Christopher David Tarpey v. The State of Wyoming ( 2023 )

THE SUPREME COURT, STATE OF WYOMING
2023 WY 14OCTOBER TERM, A.D. 2022
February 6, 2023
CHRISTOPHER DAVID TARPEY,
Appellant
(Defendant),
v.
S-21-0234, S-22-0167
THE STATE OF WYOMING,
Appellee
(Plaintiff).
Appeal from the District Court of Teton County
The Honorable Marvin L. Tyler, Judge
Representing Appellant:
Devon Petersen of Fleener Petersen, LLC, Laramie, Wyoming.
Argument by Mr. Petersen.
Representing Appellee:
Bridget L. Hill, Attorney General; Jenny L. Craig, Deputy Attorney General;
Kristen R. Jones, Senior Assistant Attorney General; and Donovan Burton,
Assistant Attorney General. Argument by Mr. Burton.
Before FOX, C.J., and KAUTZ, BOOMGAARDEN, GRAY and FENN, JJ.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are
requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of
any typographical or other formal errors so that correction may be made before final publication in the
permanent volume.
FENN, Justice.
[¶1] Following a jury trial, Christopher Tarpey was convicted of one count of first-degree
sexual assault. On appeal he contends the district court violated his Sixth Amendment right
to a public trial, the district court committed plain error when it admitted a recording of the
victim’s statement to the police, and he received ineffective assistance of counsel. We
affirm.
ISSUES
[¶2] Mr. Tarpey raises three issues, which we rephrase as follows:
I. Did the district court violate Mr. Tarpey’s Sixth Amendment right
to a public trial?
II. Did the district court commit plain error by admitting the
recording of the victim’s statement to the police?
III. Did Mr. Tarpey receive ineffective assistance of counsel?
FACTS
[¶3] On July 26, 2020, Sergeant Russ Ruschill of the Jackson Police Department
received a call from BS who informed him Christopher Tarpey sexually assaulted her in
the early morning hours of July 23, 2020. Sergeant Ruschill recorded his telephone
interview of BS with his body camera. On December 10, 2020, the State charged Mr.
Tarpey with one count of sexual assault in the first degree. He pled not guilty at his
arraignment, which was conducted by videoconference with Mr. Tarpey’s consent.
Pretrial Proceedings and Covid-19 Protocols
[¶4] The district court set Mr. Tarpey’s trial for five days, beginning on June 1, 2021.
The district court’s scheduling order informed the parties the trial would be conducted in
compliance with its Covid-19 jury trial plan, and it required the parties to file any objections
to those protocols by March 26, 2021. Mr. Tarpey did not file any objections to those
protocols. The scheduling order also required the parties to submit a stipulated exhibit list.
The parties filed an exhibit list that indicated they stipulated to the admission of “select
excerpts” of the recording of Sergeant Ruschill’s phone interview with BS, which was
identified as Exhibit 1/MM. The exhibit list did not identify which excerpts the parties
intended to play.
[¶5] The district court addressed its Covid-19 protocols at the pretrial conference held
on May 7, 2021. The district court indicated it would be “taking every reasonable
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precaution” to protect the jurors, including socially distancing all the participants. The
district court stated the courtroom could not accommodate more than three people at each
counsel table, and any other people who wanted to attend the trial would have to do so by
a video link. Mr. Tarpey did not object at that time. The district court issued an order
following the pretrial conference, which incorporated the district court’s pandemic jury
trial plan and stated: “Counsel are directed to review that plan and raise any questions at
any upcoming conferences.” The order reiterated that due to the size of the courtroom,
three people could sit at counsel tables, and “[a]ll other support staff, co-counsel,
investigators, friends, family, Victim Services staff, etc. may attend by videoconference
link.”
[¶6] The district court held another pretrial hearing on May 25, 2021. At this hearing,
the State asked the district court if it had decided how it would be broadcasting the trial to
the public. The following discussion then took place:
THE COURT: The short answer is, no. I could get your -- what
are your thoughts about -- the easiest way to do this is there’s
a streaming capability audio only through the Supreme Court
website and some judges have done that. And obviously you
don’t have the video.
The other two choices for video are either full streaming to
YouTube or let people know how they could tune in through
Microsoft Teams. They each have their problems. However,
[the court reporter] and I are talking about -- at least this would
have to happen after voir dire because we wouldn’t have
enough space otherwise. But we’re talking about the
possibility of actually putting a Hub probably up there on the
jury box so that we could maybe get it at an angle that would
get the witness and the judge and the lawyers.
It would be kind of a long distance view, but at least it would
be a visual view. And we think we might be able to do that
without showing who the jurors are, which I want to avoid. So,
that’s an option we are working on this week.
Anybody have any recommendations?
[DEFENSE COUNSEL]: We anticipate that the defense would
be requesting sequestration. We’d have to make sure that
witnesses wouldn’t be streaming in and attending.
THE COURT: Yeah, that’s tricky, isn’t it?
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So, you know, upon request I am to issue a sequestration order,
it’s not a discretionary thing. And so upon request I issue it
and then it’s impossible for the [c]ourt to really police that, it’s
up to the parties. And so you’d have to make sure that all of
your witnesses know that that’s listening on anything.
However, it would be broadcast would be a violation of the
sequestration order and then as officers of the court if you
found out there was a problem you’d have to let us know. But
I think that’s probably a risk under any of the three modes of
transmission.
[THE STATE]: Your Honor, the state prefers the audio only
version. That’s my preference.
THE COURT: Okay. And other than your comment, [defense
counsel], do you have any preference?
[DEFENSE COUNSEL]: No.
THE COURT: Okay.
[DEFENSE COUNSEL]: Just it’s going to be difficult. Thank
you.
[¶7] The district court conducted a final pretrial hearing on May 28, 2021. The district
court indicated it made arrangements with the District Court Clerk to post a notice about
the audio broadcast on the Clerk’s website and at the front of the courthouse, so there would
be “reasonable public access in that regard.”
[¶8] The district court issued an order after the pretrial hearings. This order set forth the
district court’s reason for limiting public access to the trial and for using the audio
broadcast rather than a video link:
17. Public Access. As the [c]ourt’s jury trial plan indicates,
public access to the trial would occur remotely. Due to the size
of the courtroom, there is no space for public access during the
trial while accommodating physical distancing for the jurors.
The [c]ourt noted at the May 25 hearing that the video feed, if
a video broadcast were used, is not optimal for showing all trial
participants, protecting the privacy of the jurors, or both. The
[c]ourt was considering using an audio-only feed, used by the
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Wyoming Supreme Court and other trial courts in Wyoming.
Both parties requested the audio-only feed be used.1
18. The Sixth Amendment’s right to a public trial right was
made applicable to the states in In re Oliver[,] 333 U.S. 257,
270 (1948). A public trial is “for the benefit of the accused”
so “the public may see he is fairly dealt with and not unjustly
condemned,” which has the effect of “keeping his triers keenly
alive to a sense of their responsibility and to the importance of
their functions.” Id. However, the right to a public trial is not
absolute. In Waller v. Georgia, the Supreme Court set forth a
four-part test for trial courts to use to determine whether a
courtroom closure is appropriate. 467 U.S. 39 (1984). A
closure is appropriate when: (1) the party (or in this case, the
court), seeking to close the proceeding must advance an
overriding interest that is likely to be prejudiced, (2) the closure
must be no broader than necessary to protect that interest, (3)
the trial court must consider reasonable alternatives to closing
the proceeding, and (4) the court must make findings adequate
to support the closure.
19. The First Amendment also provides the right of public and
media access to trial proceedings. Press-Enterprise Co. v.
