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.
BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
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.
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
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?
State articulates the same issues, although in more detail.
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.
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.
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.
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;
(B) Sexual intercourse, cunnilingus, fellatio, analingus or
anal intercourse with or without emission.
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[.]
6-2-301(a)(vi). The second degree sexual abuse count
pertained to Mr. Hathaway's touching and rubbing of
NC's vaginal area.
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.
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.
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.
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.
Motion to Suppress
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.
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).
Mr. Hathaway claims a violation of his rights under the Fifth
and Sixth Amendments to the United States
Constitution. 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.
[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).
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
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.
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