Lead Opinion
Louise Morris was convicted by a jury of one count of first degree sexual assault on a child and two counts of sexual assault of a child. She appealed to the Nebraska Court of Appeals, which affirmed the convictions and sentences. Morris petitioned for further review, which we granted.
SCOPE OF REVIEW
In all proceedings where the Nebraska Evidence Rules apply, admissibility of evidence is controlled by those rules, not by judicial discretion, except in those instances in which the rules make judicial discretion a factor. State v. Newman,
FACTS
In November 1993, Morris.was charged with one count of first degree sexual assault on a child and one count of sexual assault of a child for assaults on her daughter, Nicole T, and one count of sexual assault of a child for assaults on her son, Jason T. These assaults allegedly occurred from January 1983 to December 1988, when Nicole was between .4 and 10 years of age and when Jason was between 1 and 7 years of age.
Morris and Gene T. were married in 1978. The family lived in a trailer home near Seward, and later .moved to a house in Seward, on Eighth Street. Morris left the family in March 1989 and moved to Grand Island, where she remarried. The children remained in the father’s home, and in January 1990, he was awarded custody in the final divorce decree. The father remarried in November 1990.
After Jenny B., the stepmother, moved in, the father and stepmother began to have problems with Jason. He became violent, had nightmares, and wet the bed. About the same time, Nicole began losing weight. Both children were taken to Pioneer treatment center for evaluation. In July 1992, Jason was taken to Lincoln General Hospital, where he stayed for approximately 3 months. It was determined that he required additional treatment, and he was admitted to Epworth Village, a residential treatment center for children.
Jason was 12 at the time he testified at trial. He stated that he did not tell anyone about the assaults at the time they happened because Morris told him not to tell. Jason testified that Morris touched his penis. He testified that he touched Morris’ private parts because she told him to do so and that this happened both at the trailer and at the house on Eighth Street. He stated that Sandra Kroeker, a clinical social worker, was the first person he told about the abuse.
Nicole was 15 at the time she testified. She had lived with Morris in the trailer, and she testified that while they lived there, Morris would touch her breasts and vagina as often as twice a week. These incidents allegedly happened from about the time Nicole was 4 until she was 10. This alleged touching continued after the family moved to the house on Eighth Street, but was not as frequent. Nicole testified that she had seen her mother have sexual contact with Jason since he was 1 or 2 years old and that Morris threatened to hurt her or her father if she told anyone about the assaults. Nicole did not tell anyone until after Jason told Kroeker about the assaults.
Kroeker testified that during her first session with Jason on October 29, 1992, he told her he had been sexually abused by his mother. Kroeker was told by Jason that his mother would pick him up from school, bring him home, take his pants off, and rub his penis. Jason also watched his mother engage in sexual intercourse with different men. On November 5, Jason told Kroeker that his mother frequently engaged him in sexual contact with her. She would rub his penis and would have him touch her breasts and vagina. Morris also had Jason dress as a girl and then masturbate his sister while Morris watched. On January 15, 1993, Jason completed an anatomical drawing to help identify the parts of his body that were touched and to focus in on what had happened. He continued to relate the sexual abuse at each session Kroeker had with him, and his state
The children’s stepmother testified that Jason told her in October 1992 that Kroeker was counseling him and that he had been sexually assaulted by Morris.
Dr. Kathryn Benes, a psychologist who evaluated Jason at Lincoln General Hospital prior to his counseling with Kroeker, testified that Jason suffered from depression and posttraumatic stress disorder. Benes specifically asked Jason if anyone had touched him in a way that made him feel uncomfortable, and he said no. Benes testified that it is not unusual for a child to not report the abuse to an adult because children who have been sexually abused by adults often do not trust other adults.
Sherry Lave, the police officer who was assigned to interview Nicole at the time the abuse was reported, testified that during her interview with Nicole, she was told that Morris had touched Nicole inappropriately on numerous occasions and that the abuse began when Nicole was 4 or 5 years old. Lave stated that Nicole said she had been touched all over on her breasts, that Morris had inserted her fingers into Nicole’s vaginal area, and that Morris had instructed Nicole on various occasions to touch Jason’s penis. Nicole indicated to Lave that some of Morris’ male acquaintances had sexually assaulted Nicole and that Morris was present when this occurred.
At trial, during cross-examination of the children, it was suggested by the defense that the children had fabricated the allegations and that the children had been subjected to improper influence by the father, the stepmother, Kroeker, and Lave. Morris argues that the alleged improper influence first occurred on October 29, 1992, when Jason first met with Kroeker. The children’s statements to these witnesses were all made after Jason was interviewed by Kroeker on October 29 and were consistent with the initial reporting of abuse.
