Opinion
Court of Appeals No. A-11671 No. 6418
12-28-2016
TIJUAN JERMAINE WYRE, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Dan S. Bair, Assistant Public Advocate, Appeals and Statewide Defense Section, and Richard Allen, Public Advocate, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee.
NOTICE Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law. Trial Court No. 3AN-12-7078 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Philip R. Volland, Judge. Appearances: Dan S. Bair, Assistant Public Advocate, Appeals and Statewide Defense Section, and Richard Allen, Public Advocate, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. Judge SUDDOCK.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
A jury convicted appellant Tijuan Jermaine Wyre of first-degree sexual assault and third-degree assault for raping C.M. and then pointing a shotgun at her to silence her. On appeal Wyre argues: 1) that the prosecutor engaged in improper final argument when he argued that the defense's trial strategy was to "drag [C.M.] through the mud"; 2) that the prosecutor improperly bolstered C.M.'s credibility; and 3) that the judge erred by not striking testimony by a nurse who examined C.M. The nurse testified that C.M.'s demeanor was consistent with her claim of sexual assault.
We conclude that these arguments are without merit and affirm Wyre's convictions.
Facts and proceedings
In July of 2010, C.M. was in the process of divorcing her husband. One evening while staying at her grandfather's apartment, C.M. drank heavily with her brother and sister. Her brother left the apartment and returned with a man known only as "T." T. was later identified as Tijuan Wyre. C.M. testified that the two men brought numerous guns with them and stashed them in a bedroom.
C.M. decided to sleep in the bedroom where the guns were stashed. She awoke to find Wyre removing her pants and underwear. She ordered Wyre to leave her alone, but Wyre put his finger to her lips and told her that he was only going to "mess with [her] for a minute." He pulled C.M.'s pants and underwear down to her ankles, and penetrated her vagina with his penis as C.M. continued to protest.
During this assault, C.M.'s sister was taking a shower in an adjacent bathroom. When C.M. heard her brother yelling at her sister, C.M. called out to him, but he did not hear her. Wyre put his hand over C.M.'s mouth and reached for one of the weapons stashed in the bedroom, a shotgun. He cocked it and pointed it at C.M. to silence her. He then pulled up his pants and left. C.M.'s brother testified that Wyre acted oddly as he emerged from the bedroom and departed.
C.M. dressed herself and inquired about T.'s name, but her brother claimed not to know it. Still feeling drunk, C.M. slept for several hours and then drove to a hospital. Although the hospital staff encouraged her to report the incident to the police, she refused. She returned to her grandfather's apartment where C.M.'s husband arrived to drop off their three children. C.M. told her husband what had happened and, soon after, she called the police to report the assault. She agreed to undergo a sexual assault examination.
The police interviewed C.M.'s brother. He reiterated that he did not know T.'s name, and the phone number he provided for T. was disconnected. The case went cold.
Nearly two years later, C.M. recognized Wyre in a picture posted on her brother's Facebook page. She contacted Anchorage Police Detective Jean Dupuis, who had earlier investigated the assault. Dupuis showed the picture from the Facebook page to other officers and an officer identified the man as Tijuan Wyre.
Detective Dupuis obtained a search warrant to collect a DNA sample from Wyre. Before serving this warrant, he interviewed Wyre. Wyre admitted that he knew C.M. but claimed that he had not seen her since 2008 (two years before the assault). He also denied having sex with her. But DNA taken from Wyre pursuant to the search warrant, matched the DNA found on C.M. after the rape.
Wyre was charged with first-degree sexual assault and third-degree assault for pointing the shotgun at C.M. Wyre did not testify at trial. His attorney argued that C.M. had consented to have sex with him. The prosecutor argued that the defense strategy was to drag C.M. through the mud — i.e., to unfairly attack her character.
AS 11.40.410(a)(1) and AS 11.41.220 (a)(1)(A), respectively.
The jury returned a guilty verdict on both counts. This appeal followed.
The State's characterization of Wyre's defense strategy was fair argument
The defense attorney aggressively cross-examined C.M. over the course of two days. During his closing summation he argued that C.M. had consented to sexual intercourse with Wyre as an act of rebellion against her estranged husband, only to minutes later falsely accuse Wyre to cover up her betrayal of her husband. Responding to this argument, the prosecutor stated that once Wyre was caught in the lie that he had never had sex with C.M., the defense attorney had no choice but to tarnish C.M.'s character by dragging her through the mud.
Our review of the defense attorney's cross-examination convinces us that the prosecutor's description of that examination was fair comment to rebut the defense's attack on C.M.'s character. To illustrate the reasons for our conclusion, we summarize some of the interchanges that occurred during the attorney's questioning of C.M.
During cross-examination, the defense attorney asked C.M. if she was getting "manly attention" from her husband. C.M. answered that her husband told her that he loved her. Defense counsel then asked: "Now you and your husband hadn't really been together in at least a month, though, prior to this; isn't that right? ... I'm talking about intimately together." C.M. answered that they had not.