Superior Court of Cal. For the Cnty. of Riverside, 478 U.S. 1(1978). A First Amendment right to access criminal
proceedings[] exists if (1) “the place and process have
historically been open to the press and general public,” and (2)
“public access plays a significant role in the functioning of the
[p]articular process in question.” Id. at 8.
20. In this case, the criminal trial is open to the public. The
difference from an ordinary criminal trial is that the public and
media cannot attend in person. The public and media can
attend remotely. Some courts, when evaluating a partial
closure, have applied a less stringent test than that announced
in Waller. E.g., Judd v. Haley, 250 F.3d 1308, 1315 (11th Cir.
2001).
1
This statement is technically incorrect. As set out above, the State requested the audio broadcast, and
defense counsel stated he did not have a preference as to whether the district court utilized the audio
broadcast or a video link. While defense counsel did not affirmatively request the audio broadcast, he also
did not affirmatively object to its use.
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21. Applying the more stringent Waller factors in this case, the
overriding interest is one of public health, namely an airborne
virus (COVID-19) easily transmitted by aerosols emitted when
a person speaks or breaths, although respiratory droplets by
sneezing or coughing and fomite transmission through touched
surfaces are also recognized means of transmission. One of the
several scientifically-recognized tools to reduce contagion of
the airborne virus is to physically distance people six feet apart.
The District Courtroom is small. It can accommodate the
necessary number of jurors and litigants for trial with
physically distanced seating. But the space is too small to
allow more than the jurors, court staff, attorneys, and parties.
To allow open access for in-person attendance by the public
and the media would preclude physical distancing and
therefore increase the public health risk to the jurors and trial
participants. The [c]ourt therefore finds that the overriding
interest of public health warrants a change to the public access
procedures for this case.
22. To provide public access, the [c]ourt has considered (1) a
live videostream of the trial available online through YouTube
or a similar platform, (2) a live [videostream] of the trial by
invitation to the video conference meeting (as the [c]ourt has
used for bench trials during the pandemic), and (3) a live
audiostream to the trial. The Wyoming Supreme Court and
several other Wyoming trial courts use the audiostream option.
After testing the video capabilities of existing courtroom
technology, it is apparent that the available angles for the
videostream in the small courtroom are inadequate for a jury
trial. The video option has worked well for bench trials, all of
which have occurred remotely during the pandemic. For the
few in-person proceedings that have occurred during the
pandemic, the video option has also worked well since the
bench proceedings necessarily have a much smaller volume of
courtroom participants. As a result, the video angles are
appropriate and adequate. For a jury trial, they are not.
23. After testing the available options for a jury trial, the [c]ourt
must find that the live audiostream is the only feasible and
practical option at this time. As the only feasible option, the
audiostream is narrowly tailored. As noted above, the [c]ourt
has considered the other available options and found them
unworkable at this time after testing.
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24. With respect to the Sixth Amendment, it is notable that the
Defendant, whose right it is to have a public trial, did not
oppose the audiostream options and joined in the State’s
preference to use that option. With respect to the First
Amendment, the audiostream option is narrowly tailored to
serve the interest of public health.
[¶9] At the beginning of voir dire, the district court informed the jurors that due to Covid-
19, members of the public could not be seated in the courtroom, but the trial was being
broadcast to the public through the Supreme Court’s website. At the end of voir dire, the
district court again reminded the parties it intended to stream the trial through the audio
broadcast. Neither the State nor defense counsel objected to the use of the audio broadcast.
Presence of Victim’s Advocate
[¶10] About a week before trial, the State filed its second amended witness and exhibit
list, which contained the following request:
The State requests the [c]ourt consider allowing the victim’s
advocate to be present in the courtroom, in close proximity to
[BS] while she testifies in this matter, for the duration of her
testimony, as it is critical under the [] Victim’s Bill of Rights,
W.S. § 1-40-201 et seq.[,] the victim be free from any form of
harrassment [sic], intimidation, or retribution, especially
related to the victim being accompanied into the courtroom
and when giving testimony. W.S. § 1-40-205. The State has
consulted counsel for the Defendant who stipulates to the
victim’s advocate being present while the victim testifies in
this matter, which includes entering and exiting the
courtroom at any time.
Toward the end of the hearing on May 28, 2021, defense counsel asked the district court
how it planned to handle the victim’s advocate being present during BS’s testimony. The
following exchange occurred:
THE COURT: So, would it be okay -- since there’s not going
to be anybody up in the jury, there is a chair . . . in front of the
jury. I don’t know if you want to be able to see her during the
testimony, but if you come up here and see -- if you look.
[DEFENSE COUNSEL]: I can see a corner of the chair.
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THE COURT: It’s basically over there. So, it wouldn’t distract
the jury because she would be hidden by that partial partition.
That would be the most inconspicuous place for her. Is that
acceptable?
[DEFENSE COUNSEL]: Yeah. It sounds like it would be.
Yes, sir.
THE COURT: Is that okay?
[THE STATE:] Yes, Your Honor. And to the point I guess the
next question is would the [c]ourt be explaining her presence
and her role or would you like the state to do that? Seems like
it’s . . .
THE COURT: Since there’s no objection, I think it would be
appropriate for you to just explain that she’s there in a
supportive role and not to, you know, coach the witness or
anything like that. Just in a supportive role as an advocate,
probably not a victim’s advocate. And I think that would be
fine.
[THE STATE]: Thank you, sir.
THE COURT: Sure.
(Emphasis added). Defense counsel did not object either orally or in writing to having the
prosecutor explain the reason for the advocate’s presence or to the district court’s proposed
seating arrangement.
[¶11] At the trial, the State called BS as its first witness. Prior to BS’s testimony, the State
made the following statement regarding the reason for the advocate’s presence:
And before I begin my examination with this witness, I would
like to point out for the record and for the jury that [AH] has
joined us in the courtroom. [AH] is an advocate for the witness
and will be sitting near her for the duration of her testimony.
She will not be coaching the witness, but rather present in a
supportive role. The defendant has agreed to [AH] being
present.
Defense counsel did not object to this statement or request a limiting instruction.
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[¶12] Toward the end of the trial, the State asked the district court to allow BS and her
advocate to be present in the courtroom during closing arguments and suggested they sit at
the end of the jury box. The district court indicated it had never excluded witnesses from
attending closing arguments, and it asked for the defense’s position on the matter. Defense
counsel stated he was aware of the victim’s rights, and he thought it would be appropriate
for BS to be present if she was cautioned not to display any emotions during the closings.
The district court then discussed where BS and her advocate could sit, and it proposed BS
be placed “where she’s not really in sight of the jury and still able to hear everything.” The
State then mentioned it thought BS “would like to be present and be visible.” Defense
counsel stated he would prefer BS sit in the chair her advocate had occupied during BS’s
testimony. Both BS and the advocate were present during closing arguments, although the
record is unclear on where they were seated.
Evidence Adduced at Trial
[¶13] BS testified she worked at a custom hat shop in Jackson, Wyoming, and she went
there on the afternoon of July 22, 2020, to hear a musician perform a private concert. When
she arrived, a group of her friends were already there. Mr. Tarpey arrived later. BS had
previously met Mr. Tarpey because she often went to the barbeque restaurant where he
worked as a bartender. The group stayed at the hat shop for 60–90 minutes drinking
alcohol, listening to music, and eating food. The group left the hat shop and went to Miller
Park to play a game, which BS referred to as “alcoball.” They later returned to the hat shop
and consumed more alcohol. The group then walked across the street to the Cowboy Bar,
where they consumed more alcohol. BS gave Mr. Tarpey her phone number because she
thought he wanted to be friends. The group left the Cowboy Bar after last call, and they
returned to the hat shop. Shortly thereafter, BS walked home alone.
