I met [CB], introduced myself to her. She introduced me to [SM]. Those are the two people in the house at the time.
Q: All right. Once you‟d been introduced to both of them, what did you do, sir?
A: Well, briefly I talked to [CB]. She was very animated. She was angry. Her hand was bleeding. She was talking very rapidly, and she explained to me what she had done.
Q: All right. After talking with her, what did you do then?
A: After -- after talking to her briefly, I introduced myself to [SM]. I told [SM] that one of the jobs that I did, in addition to everything else she understood police officers to do, was that frequently I worked with children, and frequently I worked with children who are involved in cases like the one that we thought we had on our hands at the time.
I asked [SM] if her and I could talk. At the beginning of that she decided she wanted her mother to be present, so we sat in the living room where we started to talk. Shortly after [SM] started, and I started to get down to the nuts and bolts of our conversation, [her mother] excused herself.
Q: Do you have any idea as to why she did that?
A: Well, I was encouraging her to, just because my experience with young ladies is that they‟re a little more comfortable -- if they‟re comfortable with me, they‟re comfortable with me without a parent; but also [her mother] was extremely angry, and I didn‟t want her to influence [SM] by saying things or by exploding when a certain something come out of [SM‟s] mouth. So it worked out good for both of us she wanted out of there.
Q: Can you estimate for the jury just how long it was that you interviewed [SM] that day?
A: Well, . . . I think between 35 to 40 minutes.
Q: All right. Have you had specialized training in interviewing children?
A: Basic interview schools that police officers go to especially as they become investigators or detectives are general in nature and, therefore, not specifically designed for children. I‟ve been to at least two of those.
In November of 2005 I went to Minnesota to a college to a special class, forensic interviewing of children put on by the national organization called Corner House, and that training includes especially conversations and interview techniques and ideas and situations to use especially with younger children. After about five minutes of talking to [SM], I decided not to do so much of a formal forensic interview with her like I would if she was younger.
Q: And you made that decision based on her responses to your questioning at the early phase?
A: I did. As we got to know each other a little bit, one of the things that I went through with [SM] was that I‟m a police officer and that I deal with kids and that I understand that kids aren‟t like adults and they can‟t all the time stand straight up and look you in the eyes and answer questions.
I let her know that if I got something wrong, if I was reading something I thought she said, if I got it wrong or if I misunderstood her, she was completely okay to correct me. She was to line me out if I was even making her uncomfortable or misinterpreting her. I asked her if she knew the difference between what the truth is and what the lie is. By the Corner House standards, if you go through those kind of initial questioning with a kid, what you‟re trying to do is find out how comfortable the child is talking to an adult, talking to an adult in uniform carrying a firearm. And it wasn‟t too long where I was pretty comfortable. I thought [SM] -- I thought [SM] was ready to get going about the nuts and bolts of what I was there to talk to her about, and I kind of skipped over the rest of it.
Q: So would it be fair to characterize your interview with her then as essentially that of a near adult?
A: I think that‟s fair, yes.
Q: Could you estimate for the jury during your entire career how many children that you've interviewed regarding sex crimes?
A: Well, for -- since January of 2000 I have been responsible for probably 90 percent of the sex crimes investigated at the sheriff‟s department, probably 95 percent of those involving children. Children victims, technically under the age of 18 are juveniles, probably I would say 125 to 150 victims.
A: Since receiving the specialized training in interviewing children, probably -- probably 50 children since about the fall of '05 since I had the specialized training.
Q: So the grand total would be what approximately?
Q: All right. Now, did there come a time when you talked with a gentleman by the name of Robert Sweet?
A: Yes, there was. [Emphasis added.]
[¶11] At this point in the prosecutor‟s direct examination of Deputy Peyrot, the prosecutor had him identify Sweet in the courtroom; identify that the recorded interview of Sweet took place in the sheriff‟s department; and describe the interview room, its lighting, and its furniture. Next, the prosecutor had the deputy identify for the record the CD interview recording and moved its admission into evidence. The prosecutor then played the recorded interview between the deputy and Sweet.
[¶12] The parties have not provided the Court with a transcript of the recorded interview. The Court has, however, listened carefully to the recording. Its playing length is twenty-nine minutes, fourteen seconds. The following excerpts from that recording are the ones of most interest with respect to the improper vouching issue. After brief introductions, Deputy Peyrot said, "Let me tell you what‟s going on . . . but I think you know, I just came from talking to [SM] -- uh -- she told me a story and I think you‟ve done something very dumb today and, uh, and that‟s why I‟m here to try to straighten out with you -- because either dumb or planned -- and I hope it‟s not planned." Here, Sweet interjected "I didn‟t do anything." Deputy Peyrot goes on, "Ok, we‟re going to do this the right way because I know that‟s not true and I know you remember." The deputy then informed Sweet why he was in custody and that he could not leave. The deputy then said, "I know you‟ve had a hard day and I know you‟ve done some things today that you normally wouldn‟t have done." Sweet again interjected, "I didn‟t do anything wrong." The deputy continued, "My job is to find out what led you to some poor choices today. Ok, so with that in mind, I‟m going to go ahead and read you your rights." Following that advisement, Sweet agreed to have a conversation with the deputy. The deputy briefly related his investigation which included talking to SM and SM‟s mother. The deputy then said that SM seemed to him like a very nice young lady.