Defense counsel asked C.M. to confirm that she had told Detective Dupuis of a "saucy" dream occurring just before Wyre awakened her. C.M. responded that she could not recall.
Defense counsel concluded this line of questioning as follows:
Q: Well, let me ask it this way. If there's a young man ... that you don't want to have sex with in this room with you, you're not going to open your legs for him, are you?
A: No.
Q: So if he's trying to open you[r] legs, you're probably going to have bruises on your thighs or somewhere on your legs because of the pressure it's going to take to fight you; isn't that right?
. . . .
A: I don't know.
Q: So should we conclude that you didn't fight?
On the second day of cross-examination defense counsel focused on C.M.'s alleged motivation for having consensual sex with Wyre — rebelling against her controlling husband:
Q: Well, didn't you say that your husband was controlling? Didn't you say that, too?
A: At the time I had felt that, yes.
Q: Okay. And so you wanted to rebel against him, didn't you?
A: Yes.
. . . .
Q: Okay. And, likewise, in July 2010, in the course of rebelling against your husband who was controlling, what better way to rebel than to have sex with a sta — with somebody else, right?
A: No.
Defense counsel returned to C.M.'s dream:
Q: Okay. So it seems very coincidental, doesn't it, that you'd have this saucy dream and right afterward sex
occurs with Mr. Wyre, a person who's been flirting with you? A person ...
A: He had tried to, yes.
Q: Aperson who you watched being flirted with by some other woman, right? Right?
A: Yes.
Q: A person who tells you you're beautiful, you're pretty, right?
A: Yes.
Q: So tell us, was he in the saucy dream, ma'am?
A: No.
The defense attorney concluded the cross-examination by reciting his theory of the case: that C.M. wanted to rebel against her controlling husband, had sex on her mind, decided to have sex with Wyre, but then regretted her rebellion and falsely accused Wyre of rape. The attorney's final question was: "So during this whole situation, assault as you call it, you were laying on your back, right?"
Later, during the prosecutor's rebuttal summation, the prosecutor reminded the jury that Wyre had lied to the police when he denied having intercourse with C.M. The prosecutor then stated, "[o]nce it [became] obvious that the defendant [was] lying, the defense strategy became one thing; to drag [C.M.] through the mud." The judge overruled a defense objection, noting the aggressive nature of the defense cross-examination of C.M. and the brevity of the objected-to comment.
Wyre now claims that the prosecutor's comment was improper because it was unrelated to questions of guilt or innocence, improperly denigrated the defense, and tended to inflame the jury. The A.B.A. Standards for Criminal Justice prohibit a prosecutor:
from expressing a personal belief as to the evidence, from making appeals calculated to inflame passions and prejudices of the jury, and from advancing arguments based on the consequences of the verdict or on issues other than the guilt or innocence of the accused.
Patterson v. State, 747 P.2d 535, 538 (Alaska App. 1987) (citing ABA Standards for Criminal Justice § 3-5.8 2d ed 1982)); see Potts v. State, 712 P.2d 385, 390-91 (Alaska App. 1985) (superseded by statute on other grounds); see also ABA Standards for Criminal Justice § 3-6.8 (Approved Draft 2015).
But in Wyre's case, the prosecutor's comment did none of these things. Instead, it squarely addressed the defense theory of the case that C.M. welcomed sex with a stranger in order to humiliate her husband, then regretted her act and falsely accused the stranger of rape. The prosecutor argued that after Wyre was caught in a lie — his denial of sex with C.M. — Wyre's only recourse was to pursue a theory of defense amounting to character assassination.
While we recognize that an aggressive cross-examination of a complaining witness is permissible, the prosecution may in turn address the cross-examination's innuendo. The phrase "to drag someone through the mud" connotes an attempt to unfairly damage or ruin a person's reputation or credibility by saying or implying insulting things about the person. We conclude that in light of the defense attorney's aggressive cross-examination and argument, the prosecutor's responsive use of a colloquial term denoting character assassination was fair argument. The judge did not err in overruling Wyre's objection to the prosecutor's terminology.
E.g., Drag name through the mire/mud, CAMBRIDGE IDIOMS DICTIONARY (2d ed. 2006).
The prosecutor did not unfairly bolster C.M.'s credibility
During his summation, the defense attorney pursued his theme that C.M. accused Wyre of rape to conceal her promiscuous act from her brother and husband. The defense attorney argued that an accusation of rape is easy to lodge and difficult to defend against:
How easy it is. How, unfortunately, easy it is to be accused [of] a sexual assault, probably the worst crime you can commit. ... How do you even defend against this kind of an accusation? How easy it is for somebody to just say this person sexually assaulted me, after sex has occurred. It is unfortunate, but that's what has happened here.The prosecutor responded:
Members of the jury, don't ever let yourself come to the conclusion that it is easy for a person to claim to be sexually assaulted. You saw what [C.M.] had to go through, you saw that she had to talk to police, that she had to submit to a medical forensic examination. Photos of her naked body had to be taken, DNA collected from her body. And she kept up the case, she wouldn't let it die, even though the police were out of leads.