[¶14] In the early hours of July 23, 2020, BS and Mr. Tarpey exchanged text messages
and decided he would come over to her house to smoke marijuana and watch a movie. BS
informed Mr. Tarpey she did not want to have sex, and he replied he “never said anything
about sex[.]” Mr. Tarpey then sent BS a message saying: “You better be naked when I
come in[.]” BS testified she did not take this message seriously, and she tried to treat it as
a joke by replying “lol naked[.]”
[¶15] Mr. Tarpey arrived at BS’s house around 2:00 a.m. BS testified Mr. Tarpey
appeared to be more intoxicated and “zombie-like.” Shortly after arriving, Mr. Tarpey
pulled BS down onto her bed and removed his clothing. Mr. Tarpey removed BS’s clothing
in a “slightly aggressive” manner. BS told Mr. Tarpey to “chill out” and asked him what
he was doing.
[¶16] He positioned her so that she was laying on her back on the left side of the bed and
got on top of her. She was not able to get up because he was a lot bigger than she was, he
was holding her down with his weight, and she was starting to get scared. Mr. Tarpey
8
attempted to have sexual intercourse with her, and he did not stop when she told him to
“chill out.” When Mr. Tarpey was unable to penetrate her, he struck BS on the right side
of her face with the heel of his hand and told her to “Take it, b*tch.”
[¶17] BS suggested they stop trying to have sex. He then grabbed her and repositioned
her while saying something that she took as a command to perform oral sex. BS submitted
to performing oral sex because she preferred that to being forced to have sexual intercourse
with him or being struck in the face again. While she was performing oral sex on Mr.
Tarpey, she felt him put his fingers inside her vagina. She did not want him to do this, and
she asked him to stop, but he did not stop.
[¶18] Mr. Tarpey then repositioned her, so she was straddling him. He struck her on the
right side of her face again with the heel of his hand. She then felt his penis penetrate her
vagina. Mr. Tarpey wrapped his hands around her thighs and pulled her legs down onto
his waist. Mr. Tarpey also bit her right ear. The assault lasted about 15 minutes, and it
ended when Mr. Tarpey passed out in her bed.
[¶19] BS did not reach out to anyone immediately after the assault because she did not
know who to call, she was in shock, and she did not know what to do. She eventually fell
asleep on her bed. They both awoke around 10:00 a.m. Mr. Tarpey told BS he was
hungover, and he then proceeded to place an online order for breakfast. BS wanted to get
him out of her house, so she drove him to pick up his breakfast. They shared a small,
strange embrace and parted ways. After she parted from Mr. Tarpey, BS drove home.
[¶20] Over the next couple of hours, BS and Mr. Tarpey exchanged the following text
messages:
[BS] Yo I am going to be very chill about this but that was
absolutely uncool. You need to understand that I said in
writing and out loud, I DO NOT want to have sex with you, I
wanted to get high and watch a movie. You didn’t even bring
weed after saying you would. I asked you to stop fingering me
multiple times. I literally was giving you head so that you
wouldn’t f*ck me or HIT ME IN THE FACE again. I have a
bruise on my face dog. You’re my homie so it’s all good we
can get juice together and sh*t but understand I was
uncomfortable and not in control whatsoever because you were
at my crib and I’m not the kinda person to ask one to leave.
This never gets talked about again and never happens again.
Mad love, enjoy your hangover!
[TARPEY] So sorry
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[TARPEY] That’s not who I am. I promise
[BS] No that is who you are. And you’re a lot bigger than me.
That was scary for me.
[TARPEY] I promise that’s not me. I feel so bad
[TARPEY] Can’t apologize enough
[TARPEY] Alcoball was not good for my knee. Walking
around like a geyser [sic] sh*t is throbbing so bad
[BS] stop texting me I don’t think you get what you did to me
last night
[BS] I do not f*ck with you. I kept it so cool just to get you
out of my f*cking house. Are you on pills or something?
[TARPEY] I’m not on pills I was really drunk. I’ll leave you
be. Sorry again
Later that day, BS reached out to a friend and told him what happened. BS did not think
about calling law enforcement immediately after the assault, but she did consider it in the
following days. On July 26, 2020, BS called the Jackson Police Department to report the
assault, and Sergeant Ruschill interviewed her by phone because she was too upset to come
to the station in person.
[¶21] After BS’s direct testimony, but before she was cross-examined, the State moved to
introduce the recording of her phone interview with Sergeant Ruschill into evidence.
Defense counsel did not object, and the district court admitted the recording. The State
then started playing the 42-minute recording for the jury. The State stopped playing the
recording approximately 33 minutes into the video and requested a bench conference. The
State offered not to play the rest of the recording. Defense counsel stated he stipulated to
the admission of the recording, and he insisted the entire recording be played to the jury.
The district court stated:
Well, by stipulating to this going into evidence I would think
that the defendant would be giving up any objections and
appeal issues on this. . . . But it’s already been stipulated to. I
don’t know that on a plain error standard, I’m not sure that it
violates any unequivocal rule of law. So, I think it’s okay. So,
I’ll go ahead with the stipulation and allow it to be played, but
appreciate your heads-up on that.
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[¶22] In her recorded interview, BS told Sergeant Ruschill she had been sexually assaulted
by Mr. Tarpey. Sergeant Ruschill told her he was going to ask her questions, he would
believe everything she told him, and she was in complete control and could end the
interview at any time. Most of what BS told Sergeant Ruschill was consistent with her trial
testimony. However, she told him that Mr. Tarpey did penetrate her once before he forced
her to perform oral sex. BS also told Sergeant Ruschill she had been laid off from her job
in Colorado due to Covid-19, and she was not working in Wyoming. She also stated she
did not know Mr. Tarpey well, and she did not know where he worked.
[¶23] On cross-examination, defense counsel attacked BS’s credibility with portions of
her recorded statement. BS admitted that at the time she was interviewed by Sergeant
Ruschill, she did indeed know where Mr. Tarpey worked, and she had met him on
numerous occasions before July 22, 2020. BS also admitted she lied to Sergeant Ruschill
about being unemployed. BS testified she was collecting unemployment from Colorado,
and she was nervous to tell law enforcement she was also being paid in cash under the table
while in Wyoming because she thought she might get in trouble. Defense counsel also
asked BS if she used any drugs on the night of the alleged assault. BS initially denied using
drugs before admitting she used cocaine with Mr. Tarpey at the hat shop that night.
[¶24] A Sexual Assault Nurse Examiner [SANE] examined BS at the emergency room on
July 27, 2020. The sequence of events BS relayed to the nurse differed slightly from what
she had told Sergeant Ruschill and her trial testimony. BS told the nurse Mr. Tarpey did
penetrate her while he was on top of her, he then repositioned her so she was on top of him,
before repositioning her again and commanding her to perform oral sex. BS told the nurse
Mr. Tarpey grabbed her legs when he was trying to force himself in her, bit her right ear,
and grabbed her neck. The nurse observed, measured, and made note of the injuries on
BS’s body. The nurse observed bruising on the back of BS’s thighs, a bruise above her left
knee, a scratch on her left thigh, a bruise on her right cheekbone, a red area on the right
side of her neck that was painful to the touch, and a red area behind her right ear with a
small scab.
[¶25] Mr. Tarpey testified after he arrived at BS’s house, they attempted to engage in
consensual sexual intercourse, and the encounter ended when he could not perform
sexually. He denied grabbing BS by her thighs or holding her down. He also denied hitting
BS in the face and calling her a b*tch. He said BS never told him to stop or chill out, nor
did she say she did not want to have sex. He testified when he replied to her messages by
saying he was sorry, he was not apologizing. Instead, he was reaching out to her for an
explanation because he did not understand the allegations she was making against him.
