*1 Plaintiffs also claim Schabauer, that Mrs. at all relevant herein, times agent acted as the of Dr. Schabauer and that through agent, his Dr. Schabauer was “introduced” Mid-Western. The trial claim court found that to have no merit. We agree. The judgment trial court’s is affirmed.
Affirmed. A. Nebraska, appellant. appellee, Wells, State James July 1, 1988. Filed No. 87-674. Kenney,
Thomas M. Douglas County Defender, Public Munnelly Brian S. appellant. for Spire, Attorney General,
Robert M. and Steven J. Moeller appellee. for C.J., Hastings, Boslaugh, White, Caporale, Shanahan, J J.
Grant, Fahrnbruch, Caporale, J. jury defendant, A Wells, found guilty James A. of first degree assault, sexual a violation of Neb. Rev. Stat. 28-319(l)(a) (Reissue 1985); adjudged he was so
§ appeal In thereafter sentenced. he asserts the district court (1) receiving (2) permitting erred in certain evidence and prosecutor inquire during upon into and comment his silence *2 investigation the of the crime. Wereverse and remand for a new trial.
FACTS 5,1986, following separation husband, On June from her the victim, R.L., 14-year-old daughter up and her took in residence apartment building. a downtown Omaha R.L.’s was a apartment overlooking second-floor adjoining the roof of an structure, one-story portion being of the this roof about 18 living inches below the level of the room window to her apartment. building Elevators in the cannot be activated security code, without a and the lobby stairwells above the level entry. are locked from the direction of night the On second of her residence apartment at the building, phone the victim was awakened the at 1 o’clock in awake, morning. the daughter Once she noticed that her was later, apartment. not in the Moments a man tried to enter her apartment through open living window; the room he was apparently awake, startled to find R.L. daughter, asked for her immediately and exited. began daughter,
R.L. to search starting for her with the neighboring apartment Cichowski, of one Ron whom R.L. had apartment met when she moved into the building. Cichowski’s apartment floor, directly was also on the second across the roof living from R.L.’s room. daughter R.L. found her bathroom; daughter Cichowski’s the was drunk and lost shortly consciousness thereafter. Also found in the bathroom daughter with her time, was the defendant. At this R.L. recognized person defendant as the who moments earlier had attempted apartment. to enter her taking
After daughter apartment the to her putting bed, daughter in R.L. returned to apartment Cichowski’s daughter’s talk to him about her intoxication. Defendant was apartment still in but, Cichowski’s at according this time R.L., kept his back shortly to her and left after she returned. later, days instance, Two at R.L.’s daughter was made a ward of the state and resided in various care facilities thereafter through the time of trial. Walker, Cichowski’s, present
Cecil a friend of had been morning apartment night Cichowski’s the victim’s daughter was found in Cichowski’s bathroom. Walker testified daughter apartment that the went to Cichowski’s sometime Cichowski, Walker, p.m. after 8 or 9 and drank beer with defendant, daughter. who had after the arrived about hour Walker also testified that the defendant remained apartment throughout approximately hours of the victim’s IV2 Cichowski, discussion drinking although of the incident with the victim speak directly during did not to defendant period. Walker also morning, testified that later that he found defendant escape on the fire above Cichowski’s bedroom subsequently window. The victim encountered defendant for a period, brief but the two did speak. not day following attempted entry into the victim’s
apartment, she and a friend living secured the window room However, building with boards. manager removed the living assuring boards from the room window on June R.L. *3 locks, that although working the window lacked it was impossible anyone gain entry long for to as as the window was inside____” closed only because “there were handles on the 26, 1986, July On the victim rose a few moments after hearing approximately a noise at 2:20 a.m. and turned on the light. living bathroom After she examined the room window and noted that the outer casement window and the inner screen secure, were both she returned to bed. The victim was awakened later morning and found that “there was a man top on of me and he didn’t have I sleeping clothes on. was — my on up probably back and when I woke he I was don’t — away know my light a few inches from face.” bathroom dimly bedroom; awoke, shone into the victim’s as soon as she stomach, the man ordered her to roll over on her and she complied. wearing nightgown, underwear, The victim was and knee socks. Her underwear had been cut two in the area, apparently crotch before she awoke. The man ordered the nightgown, victim to remove and complied, her after she he raped her. withdrew, minutes,” rapist
After “five or ten ordered stomach, point victim to remain on her and dressed. At one enough putting victim turned her head to see the man on blue jeans. She testified: my looking get
He saw me at him and he told me to on my keep asking stomach and to head down. I was him not my pacing to hurt me. He was bedroom and he wasn’t talking I I phone. and he asked me if I had a told him that did. He asked where it was and I told him it was in the room, said, living going police “You he are to call the leave,” when I and I told him I that wouldn’t call the police; that he phone could take the with him. He said that said, my phone, going he didn’t want and he “You’re said, that, police,” you you’re call the and then he “If do going going hurt you.” me so I am to have to I told hurt him going crying just that I wasn’t to hurt him. I I was said that I couldn’t because I didn’t know who he was. He stayed walking in the bedroom for a while around and my side, then facing he told me to roll over on which was window, that, the bedroom and when I did I heard him my exit through living bedroom door and leave room window, run across the roof and I him jump. heard When jumped, jumped minute he I heard what I felt was a motorcycle up____It start took off. immediately put nightgown
The victim her back on and went apartment to a friend’s upper building, on an floor at the police were summoned. Upon investigation, officers it was living discovered that the screen in the victim’s room window had been cut from the frame on two sides.
