Whiteplume v. State , 1992 Wyo. LEXIS 159 ( 1992 )

CARDINE, Justice,

dissenting.

I dissent because I totally disagree with the majority’s conclusion “that a reasonable possibility exists that, had the jury not heard the deputy sheriff’s ‘rape determination’ testimony, the verdict might have been more favorable to the appellant.”

The entire statement by Sheriff Deputy James Nethercott, which the majority finds destroyed the entire trial, was:

I listened to her story and made a determination that she had been raped, and I placed her in my patrol car to take her to the hospital.

The prosecutor did nothing to elicit the deputy sheriff's opinion. There is no evidence that the witness was advised to make the statement, despite the majority’s suggestion that this might be so. But more important, it is clear that the statement was no more than an explanation of why the deputy was taking the victim to the hospital for a rape evidentiary examination. His determination at that time was really not very earth shattering in view of the facts then determined. Defense counsel failed to object, and for good reason. It was obvious that it was simply an explanation for the next step in his investigation: i.e., taking the victim to the hospital. The message this court sends to law enforcement now is that the approved testimony will be, “I determined she had not been raped, but decided to take her to the hospital for a rape evidentiary exam anyway.” This court was not present at the trial and cannot know the dynamics of the courtroom scene. Had we been present, I am sure we also would have been impressed by the lack of concern by all. To trial counsel, the statement was a preliminary explanation to the next step in the investigation. To different appellate counsel, it was something to seize upon from a search of the record.

The detective testified that when he arrived at the Hurst’s house, he found the victim crying and hysterical, and he observed bruises on her arms and her breast, as well as scrapes on her shoulder and thigh. He testified that, based on his experience, he concluded that the injuries which he observed were fresh. She was clad only in a shirt and was crying and shivering. She had called the police herself to report the rape. Each of these observations and statements were made just before the deputy sheriff determined she had been raped and took her to the hospital. There was significant credible evidence in addition to her statement that would lead any reasonable, experienced police officer to believe she had been raped by someone, and that is all the officer said in a preliminary way to explain taking her to the hospital. Under no stretch of the imagination can we fairly say that Officer Nethercott relied upon the statement of the victim alone and thus was vouching for her credibility.

This was a four-day trial that produced over 700 pages of transcript. The trial included the testimony of 11 witnesses and countless numbers of words. The majority undermines a competent jury verdict based upon a few words spoken by a single witness and taken out of context. These few words were uttered without any of the typical trial fanfare associated with contentious evidence. No trial is perfect, as is evident here, but the record does not present sufficient evidence to usurp a jury’s authority. Because the deputy sheriff’s statement was only one of many during a lengthy trial and because the statement was based on more than just his opinion as to the victim’s credibility, I find it impossible to believe that the deputy’s statement so moved the jury that for the next three days they were unable to hear and consider the evidence and fairly decide the case.

The statement did not affect a substantial right for three important reasons. First, the time and manner of the admission of the deputy sheriffs statement was of no greater significance to the jury than any of the other voluminous testimony. Second, the deputy sheriff’s statement and determination were clearly grounded on more than his opinion of the credibility of the victim’s story. Third, there was no objection. Defense counsel must not have thought it as important as this court for he did not object. Lack of objection invokes the plain error doctrine. For plain error to be present, three elements must be established: First, the record must clearly show what occurred at the trial without resort to speculation. Second, the existence of a clear and unequivocal rule of law must have been violated in an obvious way. Third, this violation must have adversely affected some substantial right of the accused. Monn v. State, 811 P.2d 1004, 1006 (Wyo.1991); Rands v. State, 818 P.2d 44, 48 (Wyo.1991). There was not violation of a clear and unequivocal rule of law as would constitute plain error. The conviction should be affirmed.