Appeal from the District Court of Laramie County. The Honorable Peter G. Arnold, Judge.
Representing Appellant: Timothy C. Kingston, Law Office of Tim Kingston, LLC, Cheyenne, Wyoming.
Representing Appellee: Peter K. Michael, Attorney General; John G. Knepper, Chief Deputy Attorney General; David L. Delicath, Deputy Attorney General; Jenny L. Craig, Senior Assistant Attorney General. Argument by Mr. Knepper.
Before BURKE, C.J., and HILL, KITE[*], DAVIS, and FOX, JJ. BURKE, Chief Justice, delivers the opinion of the Court; FOX, Justice, files a specially concurring opinion, in which KITE, Justice (Ret.), joins.
BURKE, Chief Justice.
[¶1] John Wallace McGinn was found guilty by a jury of domestic battery and possession of a weapon with intent to threaten. Mr. McGinn testified at trial, and, over the objections of defense counsel, the prosecutor asked him a series of questions in which she repeated statements made by his daughter and asked, " was she lying?" Prior to trial, at a hearing on the State's Rule 404(b) notice, the district court ruled that evidence regarding prior discharge of a gun would be admissible. Mr. McGinn appeals, contending the " was she lying" questions constitute prosecutorial misconduct, and that the trial court abused its discretion when it allowed the prior discharge evidence. We reverse.
[¶2] 1. Were the prosecutor's improper " was she lying" questions prejudicial to Mr. McGinn?
2. Did the district court abuse its discretion when it allowed evidence of prior discharge of the gun?
[¶3] Mr. McGinn and his wife, Shari Swenson, lived in Cheyenne, Wyoming, with their eight-year-old daughter, K. Ms. Swenson worked long hours, and Mr. McGinn was a stay-at-home dad. On the day after Thanksgiving 2012, Mr. McGinn was at home with K and he instructed her to fold the laundry. K balked, and swung at him, and Mr. McGinn testified that he gave her a " swat on her bottom, not very hard, and I sen[t] her to her room."  He then called Ms. Swenson and told her that K had been misbehaving.
[¶4] Ms. Swenson got home later that evening and found K in her playroom, where she reported that she had been hurt by Mr. McGinn. Ms. Swenson confronted Mr. McGinn, and the two embarked upon a fight that lasted several hours. At some point, the fight ceased being merely verbal. Ms. Swenson testified:
I stood up and I got in his face. He told me that he was the meanest son of a bitch that I'd ever seen. He backhanded me, and he proceeded down the hallway out of my eyesight.
[¶5] Ms. Swenson heard Mr. McGinn go into the bedroom and open the nightstand drawer where he kept his handgun. He came down the hall with the gun in his hand, waving it around, and said, " I'm not afraid to use this on you or anybody else. I'm not afraid to go to prison. I'm not afraid of any of that." Then Mr. McGinn went down to the basement, and when he came back up Ms. Swenson did not see the gun again. Meanwhile, Ms. Swenson packed some things for herself and K. The two got in her truck and left. The next day Ms. Swenson reported the incident to the Cheyenne police, who took their statements and photographs. Photos showed a lump over Ms. Swenson's left eye and some swelling around K's right eye and bruising on her back. Mr. McGinn was charged with child abuse, domestic battery, and possession of a weapon with intent to threaten.
[¶6] At trial, Ms. Swenson testified to previous incidents involving the gun. In spring 2012, Mr. McGinn was cleaning the gun and told Ms. Swenson he wanted to show her something. The gun discharged and the bullet went through the bathroom wall and into the foundation of the neighbors' house. Although Ms. Swenson believed at the time that the discharge was an accident, at trial she testified:
It could have been a misfire. It could have been an accidental discharge. It could have been a scare tactic. I don't know at this point.
[¶7] Ms. Swenson also testified to approximately five other occasions during which she locked herself in K's room and could hear Mr. McGinn outside the door with the gun. " [H]e would cock it, load it and unload it, so I could hear it." On one of those occasions she saw Mr. McGinn with the gun in his hands.
[¶8] Mr. McGinn testified at trial. His testimony regarding the laundry incident differed significantly from K's. On cross-examination, the prosecutor referred to specific statements K had made in her forensic interview and asked Mr. McGinn whether K was lying.
Q. She says she was folding laundry and you slapped her on the face. Is that true?
A. No, it's not true again for the second time.
Q. So she's lying?
A. I'm not saying that my daughter is lying. I'm going to say that Shari's -- that Shari's speaking, not her.
Q. She says she started crying then. Is she lying about that?
. . .
A. I never slapped her, so I don't know how you would like me to answer that.
Q. The answer is yes or no. She says you slapped her and then she started crying. Is she lying, yes or no?
[¶9] Defense counsel objected, noting that his client should not have to call his daughter a liar to explain what happened. The district court overruled the objection, and the same pattern of questions continued. The prosecutor asked approximately 20 " was she lying" questions. Then, upon defense counsel's renewed objection, the district court instructed the jury:
Ladies and gentlemen, that's a good point. Who is being honest and who is being dishonest is for you to decide. The questions I've allowed asked Mr. McGinn whether his daughter was being honest. There's a difference between the two. Or. whether he thought his daughter was being honest.
[¶10] After that instruction, the prosecutor changed her questions regarding K's version to " Is that true or not true?" At the close of the testimony, defense counsel moved for a mistrial on the basis of the " was she lying" questions. The district court denied the motion, explaining that the tactic was necessary in this case, where Mr. McGinn " forcefully" denied the facts testified to by his wife and daughter. In her closing argument, the prosecutor again referenced the " lying" testimony, saying " He said that she was lying to every single thing that makes him [look] bad."
[¶11] The district court called a recess after the prosecutor's closing and informed the parties that it had researched the propriety of the " was she lying" questions and concluded that " [s]uch questions are improper and the use of them amounts to misconduct." Defense counsel then renewed his motion for a mistrial, which the court denied. When the jury returned, the court advised:
You will recall that the State asked a number of questions of Mr. McGinn, whether he was lying or whether his daughter and wife were lying. Those questions were improper. And I am instructing
you to disregard the questions and ...