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Hathaway v. State

Supreme Court of Wyoming

August 7, 2017

JOHN HATHAWAY, Appellant (Defendant),
THE STATE OF WYOMING, Appellee (Plaintiff).

         Appeal from the District Court of Laramie County The Honorable Catherine R. Rogers, Judge

          Representing Appellant: Office of the Public Defender: Diane M. Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; Kirk A. Morgan, Senior Assistant Appellate Counsel. Argument by Mr. Morgan.

          Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Christyne M. Martens, Senior Assistant Attorney General; Emily J. Soli, Assistant Attorney General. Argument by Ms. Soli.

          Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.

          KAUTZ, Justice.

         [¶1] A jury found John Hathaway guilty of one count of first degree sexual abuse of a minor and one count of second degree sexual abuse of a minor. On appeal, Mr. Hathaway claims the district court should have suppressed his statements to law enforcement because the detective ignored his requests for an attorney; the district court committed plain error by allowing the detective's vouching statements into evidence; the district court abused its discretion by quashing his subpoena duces tecum to the Department of Family Services (DFS); and his sentence on the first degree sexual abuse conviction is illegal.

         [¶2] We affirm on Mr. Hathaway's first three issues. However, we reverse and remand for resentencing on Count II. Mr. Hathaway's sentence of thirty-two to thirty-five years on the first degree sexual abuse count is illegal because the minimum term is greater than ninety percent of the maximum term.


         [¶3] Mr. Hathaway raises the following issues on appeal:

1. Did the trial court err[] as a matter of law when it denied Mr. Hathaway's motion to suppress the statements he made after he repeatedly informed the investigating detective that he did not want to talk until he had an opportunity to consult an attorney?
2. Did plain error occur[] when the State played the police interview of Mr. Hathaway to the jury?
3. Did the district court abuse[] its discretion when it quashed a subpoena duces tecum without conducting an in camera review of the material?
4. [Is] Mr. Hathaway's sentence [] illegal as it violates Wyo. Stat. § 7-13-201?

         The State articulates the same issues, although in more detail.


         [¶4] During the relevant time, the alleged victim, NC, was between six and eight years old. Mr. Hathaway was involved in a romantic relationship with NC's mother, and the three of them lived together in Cheyenne. Mr. Hathaway moved out of the home in February 2015, and shortly thereafter NC told her grandparents that Mr. Hathaway had touched her inappropriately. NC's grandmother reported her claim to law enforcement on March 20, 2015. A sexual assault nurse examiner examined NC. NC told the nurse that Mr. Hathaway had touched her vagina, rubbed his penis between her legs and put his penis in her mouth.

         [¶5] Cheyenne police detective Zachary Johnson contacted Mr. Hathaway at his workplace on March 26, 2015. The detective said that he needed to speak with Mr. Hathaway about some "pretty serious" allegations. Detective Johnson did not initially reveal the exact nature of the allegations, but he told Mr. Hathaway that they involved NC. Although the detective did not formally "arrest" Mr. Hathaway until later in the initial encounter, Mr. Hathaway was in custody the entire time because he was not free to leave. At this point, the detective did not inform Mr. Hathaway of his rights under Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). Despite having not been informed of his right to counsel, Mr. Hathaway mentioned an attorney several times during the initial encounter. Mr. Hathaway did not give any incriminating statements during that initial interview.

         [¶6] Detective Johnson arrested Mr. Hathaway, took him to the police station, and interviewed him for several hours. At the beginning of the interview, Detective Johnson informed Mr. Hathaway of his Miranda rights, and Mr. Hathaway stated that he understood the advisement. The detective then asked if he wanted to "chat" "so we can get your side of this, " and he responded in the affirmative. The detective told Mr. Hathaway that NC reported he had sexual relations with her. Mr. Hathaway denied the allegations. He stated that NC had touched his penis and, when he was asleep, had put it in her mouth, but claimed she initiated all of the encounters. Throughout the interview, Detective Johnson repeatedly stated that he believed NC and did not believe Mr. Hathaway. The detective also stated the evidence showed that the sexual abuse had occurred.