An examination of the victim conducted at 6:55 that same morning presence revealed the sperm cells in the fluid samples taken from her. white,
The victim rapist described the as of small to medium build, tall, about 5 feet 6 inches with shoulder-length “blondish-brown” thought hair. The victim also rapist must *4 her, be someone who knew people because few knew which of boards, her windows was not secured with and because she felt she before, had heard the rapist’s although voice in court she positively was unable to identify defendant as her attacker.
93 Wells, brother, Suspicion Robert first focused on defendant’s briefly thought and whom she had a whom the victim had met However, rapist’s. days rape, voice 4 the rather like the after identify being R.L. was unable to Robert Wells’voice as that of rapist. rape, About a week after the the victim considered her; however, possibility raped although had that defendant possibility investigating police with she discussed this officers, thought she at that time discounted the because basically though
even Jim and Bob are the same build and hair, length have the same of hair and the same color of I felt, way because of had looked [defendant] [at day encounter], previous victim on the of a chance if he me, raped had I he hurt me physically. felt would have serologist A forensic with the State Patrol crime Nebraska cases, laboratory percent in it approximately testified that of possible by analyzing is person’s type determine a blood saliva, semen, vaginal possible or fluid. It is also to determine enzyme which of 10 different isomers of the phospho- glucomutase blood, (PGM) present samples is of fluid, vaginal serologist seminal fluid. The further testified analysis that of found on bedsheet semen stains the victim’s nightclothes rapist type indicated that the had B blood and a type type PGM PGM 2 2 The known as + +. victim’s blood is O, Analysis sample and she has PGM 1. of a of defendant’s +; B 2 2 type blood indicated that has blood and PGM + analysis and, sample findings of a of his saliva confirmed these ” addition, “secretor, is, that indicated defendant is a one type whose blood and PGM status can be determined blood, body particularly examination of other fluids than semen, vaginal fluid, and saliva.
According serologist, up percent to the secretors make population, type B found in 11 percent white male blood is population, of the white male and PGM 2 + 2 + is found in 3 percent population. finding of the white male The likelihood of who with B blood and type a white male is a secretor PGM 1,000. approximately 2 + 2 + is chance analysis samples Cross-examination revealed taken brother, too, from defendant’s brother indicated that the is a +; PGM 2 2 type secretor with B blood and + the test results *5 serologist defendant and his brother. were identical for the pubic the victim’s also testified that one hair taken from samples pubic of both defendant’s bedsheet matched known hair and that of his brother.