[¶26] In his closing argument, defense counsel pointed out several things that called BS’s
credibility into question: she lied about not knowing Mr. Tarpey before that night; she lied
about not knowing where he worked; she lied about her drug use; and she lied about
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working and getting paid under the table while collecting unemployment. Defense counsel
also asked the jury to consider how BS’s statements to Sergeant Ruschill and the SANE
nurse differed from her trial testimony, and he claimed the “core details” were different in
each account.
[¶27] The jury found Mr. Tarpey guilty of sexual assault in the first degree. Mr. Tarpey
was subsequently sentenced to imprisonment for not less than 10 nor more than 15 years.
He timely appealed his conviction and sentence.
Motion for a New Trial
[¶28] While his direct appeal was pending, Mr. Tarpey filed a motion for a new trial based
on ineffective assistance of trial counsel pursuant to Rule 21 of the Wyoming Rules of
Appellate Procedure (W.R.A.P.). We stayed his first appeal pending the district court’s
decision on his W.R.A.P. 21 motion.
[¶29] Mr. Tarpey’s W.R.A.P. 21 motion set forth six grounds he asserted constituted
ineffective assistance of counsel: 1) trial counsel misunderstood the rules of evidence
regarding the admission of character evidence; 2) trial counsel stipulated to the admission
of the recording of BS’s phone interview with Sergeant Ruschill and allowed it to be played
in open court; 3) trial counsel stipulated to the victim’s advocate sitting next to the BS
during her testimony, and did not object to the prosecutor telling the jury the advocate was
present in a supportive role; 4) trial counsel stipulated or failed to object to nearly the
entirety of the State’s case; 5) trial counsel did not adequately prepare Mr. Tarpey to testify;
and 6) if no ground in itself was found to be ineffective assistance, when taken together,
they amounted to ineffective assistance of counsel that prejudiced Mr. Tarpey. Mr. Tarpey
attached an affidavit to his motion, which set forth his allegations relating to his trial
counsel’s misunderstanding of character evidence and his opinion as to how he was
inadequately prepared to testify.
[¶30] Prior to the hearing on his W.R.A.P. 21 motion, Mr. Tarpey filed a witness list,
which indicated he intended to call three witnesses who were expected to testify about “Mr.
Tarpey’s reputation for character traits pertinent to the charges in this case and his theory
of defense, such as peacefulness, truthfulness, and respect for women.” Mr. Tarpey
attached “declarations” from these character witnesses to his witness list.
[¶31] Mr. Tarpey did not testify at the W.R.A.P. 21 hearing, and the district court agreed
to consider the portions of his affidavit that were based on his personal knowledge and
complied with the requirements for an affidavit under Rule 56 of the Wyoming Rules of
Civil Procedure. Mr. Tarpey called his trial counsel as a witness at the hearing. Mr. Tarpey
also offered testimony from a retained expert who opined he was prejudiced by trial
counsel’s errors. Mr. Tarpey did not call any of the character witnesses to testify at the
hearing, nor did he make an offer of proof as to what their testimony would have been.
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The district court ruled it would not consider the declarations from these witnesses that
were attached to the witness list.
[¶32] The district court denied the W.R.A.P. 21 motion and found Mr. Tarpey “failed to
show that his constitutional rights to assistance of effective counsel were violated and/or
fail[ed] to prove that he was prejudiced” by any of trial counsel’s alleged deficiencies. Mr.
Tarpey timely appealed the district court’s order denying his W.R.A.P. 21 motion, and we
consolidated his appeals.
DISCUSSION
I. Did the district court violate Mr. Tarpey’s Sixth Amendment right to a public
trial?
[¶33] Mr. Tarpey claims the district court violated his right to a public trial under the Sixth
Amendment to the United States Constitution. “We review the constitutional issue de
novo.” Dugan v. State, 2019 WY 112, ¶ 52, 451 P.3d 731, 746 (Wyo. 2019) (citing Kramer
v. State, 2012 WY 69, ¶ 18, 277 P.3d 88, 93 (Wyo. 2012)). “Constitutional errors are
presumed prejudicial, unless this Court is convinced the error was harmless beyond a
reasonable doubt.” Anderson v. State, 2014 WY 74, ¶ 17, 327 P.3d 89, 94–95 (Wyo. 2014)
(citing West v. State, 2013 WY 128, ¶ 12, 311 P.3d 157, 160 (Wyo. 2013)). Mr. Tarpey
asserts “[t]he court’s selective closure [of the courtroom] to all but BS and her advocate
violated [his] right to a public trial[,]” which “constitutes structural error and requires
automatic reversal and remand for a new trial.” The State asserts Mr. Tarpey waived his
right to challenge the use of the audio broadcast.
[¶34] A structural error “is a defect ‘affecting the framework within which the trial
proceeds, rather than simply errors in the trial process itself.’” Anderson, ¶ 20, 327 P.3d at
95 (citing Granzer v. State, 2008 WY 118, ¶ 16, 193 P.3d 266, 271 (Wyo. 2008)). “Errors
of this type are so intrinsically harmful as to require automatic reversal without regard to
their effect on the outcome.” Id. (quoting United States v. Pearson, 203 F.3d 1243, 1260
(10th Cir. 2000)). We have held “[t]he bar for finding structural error is high.” Id. at ¶ 21,
327 P.3d at 95.
[¶35] While we have not had the opportunity to address this issue, the Supreme Court of
the United States has held the denial of a public trial is structural error. Id. at ¶ 21, 327 P.3d
at 95 (citing Waller v. Georgia, 467 U.S. 39, 104 S. Ct. 2210, 81 L. Ed. 2d 31 (1984)). In
Waller, the Supreme Court of the United States recognized the right to a public trial was
created for the benefit of the accused. Waller, 467 U.S. at 46, 104 S. Ct. at 2215 (quoting
Gannett Co. v. DePasquale, 443 U.S. 368, 380, 99 S. Ct. 2898, 2905, 61 L. Ed. 2d 608(1979)). When a trial is open to the public, they “may see [a defendant] is fairly dealt with
and not unjustly condemned, and [] the presence of interested spectators may keep his triers
keenly alive to a sense of their responsibility and to the importance of their functions.” Id.
13
(quoting Gannett, 443 U.S. at 380, 99 S. Ct. at 2906). An open trial also “encourages
witnesses to come forward and discourages perjury.” Id. (citing In re Oliver, 333 U.S. 257,
270 n.24, 68 S. Ct. 499, 506 n.24, 92 L. Ed. 682 (1948)).
[¶36] The right to a public trial is not absolute. United States v. Allen, 34 F. 4th 789, 796
(9th Cir. 2022) (citing United States v. Yazzie, 743 F.3d 1278, 1286 (9th Cir. 2014)). The
Supreme Court of the United States “has made clear that the right to an open trial may give
way in certain cases to other rights or interests, such as the defendant’s right to a fair trial
or the government’s interest in inhibiting disclosure of sensitive information.” Waller, 467
U.S. at 45, 104 S. Ct. at 2215. The Waller court noted that such circumstances would be
rare, “and the balance of interests must be struck with special care.” Id. at 45, 104 S. Ct. at
2215.
The presumption of openness may be overcome only by an
overriding interest based on findings that closure is essential to
preserve higher values and is narrowly tailored to serve that
interest. The interest is to be articulated along with findings
specific enough that a reviewing court can determine whether
the closure order was properly entered.
Id. (quoting Press–Enter. Co. v. Superior Court of Cal., 464 U.S. 501, 510, 104 S. Ct. 819,
824, 78 L. Ed. 2d 629 (1984)). Waller announced the following test for determining
whether a trial may be closed to the public:
[T]he party seeking to close the hearing must advance an
overriding interest that is likely to be prejudiced, the closure
must be no broader than necessary to protect that interest, the
trial court must consider reasonable alternatives to closing the
proceeding, and it must make findings adequate to support the
closure.
Id. at 48, 104 S. Ct. at 2216.
