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Jay Allen Gruwell v. the State of Wyoming

April 18, 2011


Appeal from the District Court of Campbell County The Honorable Dan R. Price, II, Judge

The opinion of the court was delivered by: Burke, Justice.

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

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be made before final publication in the permanent volume.

[¶1] Appellant, Jay Allen Gruwell, challenges his conviction on one count of sexual abuse of a minor in the third degree, in violation of Wyo. Stat. Ann. § 6-2-316(a)(iv).*fn1

He contends the district court erred in excluding the testimony of one proposed expert witness and limiting the testimony of another expert witness. He also argues that the district court erred in determining that the child victim was competent to testify at trial. We affirm.


[¶2] Appellant presents the following issues:

1. Did the district court abuse its discretion in excluding Appellant's expert witness, Dr. Fukutaki, thereby denying Mr. Gruwell his right to present a defense and his right to compulsory process?

2. Was it clearly erroneous, based on the record of the competency hearing, for the district court to determine that the five year old A.H. was competent to testify?

3. Did the district court abuse its discretion by limiting the scope of Dr. Denison's expert testimony to only general characteristics of sex offenders and the types of behaviors of the perpetrators who commit these types of alleged crimes?


[¶3] During the weekend of May 16, 2009, Appellant traveled to Gillette, Wyoming, to attend his nephew's graduation. On Saturday morning, May 16, Appellant drove to his brother-in-law's house to meet with other family members. Appellant went to the basement to check email on his laptop computer. While Appellant was using his computer, A.H, age 5, asked if she could play a game on the computer. Appellant agreed and they played games on the computer for a while. At some point in time, according to the State, Appellant exposed his penis to A.H. and asked if she wanted to touch it. A.H. ran upstairs, found her mother, and told her that she and Appellant had been playing a game on his computer, and that Appellant had his "privacy" out and asked her to touch it.

[¶4] Two days later, A.H.'s parents contacted the Wyoming Division of Criminal Investigation (DCI) to report the incident. Later that week, DCI agents traveled to Appellant's office in Lusk, Wyoming, to interview him. During the initial interview, Appellant stated that he remembered that his penis was in plain view, but that he did not remember taking it out of his pants. He denied that he asked A.H. to touch it. At the close of the interview, Appellant was told to contact the DCI agents if he remembered anything else. The agents left Appellant's office and headed back to Gillette. A short time later, however, Appellant telephoned the agents and told them that he wanted to speak with them again. The agents returned to Appellant's office for a second interview. During the second interview, Appellant admitted that he had asked A.H. to touch his penis.

[¶5] Appellant was subsequently charged with sexual abuse of a minor in the third degree. On September 9, 2009, he pled not guilty to the charged offense. The following day, the court entered a Criminal Case Management Order setting a trial date of December 7, 2009. The Order required the parties to file a list of all witnesses and exhibits no later than three working days before the pretrial conference, which was to be held on November 5. The Order also stated that the defense could be afforded relief from the witness disclosure requirements if the defense filed a motion establishing good cause for relief at least five working days before the pretrial conference. Appellant did not file a motion requesting relief from the disclosure requirements at any time prior to the pretrial conference.

[¶6] Appellant filed his pretrial memorandum on November 4. He identified more than thirty potential witnesses, including Dr. Chuck Denison. According to the witness designation, Dr. Denison was proposed to testify "that his psychosexual evaluation of Jay Gruwell shows him to be a stable person with no indicators of sexual deviance." After the State raised concerns about this testimony at the pretrial conference, the district court requested briefing on the issue. Appellant submitted a memorandum in support of admitting Dr. Denison's testimony. In that memorandum, Appellant acknowledged that Dr. Denison's proposed testimony "may be considered character evidence as allowed under Rule 404(a)(1)," and stated that "[i]f deemed character evidence under 404(a), defense counsel anticipates that the State, if allowed, will then attempt to introduce uncharged misconduct evidence under 404(b), specifically, the allegations of [B.P.]." The substance of that allegation was that Appellant had exposed himself to B.P. when she was 10 or 12 years old. Appellant also filed a motion in limine regarding those allegations, arguing that evidence of the prior incident of alleged misconduct by Appellant should be excluded. The court ruled that the State was prohibited from using the allegations of B.P. in its case in chief, but stated that it "cannot at this time prohibit the use of such allegations in the State's rebuttal case because the allegations may be proper testimony at trial if the defense should open the door to such testimony."

[¶7] Appellant did not identify any other expert witnesses aside from Dr. Denison in his November 4 pretrial memorandum, but included the following statement:

The Defense reserves the right to call additional witnesses in this matter specifically a witness who may testify about the effect that the repeated statements that the agent was not lying to the Defendant during the interrogation and that children like [A.H.] do not lie or have a very low probability that they are lying and other statements to that effect.

On November 30, 2009, Appellant filed a motion to amend his pretrial memorandum seeking to add an additional witness. That motion did not identify any witness by name or provide an explanation for the late notice. The motion stated:

The Defense reserves the right to call witnesses in this matter who may testify about the children's veracity, the effect of outside influences, and the psychology of children in general. This witness may testify about additional matters in connection with the defense of this matter.

On December 1, 2009, the district court issued an order denying the amendment of Appellant's pretrial memorandum. The court stated that Appellant's request "was filed after the deadlines set in the Criminal Case Management Order in this case and is unnecessarily vague." Further, the court found that "allowing the amendment at this time would be prejudicial to the opposing party."

[¶8] On December 2, 2009, three working days prior to trial, Appellant filed a Motion to Reconsider Amended Pretrial Memorandum and identified Dr. Karen Fukutaki as a proposed expert witness. Appellant sought to have Dr. Fukutaki testify as to the "voluntariness of the confession and the psychology relating to confessions." The district court again denied Appellant's motion, finding that it was "filed after the deadlines set in the Criminal Case Management Order" and that "allowing the amendment at this time would be prejudicial to the opposing party."

[¶9] Prior to trial, Appellant challenged A.H.'s competency to testify and also requested a taint hearing to determine whether A.H.'s testimony would be tainted by an interview with a forensic examiner from the Child Advocacy Center. The court conducted a hearing on Appellant's motion and determined there was insufficient evidence to support a taint hearing. Appellant does not challenge this ruling. The court also conducted a hearing to determine A.H.'s competency to testify at trial. After questioning the child, the court ruled that A.H. was competent to testify.

[¶10] After a three-day jury trial, Appellant was convicted of sexual abuse of a minor in the third degree and was sentenced to four to seven years in prison. He appealed his conviction to this Court. Additional facts will be set forth as necessary in our discussion of the issues.


Exclusion of Expert Witness

[¶11] Appellant contends the district court's decision to exclude the testimony of Dr. Fukutaki violated his right to present a defense under the Sixth and Fourteenth Amendments to the U.S. Constitution, and Article 1, § 10 of the Wyoming Constitution. He argues that Dr. Fukutaki's proposed testimony regarding confessions was crucial to his defense. Appellant asserts that his "entire defense was that he never exposed himself to the victim and this alleged confession was a false confession based on the methods of interrogation." The State contends Appellant gave no indication that he wished to introduce testimony by Dr. Fukutaki regarding the "false confessions" issue until Dr. Fukutaki was identified in his Motion to Reconsider Amended Pretrial Memorandum, which was filed less than three full working days prior to trial. The State argues that late ...

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