Spermatozoa found in the semen stains taken from were A nightclothes. urologist bedsheet and testified victim’s vasectomy performed had a on defendant’s brother on October 12, 1983; following complications; there were no and this analyses surgery, separate sample two indicated that there were no spermatozoa urologist’s in the brother’s semen. The most analysis recent of semen from sample a the brother was made January 11, Following vasectomy, on a spontaneous 1984. vas, leading ability ej of the reconnection to renewed to acúlate spermatozoa, percent occurs less than 1 of cases in which no noted; complications urologist other are had encountered years practice. no such case his 10 discoveries, Following these attention shifted defendant. 5, 1986, On outstanding November defendant was on arrested briefly traffic jail. warrants and held in the Omaha The record does not disclose whether defendant received Miranda time; warnings at this Omaha Police Detective Michael Hoch only 5, 1986, testified that on November he “advis[ed] going placed custody that he was to be because [defendant] outstanding prosecutor, during traffic warrants.” The inan conference, camera stated that “there were no Miranda Rights given day my that is clear from the reports and from discussions with Officer He Hoch. didn’t advise him of his Rights.” However, Miranda testimony no to this effect was adduced. 12, 1986,
On November Hoch met with defendant at his place employment requested sample, a saliva which provided. defendant placed While defendant was not under time, again arrest at this 17,1986, he was arrested on December charged with the crime giving rise to appeal. trial, prosecutor, At over defendant’s strenuous objections, engaged Hoch following dialogue: in the “Q Hoch, 5,1986, Officer on November you did attempt to talk concerning the [defendant] sexual assault of ... [R.L.]? [Hoch] Yes.”
Upon cross-examination, attorney defendant’s adduced the following testimony from Hoch defendant’s 5,1986, outstanding November arrest on traffic warrants: And when Q [police was down at Central [defendant] headquarters] you question regarding any did him . . . matters outstanding than the traffic warrants on [other originally which he had been arrested]? No.
[Hoch] you day DidQ request on that from [defendant] body? substances from his *6 Yes.
[Hoch] you? Did he Q things volunteer these to Yes. [Hoch]
Q Did he have do to that? No.
[Hoch] Q cooperative giving Was he things? these Was there any big get hassle things these from him? No.
[Hoch] you got I think Q some blood and hair from him that day, is that correct? Yes.
[Hoch] further, And regarding the sample saliva taken on November 12,1986: Again, “Q give you did he have that? No. Q [Hoch] voluntarily He cooperatively gave you? it to Yes.” [Hoch]
Following case, close of the State’s defendant moved for dismissal of charge, arguing that the State had failed to prima establish a facie case. The district court overruled the motion. Defendant then took the stand and testified that he spent evening July 25, 1986, company in the of a friend Marlin, and coworker named returning to his brother’s house in Lake, Iowa, Carter around morning 2:30 on the July 1986, whereupon he slept went to bed and until 10 or 11 that morning. Defendant also testified that he had never had a vasectomy was, knew, as far as he fertile as of the time of trial; that he had been person R.L. had seen crawl through living her room window 6,1986; on June and that he had been the person Walker had morning seen later that on the escape fire outside apartment. Cichowski’s cross-examination,
Upon attorney the State’s adduced the defendant, following testimony again from once over objection: defendant’s strenuous attempt you And did Officer Hoch Q to talk to on 5, 1986, rape you November about the when [R.L.] were taken in on the traffic warrants? Yeah.
[Defendant] you 5, 1986, . . . And did Q talk to him on November rape about the of [R.L.]? No.
[Defendant] again Defendant moved for a dismissal at the close of all the evidence; again the motion closing was overruled. In his argument jury, prosecutor to the stated: finally, credibility Judge says you
And can look at prior someone’s conduct to see if it is consistent with their testimony at trial. . . . you November the 5th were [0]n defendant, too, told Officer Hoch and from this Officer Hoch tried to interview him and the defendant you told on November 5th any interview; that there wasn’t did incident, that he not talk to Officer Hoch about the prior you and that conduct can take and access as to his credibility you said, on the stand when he looked at “I didn’t her.” says
... He fleeing, fleeing Robert is a rapist. Robert August consented to search on 1st and Hoch was there and *7 him, gave 31st, talked to him an July interview on gave he day him gave blood one him hair the next and we left, why don’t gentlemen. know he ladies and There is a warrant out for child abandonment nothing but that has Presumably to do with this case. might why he know left but he didn’t tell us. said he dope had a [R.L.] problem. I why don’t know he left but I do know that he did a little bit more in cooperation terms of guy than that did (indicating toward the defendant) because when Mr. 5th, Wellswas asked Officer Hoch on November it was late, away earlier, too it should have been done to talk any about it. There wasn’t talk about it.
No given by instructions were limiting trial court jury’s regarding use of the evidence defendant’s refusal to discuss R.L.’s with Hoch.