         [¶7] The State charged Mr. Hathaway with three counts of first degree sexual abuse of a minor under Wyo. Stat. Ann. § 6-2-314(a)(i) (LexisNexis 2017): "(a) An actor commits the crime of sexual abuse of a minor in the first degree if: (i) Being sixteen (16) years of age or older, the actor inflicts sexual intrusion on a victim who is less than thirteen (13) years of age."

(vii) "Sexual intrusion" means:
(A) Any intrusion, however slight, by any object or any part of a person's body, except the mouth, tongue or penis, into the genital or anal opening of another person's body if that sexual intrusion can reasonably be construed as being for the purposes of sexual arousal, gratification or abuse; or
(B) Sexual intercourse, cunnilingus, fellatio, analingus or anal intercourse with or without emission.

         Section 6-2-301(a)(vii) (LexisNexis 2017). The first degree sexual abuse counts included two counts of penile/vaginal intrusion and one count of fellatio. The State also charged Mr. Hathaway with one count of second degree sexual abuse of a minor under Wyo. Stat. Ann. § 6-2-315(a)(ii) (LexisNexis 2017): "(a) Except under circumstance constituting sexual abuse of minor in the first degree as defined by W.S. 6-2-314, an actor commits the crime of sexual abuse of a minor in the second degree if: . . . (ii) Being sixteen (16) years of age or older, the actor engages in sexual contact of a victim who is less than thirteen (13) years of age."

(vi)"Sexual contact" means touching, with the intention of sexual arousal, gratification or abuse, of the victim's intimate parts by the actor, or of the actor's intimate parts by the victim, or of the clothing covering the immediate area of the victim's or actor's intimate parts[.]

         Section 6-2-301(a)(vi). The second degree sexual abuse count pertained to Mr. Hathaway's touching and rubbing of NC's vaginal area.

         [¶8] Mr. Hathaway filed a motion to suppress statements he made during his interview with Detective Johnson. He claimed that, although he requested an attorney, the detective continued to question him in violation of his constitutional right to counsel. The district court held a hearing and denied the motion to suppress. It concluded that Mr. Hathaway had not made an unambiguous request for counsel.

         [¶9] In preparation for trial, Mr. Hathaway served a subpoena duces tecum upon DFS. He sought DFS records regarding NC, her mother, her mother's family, and her father's family. Mr. Hathaway requested that the district court perform an in camera review of the DFS records to determine if they contained any evidence of an alternate source of NC's sexual knowledge. Citing the confidentiality of its records, DFS moved to quash the subpoena. The district court quashed the subpoena because the defense did not meet the requirements for in camera review of the material.

         [¶10] A jury trial commenced on October 19, 2015. During the trial, the jury was shown a video and audio recording of Detective Johnson's full interview with Mr. Hathaway. The jury returned a verdict acquitting him of Counts I and IV, the two counts of first degree sexual abuse based upon penile/vaginal intrusion. It convicted him of Count II, first degree sexual abuse based upon fellatio, and Count III, second degree sexual abuse for sexual contact.

         [¶11] The district court sentenced Mr. Hathaway to serve terms of incarceration of thirty-two to thirty-five years on Count II and eighteen to twenty years on Count III. The sentence on Count III was to be served consecutive to the sentence on Count II. Mr. Hathaway filed a timely notice of appeal.


         1. Motion to Suppress

         [¶12] Mr. Hathaway claims the district court erred by denying his motion to suppress the statements he made to law enforcement. He argues that the statements were obtained in violation of his constitutional rights because Detective Johnson ignored his repeated requests for an attorney. Mr. Hathaway points to five instances during the initial encounter with the detective at his workplace where he claims he requested an attorney: 1) "Do I have to get a lawyer?" 2) "[Y]ou want me to go into a situation without any representation where I'm being accused of something serious." 3) "I need to get a lawyer. I have to get a f***ing lawyer." 4) "I don't know what to do right now and I'm stuck by myself. Okay so I feel like I need an attorney." 5) "I said I wanna talk to you when I talk to my lawyer and get one and so on." The district court refused to suppress Mr. Hathaway's statements to the detective because he did not make an unambiguous request for counsel.