Then she had to testify at grand jury, and then she had to come here and submit herself to talking about the worst event of her entire life. It is totally unreasonable to think that the reason she did that was to hide having consensual sex from [her brother] two and a half years earlier[.]
Wyre's attorney did not object to the prosecutor's rejoinder. But Wyre now contends that the prosecutor's remarks signified not that pursuing the case was difficult for C.M., but rather that because C.M. underwent physical examination and trial, she was entitled to be believed. Wyre cites the Massachusetts case Commonwealth v. Ramos for its holding that a prosecutor may not bolster the credibility of a complaining witness in a sexual assault case merely because of her willingness to testify at trial:
902 N.E.2d 948 (Mass. App. 2009).
By alluding to conjectured embarrassment experienced by a young woman in coming before a group of strangers to describe a sexual assault, including her menstruation and use of sanitary pad, the prosecutor sought to bolster the credibility of the complainant by virtue of her willingness, despite such a burden, to come into court and testify.
Id. at 950.
But here, the prosecutor did not argue that C.M. should be believed merely because she testified. The prosecutor made a different argument, responsive to the defense attorney's easy-to-cry-rape theme: C.M should not be disbelieved under the assumption that it is easy to accuse someone of rape. In light of Wyre's argument, the prosecution's response was fair rebuttal.
We note that the prosecutor at one point did argue that C.M.'s credibility was enhanced by her willingness to testify:
She's got no motive to testify at grand jury in August of 2012, unless it's the truth. And she's got no reason to come in and suffer through the torment of trial, suffer through reliving the event when that — when answering my questions, and suffering through the humiliation that she necessarily had to suffer to go through cross-examination. She knew that was coming. She chose to do it anyway. The only reason she chose to do it is because it's true.Then in his rebuttal summation, the prosecutor added:
[C.M.] had to go through a lot of stages, where she talked to a lot of people about this event and this case to be here. She had to suffer through reliving this event. That, in itself, lends credence to what she says. (Emphasis added.)Wyre did not object to these arguments at trial and so must show plain error — i.e., error of such an egregious nature as to undermine the fundamental fairness of the trial.
Rogers v. State, 280 P.3d 582, 589 (Alaska App. 2012).
The prosecutor's remarks were only a small portion of his broader remarks rebutting the defense attorney's assertion that, because a rape is easy to allege, C.M. should be disbelieved. We have carefully reviewed the State's final argument and we conclude that it appropriately focused on the evidence and the reasonable inferences to be drawn from it. Viewing the record as a whole, we conclude that the State's argument that C.M. was worthy of belief merely because she testified was but a small part of the State's argument that otherwise properly focused on the evidence and the law. This brief impropriety did not divest the trial of its fundamental fairness. Accordingly, no plain error occurred.
See Adams v. State, 261 P.3d 758, 773 (Alaska 2011).
The examining nurse's testimony about C.M.'s demeanor
The nurse who examined C.M. testified that C.M.'s demeanor was consistent with that of other victims of sexual assault whom the nurse had interviewed:
Q: Okay. Is it possible to — for a person to be sexually assaulted and not have injuries to their genitals or anus?
A: Yes.
Q: How is that possible?
A: Well, the basic reasoning for that is because the female genitalia is built for both being able to have a baby come out and accepting penetrating objects as well.
Q: Okay. Based on your training and experience, Ms. Hallas, was C.M.'s presentation, her physical condition, was it consistent with the history she gave you about what had happened to her that day?
DEFENSE COUNSEL: Objection.
THE COURT: Overruled.
A: I think that's a broad question, so I want to — I find her demeanor to be consistent and — yeah, I'll leave it with that.
Wyre now claims that the nurse's reference to C.M.'s demeanor was error under our holding in Williams v. State, where we disapproved of a police officer's testimony that the demeanor of two children she had interviewed was consistent with that of other abused girls she had encountered in similar circumstances. But here, the prosecutor was not asking the nurse to compare C.M. to other people, but only to opine whether her physical condition was consistent with the history that C.M. had related. The prosecutor did not solicit the nurse's opinion about C.M.'s demeanor, only her physical condition. It was the nurse's answer that ambiguously, and briefly, referred to C.M.'s "demeanor."
928 P.2d 600 (Alaska App. 1996).
Id. at 603.
In his final argument, the prosecutor pointed out that the reactions of rape victims vary widely, implying that no conclusion could be drawn about C.M.'s reaction to her rape. The prosecutor stated: "As the SART nurse and Detective Dupuis explained, there is no one way for victims of sexual assault to respond. They all have their own way of emotionally dealing with it, and we saw that here." Thus the prosecutor did not argue that C.M.'s demeanor was typical of rape victims.
Because the nurse's brief non-responsive remark did not affect the overall fairness of the proceeding, the judge did not commit plain error by not striking it sua sponte.
See Rogers v. State, 280 P.3d 582, 590 (Alaska App. 2012). --------
Conclusion
We AFFIRM the judgment of the superior court.