EVIDENCE CONCERNING DAUGHTER assigns evidence, Defendant receipt first over his objection, regarding the 14-year-old daughter. victim’s In this argues, connection defendant inter alia: respectfully
We submit to Court that the evidence regarding finding the Defendant daughter] in the [the bathroom apartment, of Ron Cichowski’s the evidence of returning to apartment Cichowski’s putting after [R.L.] bed, daughter] to and the evidence [the [the daughter] being made a ward being of the State and placed in Young Hospital Town, Richard Boys all entered objections over Defendant’s relevancy grounds, on do not tend to make the any existence of fact is of consequence to the determination of the action more probable required by as is Neb.Rev.Stat. (Reissue §27-401 Thus, 1985). being not relevant it is “not admissible”. Neb. Rev. Stat. (Reissue 1985). §27-402 Brief Appellant for Initially, at 17. we note that defendant’s characterization accurate; of the evidence is not nothing in the record before suggests this court found the defendant daughter victim’s Rather, Cichowski’s bathroom. uncontroverted record is that the victim very found both her daughter drunk and defendant in Cichowski’s bathroom.
Evidence Admissible Neb. Rev. (Reissue Stat. 27-401 1985) § defines “relevant evidence” as having any “evidence tendency to make the existence of consequence fact that is of to the determination of the probable action more probable or less than it would be without the evidence.”
Recently, Oliva, State v. (1988), this court rejected considered and argument virtually by defendant, identical to the one now made noting: argument is not that the evidence fails to address a material issue . . . but that the lacking evidence is so probative force that it should have been excluded. The view, however, modern is that probative evidence is if it any degree tends in to alter probability of a material *8 98
fact____ enough
... It is if the evidence offered could show that slightly probable it a material fact is more than would evidence____ appear without that said, only requires ... As we have 27-401 that the § degree probativeness something nothing. of be more than 188-89, testimony 228 Neb. 422 at 55. The at N.W.2d victim’s 6, night her with encounter defendant on of June 1986, statement, probative regarding credibility is of her following rape, that she had found her attacker’s voice familiar; testimony clearly the victim’s went to the material identity. Similarly, testimony issue of to the effect that the reside, 9,1986, daughter did apartment not after June in the in place question which the took went at least to the opportunity, making [appear] slightly this “material fact more probable appear than it would without that evidence.” State Oliva, 189, supra Clearly, testimony at N.W.2d at 55. concerning complains which defendant was relevant to issues prosecution material to his requirements and satisfied the Although may way 27-401. there have been some to tell the § story evening mentioning by of that without played the role daughter, victim’s we will not dwell on possibility that mere here, the being admission or exclusion of evidence a matter within the discretion of the trial court and one not be appeal disturbed on absent an abuse of discretion. State v. Rincker, 522, 423 Wilson, (1988); N.W.2d 434 Neb. State v. Kern, (1987); State v. 224 Neb. 177, 397 (1986). N.W.2d 23 Unfairly Prejudicial
Evidence Not was, testimony Defendant next asserts that the victim’s event, unfairly prejudicial under Neb. Rev. Stat. 27-403 § (Reissue 1985), and therefore should not have been admitted. only discussion concerning contained defendant’s brief assignment this second branch of his first of error is the following conclusionary sentence:
Finally, if this Court finds these incidents relevant in some
way
case,
by
to this
the evidence should be excluded
Neb.Rev.Stat.
that relevant evidence can be
§27-403
probative
substantially
excluded if it’s
value is
[sic]
danger
prejudice, confusion
outweighed
“the
of unfair
1985).
(Reissue
issues..§27-403
*9
tell us how
Appellant
17. Defendant does not
Brief for
at
daughter might
regarding the victim’s
admission of evidence
case,
might have
unfairly
his
nor how it
prejudiced
have
issues;
the.
defendant’s bald
contributed to confusion of
the level of
conclusionary
does not
rise to
assertion
will not
contemplated
the rule that this court
“discussion”
assignments
are not discussed
the
consider
of error which
203,
Bonczynski, 227 Neb.