[¶37] Preventing the spread of Covid-19 is unquestionably a compelling interest. Roman
Cath. Diocese of Brooklyn v. Cuomo, ____ U.S. _____, 141 S. Ct. 63, 67, 208 L. Ed. 2d.
206 (2020). We must determine whether using the audio broadcast was narrowly tailored
and no broader than necessary to protect that interest. Waller, 467 U.S. at 48, 104 S. Ct. at
2216. “In considering whether a burden imposed on a constitutional right is narrowly
tailored, [courts] consider[], among other things, ‘different methods that other jurisdictions
have found effective’ in addressing the problem ‘with less intrusive tools.’” Allen, 34 F.4th
at 797 (quoting McCullen v. Coakley, 573 U.S. 464, 494, 134 S. Ct. 2518, 2539, 189 L. Ed.
2d. 502 (2014)). “The existence of reasonable alternatives also sheds light on whether
closure restrictions are narrowly tailored.” Id. at 798.
14
[¶38] Mr. Tarpey asks us to follow the approach used by the Ninth Circuit in Allen and
find providing an audio-only broadcast violated his right to a public trial. In Allen, the
federal district court’s Covid-19 protocols “precluded members of the public from entering
the courtroom[] and gave them access to the proceedings only by streaming audio over the
internet.” Allen, 34 F.4th at 793. Mr. Allen objected to this protocol asserting it violated
his Sixth Amendment right to a public trial, and his counsel advocated for video streaming
the trial. Id. The trial court overruled Mr. Allen’s objection. Id. at 794. The Ninth Circuit
found the district court erred because it did not consider less restrictive alternatives, such
as video streaming, and it did not articulate any unique reasons for its more restrictive
order. Id. at 798–800. However, the Ninth Circuit did not hold using an audio broadcast
always violates a defendant’s right to a public trial. Rather, it stated:
[W]e emphasize that an order prohibiting the public’s visual
access to the trial . . . will not always violate the defendant’s
public trial right. Certain interests . . . may be so compelling
that prohibiting the public’s observation of some or all of the
proceedings may be warranted. . . . And where a prohibition
on the public’s presence at a trial or hearing is no broader than
necessary to achieve a compelling interest . . . [an] audio
recording may be sufficient to satisfy the public trial right[.]
Id. at 800 (internal citations omitted).
[¶39] In another recent case involving this issue, the Supreme Court of Iowa reversed a
defendant’s conviction after finding his right to a public trial was violated by the trial
court’s complete closure of the courtroom to the public, including the defendant’s family.
State v. Brimmer, No. 21-0744, 2022 WL 17835685 (Iowa Dec. 22, 2022). Mr. Brimmer’s
trial was originally scheduled for March 31, 2020, but due to the pandemic, his trial was
continued multiple times. Id. at *1. In response to the pandemic, the Supreme Court of
Iowa “issued guidance on how to safely resume in-person trials while still honoring
defendants’ constitutional rights, including the right to an open trial.” Id. at *3. This
guidance required trial courts to maintain six feet of distance between persons in the
courtroom, which meant public attendance would be limited. Id. If social distancing
resulted in having no room available for the public, trial courts were directed to “set up live
feeds of public court proceedings in another room in the courthouse (or, as necessary,
streaming online or by videoconference) to permit simultaneous viewing.” Id. (quoting
Iowa Sup. Ct. Supervisory Order, In the Matter of Resuming In Person Court Services
During COVID-19 (July 9, 2020)).
[¶40] After the trial court seated the venire members, there was still a little room for public
spectators. 2022 WL 17835685, at *3. Mr. Brimmer requested his family and friends be
allowed to attend the trial in person, but the trial court denied his request after concluding
15
any public observers would be seated too close to the jurors “for the court’s liking.” Id. at
*1. However, the trial court did allow the victim’s advocate to sit in the jury box at the
state’s request. Id. at *4. The trial court “explained that the advocate had ‘a purpose with
this trial’ and was not considered part of the public.” Id. The trial court also dismissed the
option of electronically livestreaming the trial because “the judge couldn’t navigate the
technology by himself.” Id. at *1, *4. Just before voir dire, defense counsel “again brought
up [Mr. Brimmer’s] right to a public trial, ‘requesting that the public be allowed in’ and
objecting if it was not.” Id. at *3. The trial court overruled this objection. Id. Ultimately,
the courtroom was completely closed to public spectators for the entire trial, and no
electronic recording or livestream was made available so the public could watch remotely.
Id. at *4. The Supreme Court of Iowa found the “complete ‘closure was far more extensive
than necessary.’” Id. at *11 (quoting Waller, 467 U.S. at 49, 104 S. Ct. at 2217). It went
on to find the trial court had not complied with its obligations under Waller. Id. at *12–
*16. It further found the trial court “had available a reasonable alternative to cutting off
all public view of Brimmer’s trial, and it violated his right to a public trial when it failed to
use that alternative.” Id. at *16. The Supreme Court of Iowa stated: “No solution to the
COVID conundrum was ideal. But simply closing Brimmer’s trial to the public violated
his constitutional rights, and that structural error entitles him to a new trial.” Id. at *1.
[¶41] Turning to the case before us, the record reflects the district court was cognizant of
its obligations under Waller. The district court considered several alternatives to a
complete closure, including video streaming the trial on YouTube or through the court’s
video conference system. However, it found video streaming the trial was not workable
because the size of the courtroom made it difficult to place the video equipment in a
location where it could capture both the witnesses and the attorneys. The district court
specifically stated it “considered the other available options,” and it found “the live
audiostream [was] the only feasible and practical option. . . . ”
[¶42] Unlike Allen or Brimmer, the district court specifically articulated its reasoning for
physically closing the courtroom to the public, it attempted to narrowly tailor the closure,
it considered all available alternatives, and it implemented the least restrictive, available
option to provide virtual public access to the trial. In addition, at the beginning of the trial,
the district court informed the jury Mr. Tarpey was constitutionally entitled to a public trial,
explained why the courtroom was not open to members of the public, and notified them
the trial was being broadcast so the public and the press could listen to the trial. This
announcement showed the district court was attempting to comply with the purposes of a
public trial. The public could listen in to ensure Mr. Tarpey was being “fairly dealt with,”
and the jurors’ knowledge that “spectators” were monitoring the trial kept them aware of
their responsibility and the importance of their function. Waller, 467 U.S. at 46, 104 S. Ct.
at 2215 (quoting Gannett, 443 U.S. at 380, 99 S. Ct. at 2906). We find the district court
complied with Waller, and it did not commit structural error when it balanced Mr. Tarpey’s
right to a public trial against the overriding and compelling interest of preventing the spread
of Covid-19 and implemented the least restrictive option for physically closing the
16
courtroom to the public while allowing virtual public access to the trial.
[¶43] In addition, although we have not had a chance to address the issue, other
jurisdictions have held a defendant can waive his right to a public trial. See Singer v. United
States, 380 U.S. 24, 35, 85 S. Ct. 783, 790, 13 L. Ed. 2d 630 (1965) (recognizing a
defendant can “under some circumstances” waive his constitutional right to a public trial);
Levine v. United States, 362 U.S. 610, 619, 80 S. Ct. 1038, 1044, 4 L. Ed. 2d 989 (1960)
(holding the exclusion of the public did not violate due process because there was no
request to open the courtroom); United States v. Christi, 682 F.3d 138, 142–43 (1st Cir.
2012) (holding the defendant waived his public trial argument because defense counsel
knew about the closure and failed to object to the closure); Hutchins v. Garrison, 724 F.2d
1425, 1431–32 (4th Cir. 1983) (holding the defendant knowingly and intelligently waived
his right to a public trial); Martineau v. Perrin, 601 F.2d 1196, 1199–1200 (1st Cir. 1979)
(holding petitioner and his counsel knowingly and deliberately waived his right to a public
trial when they made a conscious decision not to object to the closure); Commonwealth v.