Four witnesses testified at trial over Morris’ continuing hearsay objection to what Nicole and Jason had told them. The witnesses were Eunice Williams, the director of therapeutic services and a psychotherapist at Epworth Village; Gordon Hall, the director of life skills training at Epworth Village, who pro
Williams, Hall, Weber, and Hoehler each testified that during the course of his or her respective professional duties, Jason told him or her that he had been sexually abused by Morris. Williams testified that both Nicole and Jason told her that they had been sexually abused by Morris. Hall testified that Jason had told him that Jason had been sexually abused by Morris. Weber testified that after Jason had reported the sexual abuse to Kroeker, he told Weber about the sexual abuse. Hoehler testified that Jason made detailed statements to him about the sexual abuse during his investigation.
Morris was convicted on all three counts. The Court of Appeals affirmed the convictions and sentences. The court stated that if Tome v. United States,
[I]n addition to the four witnesses to whose testimony Morris objected, the children, the father, the stepmother, Kroeker, and another police officer testified to the same or similar instances when the children had made prior statements that were consistent with their in-court testimony. We recognize that the procedure was followed by Morris’ counsel in an attempt to create error under the Tlamka holding, the only course open to him at the time. However, this tactic had the effect of letting into evidence many prior consistent statements that would have been excluded*28 under Tome, and thus the testimony of the four witnesses to which Morris did object was cumulative and could not have prejudiced Morris.
State v. Morris, 4 Neb. App. 250, 262-63,
ASSIGNMENTS OF ERROR
Morris claims the Court of Appeals erred in holding that the prior consistent statements were admissible and in finding that the prior consistent statements, even if inadmissible, were cumulative to other evidence and were therefore not prejudicial.
ANALYSIS
We first consider whether the U.S. Supreme Court’s interpretation in Tome of Fed. R. Evid. 801(d)(1)(B), which rule is set forth as Neb. Evid. R. 801(4)(a)(ii), should be adopted by this court. Our opinions in State v. Tlamka, supra; State v. Huebner,
Rule 801(4)(a)(ii) provides:
A statement is not hearsay if:
(a) The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is . . . (ii) consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive[.]
The U.S. Supreme Court reversed, holding that the rule permitted the introduction of a declarant’s consistent out-of-court statements to rebut a charge of recent fabrication or improper influence or motive only when those statements were made before the charge of recent fabrication or improper influence or motive. Quoting McCormick and Wigmore, the Court noted: ‘“[T]he applicable principle is that the prior consistent statement has no relevancy to refute the charge unless the consistent statement was made before the source of the bias, interest, influence or incapacity originated.’ E. Cleary, McCormick on Evidence § 49, p. 105 (2d ed. 1972)....” Tome v. United States,
The prevailing common-law rule dealing with prior consistent statements that existed before the adoption of the federal rules of evidence provided that a consistent statement introduced to rebut a charge of recent fabrication or improper influence or motive was admissible if the statement was made before the alleged fabrication, influence, or motive came into being, but was inadmissible if made afterward. The Court reasoned
[i]f consistent statements are admissible without reference to the time frame we find imbedded in . . . Rule [801(d)(1)(B)], there appears no sound reason not to admit consistent statements to rebut other forms of impeachment as well. Whatever objections can be leveled against limiting the Rule to this designated form of impeachment and confining the rebuttal to those statements made before the fabrication or improper influence or motive arose, it is clear to us that the drafters of Rule 801(d)(1)(B) were relying upon the common-law temporal requirement.
Tome,
A brief discussion of our prior decisions involving rule 801(4)(a)(ii) is necessary for our present consideration of the rule. One critical distinction between some of the prior Nebraska cases addressing rule 801 (4)(a)(ii) and the case at bar is the time when the improper influence took place. In State v. Tlamka,
In Tlamka, the defendant was convicted of first degree sexual assault on a child. He appealed, and the Court of Appeals
In Huebner, we held that the trial court did not abuse its discretion in admitting the testimony of a social worker and a counselor regarding details of the sexual assault as prior consistent statements. The incident which led to Huebner’s conviction occurred in December 1989. It was not reported until July 1990, and the complaint was not filed until November 1991. At trial, a social worker and a counselor testified about the details of the assault, and another social worker testified as an expert regarding reasons why child victims delay reporting sexual assaults. Huebner asserted that the State intended to gain a tactical advantage by providing the victim with counseling in order to use her as a credible witness at trial. Huebner produced no evidence showing that the State had attempted to manipulate the counseling sessions in order to improperly mold the victim’s
Huebner claimed that the trial court had erred in admitting the testimony of the social worker and the counselor as to the details of the assault. The victim testified prior to such testimony, and during her cross-examination, it was suggested that she had fabricated the story because she did not like the relationship between Huebner and her mother.