Under relevant evidence is to be § among things, danger prejudice. a of unfair State other there is Nesbitt, 32, (1987). N.W.2d 314 In the context v. 226 Neb. 27-403, tendency suggest prejudice” “unfair means a a of § Wilson, improper supra. State v. decision on an basis. discovery
While it is true that the circumstances of the of 14-year-old girl with a drunk defendant closeted a bathroom issues, may questions regarding impermissible raise inferential criminality for sexual or his such as the defendant’s character situation, attempt made at particular motives in that no was concerning any trial to adduce evidence liberties the defendant girl, may young taken then or at other time with the have any person Upon with nor other than victim. review of trial, daughter evidence adduced at it is clear that the victim’s drama, only part played an extra’s bit in this unfortunate largely being necessary mention of her confined to the explanation first with of victim’s encounter defendant. circumstances, admitting Under these it cannot be said that unfairly prejudicial evidence was such as to constitute an abuse assignment of the trial court’s discretion. Defendant’s first of error is without merit. therefore SILENCE
EVIDENCE CONCERNING receipt, as error the district court’s Defendant next claims “regarding pre-arrest objection, over his of evidence his again, Once we must note that defendant’s silence.” accurate; of the evidence is not it is clear that characterization prior Hoch did not occur his refusal to discuss R.L.’s with but, rather, under to an arrest occurred when was arrest on outstanding traffic warrants. recently Lofquest, noted in State v.
As this court 567, (1988) (Lofquest II), prosecutory silence, possibly references to a defendant’s which includes a period warnings given, of time after the Miranda violate were Ohio, Doyle 2240, 49 principles 426 U.S. 96 S. Ct. Const, L. 2d (1976), Ed. which holds that U.S. amend. XIV prohibits prosecutors using post from -Miranda silence to impeach story exculpatory told for the first time at trial. Furthermore, although, theoretically, violation Doyle rights may defendant’s at trial be harmless error if the beyond record demonstrates the absence of harm a reasonable II, doubt, Lofquest supra, this court has also stated that Doyle rarely principles violations of the are harmless error in against cases where it becomes the word of a defendant witness, key prosecution word of a and the matter of the *10 credibility significant prosecutory defendant’s is so that error cannot, attacking credibility beyond be harmless a LofquestII, supra. reasonable doubt. II, case, Lofquest
In
as in defendant’s
eyewitnesses
there were no
to the attack on the victim.
certainly
This was
a
where
credibility
case
the defendant’s
played major
jury’s
aas witness
a
role in the
evaluation of
veracity
story.
comments
prosecutor’s
of his
during
closing
trial and in
could not be said to constitute
inconsequential passing
remark
appellant’s
jury
silence. The
was allowed to consider these comments
fully,
objection
overruled,
after a defense
which was
obviously
given. (See
no curative instruction was
Greer v.
Miller, _ U.S. _
3102,
107 S. Ct.
101
Doyle
egregious
violations in this case were so
they
beyond a
prejudicial
were not harmless
doubt,
required.
reasonable
and a reversal is
571, 418
(Citations omitted.) 227 Neb. at
N. W.2d at 597-98.
87, 89,
Lofquest,
As this court observed State v.
N.W.2d 115, 117
(1986) (Lofquest
I):
rights immediately
If the defendant was advised of his
upon
prosecutor’s
arrest and the
remarks refer to his
silence,
Ohio,
postarrest, post
Doyle
-Miranda
then
610,
2240,
(1976), governs,
U.S.
96 S. Ct.
102
authority,
discuss,
nor
crime which he
we find no
declined
implicit
any,
supports
the
does
State direct us to
which
its
proposition
that
State must observe constitutional
provisions
suspect
when
a
under arrest about the
questioning
may
arrested,
disregard
crime
but
those
for which he has been
protections
putting
suspect
same constitutional
when
to the
fact,
questions
Supreme
crimes. In
the U.S.
Court
about other
Roberson,
v.
recently
has
determined otherwise.
56
Arizona
15,
(U.S.
(No. 87-354),
U.S.L.W.
June
1988)
4590
held
suspect
custody
when a
with
is
for a crime
connection
silent,
may
expressed
police
which he has
a desire to remain
sum,
not initiate interrogation concerning a different crime. In
prosecutor may
a
not refer to a
postarrest,
criminal defendant’s
Weir,
post
603, 102
-Miranda
Fletcher
455
silence.
v.
U.S.
S. Ct.
1309,
Ohio,
610,
(1982); Doyle
DECISION Accordingly, we have no alternative but to reverse defendant’s conviction remand the cause for a new trial.
Reversed and remanded A NEW FOR TRIAL. *12 J., dissenting. Boslaugh, concerning
In view evidence the defendant’s of the scientific concerning testimony regarding type, blood I believe the error beyond the defendant’s silence was harmless a reasonable doubt. Terry appellant. Nebraska, appellee, Clark,
State of L. July 1, 1988. Filed No. 87-802.