Wall, 15 N.E.3d 708, 725 (Mass. 2014) (holding “the right to a public trial may be
procedurally waived whenever a litigant fails to make a timely objection to an error[,]” and
defense counsel could waive a public trial as a “tactical decision without the defendant’s
express consent”); State v. Butterfield, 784 P.2d 153, 155–57 (Utah 1989) (finding
defendant waived his right to a public jury trial by failing to object to a closure order).
[¶44] In this case, Mr. Tarpey knew about the district court’s plan to partially close the
courtroom, and he never objected to that partial closure or to the use of the audio broadcast,
even though he had multiple opportunities to do so. The district court’s scheduling order
put Mr. Tarpey on notice the trial would be subject to Covid-19 protocols, and it set a
deadline for Mr. Tarpey to object to those protocols. Mr. Tarpey did not file any objection
to those protocols. During a pretrial hearing, the district court informed the parties it would
be using the audio broadcast to provide public access, and although defense counsel
expressed concerns that this might make it difficult to sequester the witnesses, he did not
object to using the audio broadcast. At the end of voir dire, the district court again
reminded the parties it intended to provide public access through the audio broadcast, and
Mr. Tarpey did not object. Under the facts of this case, we find Mr. Tarpey waived his
right to a public trial.
[¶45] Mr. Tarpey also takes issue with the fact that BS and her advocate were allowed to
be in the courtroom during closing arguments, while Mr. Tarpey was not allowed to have
a family member or friend attend the trial. Defense counsel did not object to BS or the
advocate being present for BS’s testimony or during closing arguments, and he indicated
he believed it would be appropriate to allow BS to be present if she was cautioned not to
display any emotions during the closings. Mr. Tarpey’s brief does not contain a citation to
anywhere in the record where he asked the district court to permit a family member or
friend be present for all or a portion of his trial.
17
[¶46] The Supreme Court of the United States has recognized:
Due regard generally for the public nature of the judicial
process does not require disregard of the solid demands of the
fair administration of justice in favor of a party who, at the
appropriate time and acting under advice of counsel, saw no
disregard of a right, but raises an abstract claim only as an
afterthought on appeal.
Levine, 362 U.S. at 619-20, 80 S. Ct. at 1044. Unlike the defendant in Brimmer, Mr. Tarpey
never asserted the district court was violating his right to a public trial by not allowing him
to have a family member or friend present during all or a portion of the trial. He was
repeatedly advised his family members and friends would have to attend the trial remotely,
and he never objected to this or any other of the district court’s Covid-19 protocols.
[¶47] We “strongly adhere[] to the rule that [we] will not address issues that were not
properly raised before the district court.” Harrison v. State, 2021 WY 40, ¶ 15, 482 P.3d
353, 358 (Wyo. 2021) (quoting Four B Props., LLC v. Nature Conservancy, 2020 WY 24,
¶ 69, 458 P.3d 832, 849 (Wyo. 2020)). Even when the newly raised issue presents a
constitutional question, “we have held that a new issue may not be considered on appeal
even when it is ‘of a fundamental nature, because the issue was ‘not properly developed
for review.’” Davis v. State, 2018 WY 40, ¶ 34, 415 P. 3d 666, 678 (Wyo. 2018) (quoting
Crofts v. State ex rel. Dept. of Game and Fish, 2016 WY 4, ¶ 24, 367 P.3d 619, 625 (Wyo.
2016)). Because Mr. Tarpey never asked to have a family member or friend present, and
the district court never had an opportunity to grant or deny this request, this issue was not
properly developed for review, and we will not address it.
[¶48] We find the district court did not violate Mr. Tarpey’s Sixth Amendment right to a
public trial, and he waived his right to a public trial.
II. Was it plain error to admit the recording of Sergeant Ruschill’s phone interview
of BS?
[¶49] Mr. Tarpey asserts the district court committed plain error when it allowed BS’s
recorded interview to be played at the end of her testimony, prior to cross-examination and
without any allegation of recent fabrication or improper motive. The State alleges Mr.
Tarpey knowingly and affirmatively waived any argument regarding the admissibility of
the recorded interview when he stipulated to its admission. We agree with the State.
[¶50] “We reject attempts by a defendant to turn a trial strategy into an appellate error.”
Mackley v. State, 2021 WY 33, ¶ 11, 481 P.3d 639, 642 (Wyo. 2021) (quoting Toth v. State,
2015 WY 86A, ¶ 45, 353 P.3d 696, 710 (Wyo. 2015)). “The doctrine of invited error
prohibits a party from raising on appeal alleged trial court errors that were induced by that
18
party’s actions.” Id. (quoting Jackson v. State, 2019 WY 81, ¶ 9, 445 P.3d 983, 986 (Wyo.
2019)). “When a party affirmatively waives a right or objection, we do not review it;
however, when a party merely forfeits a right or objection, we review for plain error.” Id.(citing Jackson, ¶ 9, 445 P.3d at 987). “Waiver is the ‘intentional relinquishment or
abandonment of a known right[,]’” while “[f]orfeiture is the failure to make a timely
assertion of a right.” Id. (quoting Jackson, ¶ 9, 445 P.3d at 987). “Waiver requires
something more affirmative than simple agreement. . . .” Id. at ¶ 13, 481 P.3d at 643 (citing
Jackson, ¶ 9, 445 P.3d at 987).
[¶51] The record shows Mr. Tarpey did more than simply agree to the admission of BS’s
recorded statement. He stipulated to its admission before trial, and he affirmatively insisted
the entire recording be played for the jury. The district court advised Mr. Tarpey that by
stipulating to the admission of the recording, he “would be giving up any objections and
appeal issues” relating to its admission.
[¶52] At the hearing on the W.R.A.P. 21 motion, trial counsel testified he knew the
recording was hearsay, but he made a strategic decision to stipulate to its admission because
he believed it supported their theory of defense, and it created credibility issues that could
be brought up on cross-examination. Trial counsel did in fact question BS about those
issues at trial, and he was able to get BS to admit she lied to law enforcement about her
employment status, not knowing Mr. Tarpey or where he worked, and her use of illicit
drugs. Admitting the recording also allowed him to argue to the jury that the core details
of BS’s story changed in each interview. Stipulating to the admission of the recorded
statement was an “act of such independent intent” that we must “view it as a complete
waiver of the error now alleged on appeal.” Mackley, 2021 WY 33, ¶ 12, 481 P.3d at 642
(quoting Vaught v. State, 2016 WY 7, ¶ 35, 366 P.3d 512, 520 (Wyo. 2016)); see also
Stastny v. State, 2011 WY 138, ¶ 4, 261 P.3d 747, 748 (Wyo. 2011) (holding abuse of
discretion and plain error standards of review are inapplicable “where the appellant has not
only failed to object at trial, but has affirmatively acted to introduce or allow introduction
of the evidence”). We will not allow Mr. Tarpey to turn this trial strategy into appellate
error, and we find Mr. Tarpey waived any appellate argument regarding the admissibility
of BS’s recorded statement.
III. Did Mr. Tarpey receive ineffective assistance of counsel?
[¶53] Mr. Tarpey asserts he received ineffective assistance of counsel due to a
combination of pretrial and trial deficiencies. He argues “it was not a reasonable tactical
decision to stipulate to the admission of BS’s recorded interview . . . especially prior to
trial.” He also asserts trial counsel’s performance was deficient in not objecting to the
presence of the victim’s advocate during BS’s testimony and in not objecting to the
prosecutor’s statement explaining the reason for the advocate’s presence. Finally, he
claims trial counsel’s performance was deficient because he did not understand the
Wyoming Rules of Evidence (W.R.E.) pertaining to character evidence. The State
19
contends “all of the challenged decisions were reasonable tactical decisions that did not
fall below the standards for a reasonably competent attorney[,]” and Mr. Tarpey cannot
establish he was prejudiced by these alleged errors.