         [¶13] The ultimate determination of "[w]hether a statement constitutes an unequivocal request for counsel . . . is a question of law, " subject to de novo review. Valdez v. Ward, 219 F.3d 1222, 1232 (10th Cir. 2000). See also Hadden v. State, 2002 WY 41, ¶ 17, 42 P.3d 495, 499 (Wyo. 2002). However,

[f]actual findings made by a trial court considering a motion to suppress will not be disturbed unless the findings are clearly erroneous. Because the trial court has the opportunity to hear the evidence, assess witness credibility, and draw the necessary inferences, deductions, and conclusions, we view the evidence in the light most favorable to the trial court's determination.

O'Boyle v. State, 2005 WY 83, ¶ 18, 117 P.3d 401, 407 (Wyo. 2005) (citations omitted). See also Tibbetts v. State, 2017 WY 9, ¶ 9, 388 P.3d 517, 520 (Wyo. 2017).

         [¶14] Mr. Hathaway claims a violation of his rights under the Fifth and Sixth Amendments to the United States Constitution.[1] The relevant portion of U.S. Const. amend. V protects the individual's right against self-incrimination: "No person . . . shall be compelled in any criminal case to be a witness against himself." U.S. Const. amend. VI protects an accused's right to counsel: "In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defen[s]e." The United States Supreme Court explained the protections afforded by these constitutional provisions in Miranda, 384 U.S. at 444-45, 86 S.Ct. at 1612:

[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.

(footnote omitted). If the accused is not advised of these rights, any statements he makes in response to custodial interrogation by law enforcement must be suppressed. Miranda, 384 U.S. at 444-45, 86 S.Ct. at 1612-13; Gunn v. State, 2003 WY 24, ¶ 7, 64 P.3d 716, 719 (Wyo. 2003). Compare, Lewis v. State, 2002 WY 92, 48 P.3d 1063 (Wyo. 2002) (confession made prior to Miranda warnings not admissible; however, subsequent confession made after proper warning admissible if it was made knowingly and voluntarily). The obligation applies to the states through the Fourteenth Amendment to the United States Constitution. Missouri v. Seibert, 542 U.S. 600, 607-08, 124 S.Ct. 2601, 2607, 159 L.Ed.2d 643 (2004).

         [¶15] As stated above, Miranda applies to custodial interrogation. The State conceded that, even though he was not immediately arrested, Mr. Hathaway was in custody when Detective Johnson contacted him at his workplace. The next question is whether the detective "interrogated" him during that initial encounter. Miranda described "interrogation" as actual "questioning initiated by law enforcement officers." Miranda, 384 U.S. at 444, 86 S.Ct. at 1612. Later, the United States Supreme Court clarified the definition, finding that the "goals of the Miranda safeguards" could be effectuated only if those safeguards extended to "express questioning" and "its functional equivalent." Arizona v. Mauro, 481 U.S. 520, 526, 107 S.Ct. 1931, 1935, 95 L.Ed.2d 458 (1987), citing Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297 (1980). The Court defined "functional equivalent" of express questioning as including "any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." Innis, 446 U.S. at 301, 100 S.Ct. at 1689-90. See also Pennsylvania v. Muniz, 496 U.S. 582, 600-01, 110 S.Ct. 2638, 2650, 110 L.Ed.2d 528 (1990).

         [¶16] During the initial encounter with Mr. Hathaway, Detective Johnson's questions were vague and he did not inform Mr. Hathaway of the precise nature of the allegations against him. He stated that he was investigating "pretty serious" allegations against Mr. Hathaway with "kind of a lot of evidence behind [them]" and asked for his explanation. The detective clearly was interrogating Mr. Hathaway as his questions, though obscure, were designed to elicit incriminating information. Mr. Hathaway was, therefore, entitled to be warned in accordance with Miranda. Given Detective Johnson did not properly advise him until after he had been transported to the police station, Miranda and its progeny would have rendered any statement prior to the warnings inadmissible in court. However, Mr. Hathaway's statements during that time were not inculpatory, and the State did not offer the pre-Miranda interview into evidence.

         [¶17] Under these circumstances, it is not surprising that Mr. Hathaway did not base his suppression argument on the detective's failure to properly advise him of his rights during the initial encounter. Instead, he asserts the statements he made during the interview at the police station should have been suppressed because he unequivocally ...

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