[¶13] The deputy and Sweet then talked about Sweet‟s drinking and events preceding the alleged incident. The deputy then stated that he had talked to SM and her story was the only one the deputy had so far, and Sweet was the only one who could tell his story. The deputy and Sweet then briefly talked about Sweet‟s having left the trailer because SM‟s mother had angrily accused him of raping SM, and the deputy stated he knew it wasn‟t true that Sweet had done that. Then Deputy Peyrot stated, "My only interest here is the truth." For the next five minutes of the recording, Sweet spoke generally about the events of the morning including SM‟s mother taking the other children in the trailer to school; SM‟s being sick and staying home; his being asleep; the friendship and trust between him and SM; and that he did not rape or touch SM. The deputy then stated that, in view of that relationship built on trust, the deputy was left with confusion why what happened with SM happened, unless alcohol got the best of Sweet. At this, Sweet asked, "What did she say happened?" Deputy Peyrot then related what SM had told him, including the size of Sweet‟s penis. Sweet replied that he does undo his jeans (when sleeping). The deputy stated there was only one way SM knew about Sweet‟s penis and that was because "she‟s telling me the truth and you‟ve made a gravest mistake today, a huge mistake today . . . and lost control of yourself somehow, which is very unfortunate, I got to tell you [SM‟s] heart is broken . . . ."
[¶14] Throughout the deputy‟s statements, Sweet stated that he was sleeping and nothing happened. Deputy Peyrot then stated that he knew Sweet was not sleeping and Sweet felt bad about what happened. The deputy asked if Sweet had any remorse about what happened; Sweet said nothing happened; and the deputy stated, "I know that you did, I know that [SM] saw your penis this morning." Sweet replied that SM was wrong, to which Deputy Peyrot rhetorically asked, "She‟s a liar," and Sweet stated he won‟t call her a liar. The deputy next stated that he has had a lot of experience with men who live with single moms with kids and become their best friend for purposes of sexually taking advantage of their children. The deputy stated that there are only two ways for what happened, one is that Sweet planned and organized it or he made a bad decision. After stating he wondered if he needed to talk to every young lady Sweet had been around, the deputy said, "Well, I know this happened today, I know you reached in her shirt and felt her boobs" -- Sweet interjected, "No, I did not" -- I know that you unzipped your pants and took your penis out, ok, because there‟s only one way twelve-year-old [SM] who adores you like a father saw your penis and that‟s that her story is true and you‟re feeling holy shit what happened today."
[¶15] After further conversation concerning Sweet‟s leaving the trailer and going to another trailer that he was not supposed to be in, SM‟s statement to the deputy, and Sweet‟s denial, Deputy Peyrot said this was not a situation where Sweet was going to "insult [SM‟s] honesty . . . my intelligence . . . and your own dignity by telling me that you were asleep . . . ." Sweet then stated he has a history of sleepwalking; he said, "maybe I did it in my sleep, I don‟t know." Sweet said, "I might have done it, but I was sleeping." He said, "If it happened, I will not disrespect what she said, but I apologize very much so because . . . I did, I went to sleep." After stating Sweet was claiming it happened in his sleep, the deputy said, "Yet, I know it happened and you‟re saying, maybe, Duane, I did it in my sleep." The deputy said that even in his biggest drinking weekend he never grabbed a twelve-year-old girl and told her, "Don‟t ever tell anybody about this and took my penis out, that‟s what happened this morning and I want to know why." Sweet responded that he didn‟t believe the deputy and didn‟t believe SM. Sweet then said if it happened, he was extremely sorry, but he didn‟t believe it did, because he was asleep. Deputy Peyrot then said that the only deviation between what SM had told him and what Sweet was telling him were the things that were trouble for a thirty-seven-year-old man. Sweet replied he did not touch SM, to which the deputy said, "Well, I believe that you did." When Sweet reiterated that he was not lying, the deputy replied, "I gotta tell you I‟m not lying either. I believe the things that [SM] told me." The deputy told Sweet he was not buying his sleepwalking. Sweet again said nothing happened. Apparently at this point in the interview, Deputy Peyrot momentarily left the room.
[¶16] When the deputy resumed his interview, he again reviewed what SM had said about Sweet‟s penis and that he didn‟t think she was making a false report. When Sweet said he didn‟t recall doing anything, the deputy said, "You see the problem I‟m in because I ...