[¶54] To succeed on his claim that he is entitled to a new trial because he was denied his
Sixth Amendment right to effective assistance of counsel, Mr. Tarpey “must show both
that [his] counsel’s performance was deficient, and he was prejudiced as a result.”
Buckingham v. State, 2022 WY 99, ¶ 25, 515 P.3d 615, 619 (Wyo. 2022) (quoting Steplock
v. State, 2022 WY 12, ¶ 20, 502 P.3d 930, 936 (Wyo. 2022)). “A failure to establish one
of the two prongs dooms an ineffective assistance of counsel claim.” Steplock, ¶ 20, 502
P.3d at 937 (quoting Neidlinger v. State, 2021 WY 39, ¶ 53, 482 P.3d 337, 351–52 (Wyo.
2021)). “We may dispose of an ineffective assistance of counsel claim solely on the
prejudice prong.” Id. at ¶ 22, 502 P.3d at 937 (quoting Jendresen v. State, 2021 WY 82,
¶ 37, 491 P.3d 273, 285 (Wyo. 2021)). “Appeal of a district court’s ruling on a W.R.A.P.
21 motion involves mixed questions of law and fact.” Buckingham, ¶ 26, 515 P.3d at 619
(citing Steplock, ¶ 20, 502 P.3d at 937). “The district court’s factual findings are entitled
to deference unless they are clearly erroneous, but we review de novo the court’s legal
conclusions on deficient performance and prejudice.” Id. (citing Steplock, ¶ 20, 502 P.3d
at 937).
[¶55] We dispose of Mr. Tarpey’s claim under the prejudice prong. To establish
prejudice, Mr. Tarpey “must show that absent defense counsel’s deficiencies ‘there is a
reasonable probability the outcome of the trial would have been more favorable to [him.]’”
Steplock, ¶ 22, 502 P.3d at 937 (citing Richmond v. State, 2021 WY 111, ¶ 12, 496 P.3d
777, 781 (Wyo. 2021)). “A claim of prejudice must be supported by more than bald
assertions or speculation.” Id. at ¶ 26, 502 P.3d at 938 (quoting Jackson, 2019 WY 81,
¶ 28, 445 P.3d at 991). Mr. Tarpey “must show prejudice under ‘circumstances which
manifest inherent unfairness and injustice or conduct which offends the public sense of fair
play.’” Klingbeil v. State, 2021 WY 89, ¶ 43, 492 P.3d 279, 288–89 (Wyo. 2021) (quoting
McGinn v. State, 2015 WY 140, ¶ 13, 361 P.3d 295, 299 (Wyo. 2015)). When determining
if Mr. Tarpey was prejudiced, we review the entire record. Klingbeil, ¶ 44, 492 P.3d at 289
(quoting Hathaway v. State, 2017 WY 92, ¶ 33, 399 P.3d 625, 634–35 (Wyo. 2017)). “The
most important factor in our prejudice analysis is the strength of the State’s case.” Shields
v. State, 2020 WY 101, ¶ 40, 468 P.3d 1097, 1108 (Wyo. 2020) (citing Bogard v. State,
2019 WY 96, ¶ 72, 449 P.3d 315, 332 (Wyo. 2019)).
A. Stipulating to the Admission of BS’s Recorded Statement
[¶56] Mr. Tarpey asserts he was prejudiced by trial counsel’s stipulation to the admission
of this evidence because playing the interview bolstered BS’s credibility and allowed law
enforcement to vouch for her credibility. The State argues Mr. Tarpey was not prejudiced
by trial counsel’s decision to stipulate to the admission of the recording because it allowed
him to attack BS’s credibility and argue to the jury that the core details of BS’s allegation
20
became more dramatic each time she told her story.
[¶57] As discussed above, trial counsel made a tactical decision to admit the recording
because he thought it helped establish their theory that the sex was consensual. He felt it
was important for the jury to know BS delayed in reporting the incident, and the
information she provided to Sergeant Ruschill was incomplete and inaccurate. He wanted
to use the details of her statement to cross-examine her about the inconsistencies in her
stories. Trial counsel also testified he had some concerns about letting BS tell her story
twice, but there was an “abundance of evidence” in the case, and he considered all that
evidence, including the text messages, when he made the tactical decision to admit the
recording. The district court found trial counsel’s stated justifications for stipulating to the
admission of the exhibit were “presumptively sound” at the time the decision was made,
even though many of the reasons for playing the recording were not realized at the time he
cross-examined BS. The district court concluded Mr. Tarpey failed to show he was
prejudiced by trial counsel’s tactical decision.
[¶58] We have said: “[w]hen trial counsel makes a ‘strategic decision’ in a case, that
decision is ‘virtually unchallengeable.’” Neidlinger, 2021 WY 39, ¶ 56, 482 P.3d at 352
(quoting Larkins v. State, 2018 WY 122, ¶ 67, 429 P.3d 28, 44 (Wyo. 2018)). “The fact
that this strategy was ultimately unsuccessful does not require a holding of ineffective
assistance of counsel.” Owen v. State, 902 P.2d 190, 199 (Wyo. 1995), overruled on other
grounds by Sweets v. State, 2013 WY 98, ¶ 50, 307 P.3d 860, 876 (Wyo. 2013). In addition,
“[a]n unfavorable verdict does not equate to ineffective assistance of counsel.” Larkins,
2018 WY 122, ¶ 67, 429 P.3d at 44 (citing Woods v. State, 2017 WY 111, ¶ 15, 401 P.3d
962, 969 (Wyo. 2017)).
[¶59] In this case, BS testified in detail about how Mr. Tarpey sexually assaulted her.
During this testimony, she stated Mr. Tarpey struck her twice on the right side of her face,
wrapped his hands around her thighs to hold her down, and bit her right ear. The SANE
nurse testified she observed injuries that were consistent with BS’s testimony. The jury
saw the string of text messages between BS and Mr. Tarpey, including those where he
appears to apologize for what happened.
[¶60] Because the physical evidence supported BS’s version of events, trial counsel
needed to challenge BS’s credibility. Playing BS’s recorded statement permitted the jury
to hear the inconsistencies in the “core details” of her story and allowed trial counsel to
elicit BS’s admissions about lying to law enforcement. “[A] ‘jury’s rejection of the defense
strategy does not necessarily demonstrate ineffective assistance of counsel but merely a
defense strategy that the jury did not accept.’” Woods, 2017 WY 111, ¶ 15, 401 P.3d at 969
(quoting Barkell v. State, 2002 WY 153, ¶ 22, 55 P.3d 1239, 1244 (Wyo. 2002)). Mr.
Tarpey failed to establish a reasonable probability he would have enjoyed a more favorable
verdict if the recording had not been admitted. Because Mr. Tarpey failed to establish
prejudice, this ineffective assistance of counsel claim fails.
21
B. Not Objecting to the Presence of the Advocate
[¶61] Mr. Tarpey asserts there was no strategic reason for trial counsel not to object to the
presence of BS’s advocate or to the prosecutor’s statement about the reason for her
presence. He argues the presence of the advocate showed “the jury that BS [was] in fact a
victim and ha[d] been so victimized that she [could] not testify without emotional support.”
He alleges it sent a “powerful, court and State approved message that [BS was] fragile and
vulnerable because [she] had been victimized.” The State asserts trial counsel “exercised
reasonable professional judgement [sic]” when he decided not to object to the advocate’s
presence.
