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Davis v. State

Supreme Court of Wyoming

December 14, 2017

GREGORY DOUGLAS DAVIS, Appellant (Defendant),
v.
THE STATE OF WYOMING, Appellee (Plaintiff).

         Appeal from the District Court of Campbell County The Honorable John R. Perry, Judge

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

          Representing Appellee: Peter K. Michael, Attorney General; David L. Delicath, Deputy Attorney General; Christyne M. Martens, Senior Assistant Attorney General; Samuel S. Voyles, Assistant Attorney General. Argument by Mr. Voyles.

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

          BURKE, CHIEF JUSTICE.

         [¶1] Appellant, Gregory Douglas Davis, challenges his conviction for strangulation of a household member, in violation of Wyo. Stat. Ann. § 6-2-509(a)(i). He contends he was denied a fair trial as a result of prosecutorial misconduct and that there was insufficient evidence to support his conviction. We affirm.

         ISSUES

         [¶2] Appellant presents the following issues:

1. Did the prosecutor commit misconduct which denied Appellant his right to a fair trial?
2. Was the verdict supported by sufficient evidence that bodily injury resulted from reckless impeding of breathing or circulation?

         FACTS

         [¶3] On June 1, 2015, Appellant asked his estranged wife, Jill Davis, to visit him for dinner before an upcoming operation on his foot. During the visit, Appellant became very emotional and stated that he loved Ms. Davis and couldn't go on without her. He asked for a hug, and she sat on his lap. He started to pull on her clothes and tried to undo her pants, but she told him to stop and asked him to release her. Appellant then became aggressive.

         [¶4] Appellant threw Ms. Davis on the floor and tried to take off her clothes. He then let Ms. Davis up from the floor, and she grabbed her phone and car keys and tried to leave the house. Appellant ran after her, took her phone and keys, and wrestled her to the floor a second time. While on the floor, Appellant laid on top of Ms. Davis, grabbed her neck, and ripped off one of her earrings. She repeatedly told Appellant she could not breathe, and asked him to let go. During the struggle, Appellant tried to give Ms. Davis a hickey on her neck, and she scratched him with her fingernails and bit his arm. After Ms. Davis began to cry, Appellant finally let her up.

         [¶5] Ms. Davis retrieved her keys and escaped from the house without stopping to get her shoes. She made a 911 call to the police as she was driving away. During the call, Ms. Davis stated she had been in an altercation with Appellant, and was concerned that he was suicidal. Just after midnight on June 2, 2015, Deputy Trevor Budd of the Campbell County Sheriff's Office was dispatched to Ms. Davis' residence.

         [¶6] Ms. Davis told Deputy Budd that Appellant grabbed her neck during the altercation and that she couldn't breathe. Her voice was raspy, her pants were wet in the crotch, and she had red marks on her neck. In a written statement that recounted the events, Ms. Davis stated that "[Appellant] was grabbing my neck. My earring ripped out. I kept telling him I couldn't breathe. Please let go. I can't breathe. Get off me."

         [¶7] After she spoke with Deputy Budd, Ms. Davis was evaluated by two emergency medical technicians. She told the EMTs that Appellant had assaulted and choked her, and that she had to fight to get away. She stated that she was unsure whether she lost consciousness during the altercation. The EMTs noted that Ms. Davis had bruising and petechiae[1] around her neck.

         [¶8] Later in the day on June 2, 2015, Ms. Davis met with the prosecutor for the first time. The prosecutor explained that Appellant would be charged with strangulation, and Ms. Davis indicated that she had reservations about the term "strangulation." After she was instructed to go to the hospital for an evaluation, however, Ms. Davis reported to the admitting nurse that she had been assaulted and strangled. She also reported to the examining nurse that Appellant had choked her and that she had been unable to breathe. She stated that she had urine incontinence and was not sure whether she had lost consciousness. The examining nurse noted that Ms. Davis had a headache and had extensive petechiae around her neck and ears. The nurse concluded that Ms. Davis' symptoms were likely the result of strangulation.

         [¶9] Ms. Davis was also evaluated by Dr. Daniela Gerard, an emergency room physician. Dr. Gerard concluded that Ms. Davis' symptoms indicated that it was very likely that she had been strangled. Based upon Ms. Davis' symptoms - including the probable loss of consciousness, her periods of amnesia, the petechiae around her neck, and her incontinence - as well as her statements that Appellant had grabbed her neck, Dr. Gerard diagnosed her with asphyxiation by strangulation.

         [¶10] Ms. Davis met with the Sheriff's investigator, Kim Jones, for a taped interview on June 4, 2015. Ms. Davis told Ms. Jones that Appellant had grabbed her neck. Ms. Jones asked Ms. Davis "[i]s that when he strangled you the second time you went down?" Ms. Davis responded with an affirmative "uh-huh." Ms. Davis also stated, however, that she had told the prosecutor that Appellant "did not have his hands around my neck that I remember."

         [¶11] Appellant was charged with strangulation of a household member in violation of Wyo. Stat. Ann. § 6-2-509(a)(i) (LexisNexis 2015). Prior to trial, Ms. Davis contacted the State and stated that she wanted an opportunity to reconcile with Appellant and did not agree with the prosecutor's position in plea negotiations. Ms. Davis subsequently submitted an affidavit of non-cooperation that was drafted by Appellant's counsel. In a telephone message on December 7, 2015, she asked the State to drop the charges against Appellant. She met with the prosecutor on January 19, 2016, and minimized the physical altercation and changed the details she had provided to law enforcement and medical staff.

         [¶12] The State subsequently filed a notice of intent to use Rule 404(b) evidence, stating that it planned to use evidence of other acts by Appellant to explain why Ms. Davis was minimizing the events of June 1, 2015, and changing some of the details from her earlier accounts to law enforcement and medical providers. It also sought to introduce evidence of Appellant's pretrial efforts to influence Ms. Davis' testimony. Appellant objected to the State's motion to introduce evidence under Rule 404(b) and requested a Daubert hearing to determine the admissibility of the State's proposed expert testimony relating to the behavior of victims of domestic violence. The State also filed a motion to treat Ms. Davis as a hostile witness because she was no longer cooperating with the State.

         [¶13] The court held a hearing on the proposed expert testimony, the proposed Rule 404(b) evidence, and the State's motion to treat Ms. Davis as a hostile witness. The court concluded that the expert testimony would be helpful to the jury and determined that the expert would be allowed to testify. However, it reserved ruling on the State's motion to treat Ms. Davis as a hostile witness until Ms. Davis took the stand at trial.[2] The court took the 404(b) matter under advisement and subsequently issued an order concluding that the State's evidence relating to Appellant's ...


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