In State v. Gregory, 220 Neb. 778,
In State v. Packett,
In State v. Pelton,
If an attack on a witness’ credibility through use of an inconsistent statement is accompanied by, or interpretable as, a charge of a plan or contrivance to give false testimony, proof of a prior consistent statement before the plan or contrivance was formed tends “strongly to disprove that the testimony was the result of contrivance. . . .”
Morris argues that the Court of Appeals erred in not following the U.S. Supreme Court’s decision in Tome v. United States,
In order to minimize the amount of judicial discretion and therefore control the admissibility of evidence by rule as much as possible, we interpret rule 801(4)(a)(ii) to permit the introduction of a declarant’s consistent out-of-court statements to
We next address whether the testimony of Williams, Hall, Weber, and Hoehler was cumulative and therefore harmless error. In a jury trial of a criminal case, an erroneous evidential ruling results in prejudice to a defendant unless the State demonstrates that the error was harmless beyond a reasonable doubt. State v. Hernandez,
Williams testified that after Jason told Kroeker the details of the abuse, Jason told Williams that Jason’s biological mother had abused him, but Jason did not give Williams specific details. Over Morris’ hearsay objection, Hall was asked whether Jason told him that Jason had been sexually abused by his mother. Hall replied yes. Hall further testified that Jason had
Although similar testimony from the victims, the father, the stepmother, Kroeker, and Lave was admitted without objection, we conclude that the testimony of Williams, Hall, Weber, and Hoehler was prejudicial and could have materially influenced the jury.
We cannot say beyond a reasonable doubt that the erroneously admitted evidence did not prejudice Morris or that the State has demonstrated beyond a reasonable doubt that the erroneous admission of evidence in this case was harmless. We therefore reverse the judgment of conviction and remand the cause for a new trial.
Reversed and remanded for a new trial.
Dissenting Opinion
dissenting.
The majority in its opinion expressly adopts the bright-line rule of Tome v. United States,
According to the Nebraska Evidence Rules, a prior consistent statement is not hearsay if (1) the declarant testifies at trial, (2) the declarant is subject to cross-examination concerning the
The majority applies the U.S. Supreme Court’s holding in Tome to exclude all prior consistent statements made after the charge of recent fabrication because Nebraska’s rule 801(4)(a)(ii) is patterned after Fed. R. Evid. 801(d)(1)(B). I disagree with this extension of the plain language of the Nebraska rule.
In matters involving the interpretation of state law, we are bound to consider only our own decisions and are not required to apply U.S. Supreme Court decisions. Patteson v. Johnson,
In the interpretation of the Nebraska rule of evidence at issue in this instance, our cases have consistently held that rule 801(4)(a)(ii) allows for the admission of prior consistent statements when an opponent implies that a declarant’s testimony is false. See, State v. Huebner,
In the instant case, the adoption of the bright-line rule set forth in Tome results in the exclusion of all prior consistent statements made by Jason and Nicole to Williams, Hall, Weber, and Hoehler. The majority in its decision excludes these prior statements despite the fact that all of the statements were essentially consistent with the children’s in-court testimony and despite the fact that the charge of recent fabrication was not made until the cross-examination of Jason. See State v.
The majority’s decision in this case is violative of the plain meaning of Neb. Evid. R. 801(4)(a)(ii), our own precedent, and common sense. As the dissenting Justices stated in Tome, “[T]he effect of admission on the trial will be minimal because the prior consistent statements will (by their nature) do no more than repeat in-court testimony.”
To add the timing requirement set forth in the majority’s opinion to Neb. Evid. R. 801(4)(a)(ii) allows a defendant to eliminate prior consistent statements by the imaginative use of the charge of recent fabrication. In this case, Morris alleged for the first time at trial that Jason’s statements to the social worker on October 29, 1992 — the first disclosure by Jason of the abuse — were the product of improper influence. Thus, Morris succeeded in relating the allegation back to the first disclosure of the abuse and in so doing prevented the jury from hearing the prior consistent statements made by Jason to others when the social worker was not present to allegedly influence his statements.
For the foregoing reasons, I would hold that, when the charge of recent fabrication or improper influence is made at trial, all consistent statements made prior to trial are admissible. I would, therefore, affirm the trial court’s admission of the prior consistent statements made to Williams, Hall, Weber, and Hoehler.