[¶62] At the hearing on the W.R.A.P. 21 motion, trial counsel testified he agreed to let the
advocate be present because he thought it was required by the Victim’s Bill of Rights. He
also stated he knew from personal experience that a victim’s advocate is always present in
the courtroom during a victim’s testimony, and due to the structure of the courtroom during
Covid-19, there was no other place for the advocate to sit. He did not object to the
announcement regarding the reason for her presence, nor did he request a limiting
instruction. In its order denying the W.R.A.P. 21 motion, the district court found: “The
Defendant’s claim of prejudice on this issue is founded upon nothing more than ‘bald
assertions or speculation.’” The district court concluded Mr. Tarpey failed to meet his
burden of proving there was a reasonable probability he would have enjoyed a more
favorable verdict if the advocate had not been present.
[¶63] We agree with the district court. The only evidence Mr. Tarpey offered to support
his claim regarding the advocate’s presence was the opinion of his expert witness, who
opined the presence of the advocate was “hugely prejudicial” to the defense because it sent
a clear message that BS was a victim. The expert did not offer any evidence to show it was
reasonably probable an objection to the advocate’s presence would have been sustained.
Given the evidence presented at trial, which the trial court described as substantial and trial
counsel described as abundant, we cannot say there is a reasonable probability Mr. Tarpey
would have enjoyed a more favorable outcome if the advocate had not been present.
Because Mr. Tarpey failed to establish prejudice, this ineffective assistance of counsel
claim fails.
C. Not Calling Character Witnesses
[¶64] Shortly before the trial, Mr. Tarpey sent defense counsel a list of potential character
witnesses. Defense counsel informed Mr. Tarpey the Wyoming Rules of Evidence would
not allow them to introduce any character evidence unless the State first attacked his
reputation for truthfulness. Defense counsel also sent Mr. Tarpey an email in which he
discussed portions of W.R.E. 404, while omitting any discussion of W.R.E. 404(a)(1),
which allows a defendant to offer evidence of a “pertinent trait” of his character.
22
[¶65] Mr. Tarpey asserts his trial counsel misunderstood the rules pertaining to character
evidence, and because of that misunderstanding, defense counsel did not call any character
witnesses at trial. He asserts there were “multiple witnesses who would have testified in
this case about Mr. Tarpey’s pertinent character trait of peacefulness and respect for
boundaries in intimate situations,” and “there is a reasonabl[e] probability that the outcome
of the trial would have been more favorable” if those witnesses had testified. The State
asserts “when considering the potential consequences of opening the door to the character
evidence, [Mr.] Tarpey cannot show that his attorney’s decision was unreasonable[,] nor
can he show that presenting character evidence would have changed the trial outcome.”
[¶66] At the hearing on the W.R.A.P. 21 motion, trial counsel admitted he did not fully
understand the rules pertaining to character evidence, and he did not fully or accurately
explain these rules to Mr. Tarpey. However, trial counsel also testified he decided not to
call character witnesses because he uncovered some information suggesting Mr. Tarpey
had anger and substance abuse issues, which could have come out if he called character
witnesses. Trial counsel spoke to Mr. Tarpey’s mother, who informed him Mr. Tarpey’s
girlfriend would testify he changed and became angry when he drank. Mr. Tarpey told
trial counsel not to call his girlfriend as a witness, and the girlfriend told trial counsel she
did not want to testify. In addition, an investigator for the Sheriff’s Office contacted one
of Mr. Tarpey’s previous coworkers, who told the investigator she thought Mr. Tarpey was
abusive, he had been rude to her at work, and he was hotheaded, touchy, and creepy.
Another witness, who was a good friend of Mr. Tarpey, told trial counsel “things happen
when people drink” and he was on BS’s side. Armed with this knowledge, trial counsel
decided not to call character witnesses.
[¶67] Mr. Tarpey did not call any of the proposed character witnesses to testify at the
hearing on his W.R.A.P. 21 motion, nor did he make an offer of proof as to what those
witnesses would have said. The district court found trial counsel “faced legitimate
concerns in ‘opening the door’ on character and credibility issues,” and Mr. Tarpey “fell
short of proving” trial counsel’s decision not to call character witnesses could not be
considered sound trial strategy or that he was prejudiced by this decision.
[¶68] When reviewing claims that counsel was ineffective for not calling certain witnesses
we have held:
The decision not to call witnesses is a strategic choice. In order
to successfully show ineffective assistance of counsel, the
appellant must present the facts about which the proposed
witnesses would have testified. The decision whether to call
witnesses is normally within the judgment of counsel and will
rarely be second-guessed through appellate hindsight.
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Richmond, 2021 WY 111, ¶ 24, 496 P.3d at 783 (quoting Byerly v. State, 2019 WY 130,
¶ 92, 455 P.3d 232, 255-56 (Wyo. 2019). Mr. Tarpey failed to present the facts about
which of his potential character witnesses would have testified, so he failed to meet his
burden of showing he would have enjoyed a more favorable result if these witnesses were
called. Because Mr. Tarpey failed to establish prejudice, this ineffective assistance of
counsel claim fails.
D. Not Objecting to the Closure of the Courtroom
[¶69] In his reply brief, Mr. Tarpey argued if we find his right to a public trial was waived
by trial counsel, we should find that waiver constituted ineffective assistance of counsel
because it resulted in a fundamentally unfair trial. Mr. Tarpey did not raise this issue in
his W.R.A.P. 21 motion. Because it was not raised in his W.R.A.P. 21 motion, it was not
addressed at the W.R.A.P. 21 hearing. In the affidavit attached to his W.R.A.P. 21 motion,
Mr. Tarpey never alleged that he wanted a public trial or that he objected to the closure of
the courtroom or the use of the audio broadcast. He also did not aver that he wanted to
have family or friends attend the trial. Thus, we do not know if trial counsel made a
unilateral decision not to object to the partial closure of the courtroom or if it was a joint
decision made by trial counsel and Mr. Tarpey. We also do not know whether trial counsel
had a strategic reason for not objecting to the partial closure. Other jurisdictions have
recognized that there might be strategic reasons for not objecting to the closure of the
courtroom. See Martineau, 601 F.2d at 1200; Hutchins, 724 F.2d at 1431-32;
Commonwealth v. Lavoie, 981 N.E.2d 192, 195 (Mass. 2013). Assuming it was trial
counsel’s decision not to object to the partial closure of the courtroom, Mr. Tarpey has not
shown that decision was not an “exercise of reasonable judgment.” Steplock, 2022 WY 12,
¶ 20, 502 P.3d at 937 (quoting Neidlinger, 2021 WY 39, ¶ 53, 482 P.3d at 351–52).
[¶70] Mr. Tarpey’s reply brief does not analyze the evidence that was presented at trial,
nor does it explain why there would be a reasonable probability that the jury would have
viewed this evidence differently if his supporters were present in the courtroom. Because
this claim was not supported by more than bald assertions or speculation, Mr. Tarpey failed
to meet his burden of showing he was prejudiced by the partial closure of the courtroom.
Steplock, ¶ 26, 502 P.3d at 938 (quoting Jackson, 2019 WY 81, ¶ 28, 445 P.3d at 991).
Because Mr. Tarpey failed to establish prejudice, this ineffective assistance of counsel
claim fails.
CONCLUSION
[¶71] The district court complied with its obligations under Waller and did not violate Mr.
Tarpey’s Sixth Amendment right to a public trial when it used an audio broadcast to
provide public access to the proceedings. In addition, Mr. Tarpey waived his right to a
public trial because he never objected to the partial closure of the courtroom, despite having
multiple opportunities to do so. Mr. Tarpey also waived his right to challenge the
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admission of BS’s recorded statement when he stipulated to its admission and affirmatively
insisted the entire recording be admitted and played for the jury. Mr. Tarpey did not meet
his burden of demonstrating ineffective assistance of counsel because he failed to prove he
was prejudiced by his trial counsel’s alleged errors. Affirmed.
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