State v. Carter

• Decision Date: 02 December 1994
• Docket Number: No. S-93-777,S-93-777
• Citation: 246 Neb. 953,524 N.W.2d 763
• Parties: , 63 USLW 2399 STATE of Nebraska, Appellee, v. Asa T. CARTER, Appellant.
• Court: Nebraska Supreme Court

Page 763

524 N.W.2d 763

246 Neb. 953, 63 USLW 2399

STATE of Nebraska, Appellee, v. Asa T. CARTER, Appellant.

No. S-93-777.

Supreme Court of Nebraska.

Dec. 2, 1994.

Syllabus by the Court

1. Appeal and Error. An appellate court does not consider errors which are argued but not assigned.

2. Rules of Evidence: Other Acts. Neb.Rev.Stat. § 27-404(2) (Reissue 1989) is a rule of inclusion, rather than exclusion, and permits the use of relevant bad acts for all purposes except to prove the character of a person in order to show that the person acted in conformity with that character.

3. Rules of Evidence: Other Acts. Evidence which is otherwise admissible under Neb.Rev.Stat. § 27-404(2) (Reissue 1989) may be excluded under Neb.Rev.Stat. § 27-403 (Reissue 1989) if its probative value is substantially outweighed by other considerations.

4. Rules of Evidence: Other Acts: Appeal and Error. This court reviews the admission of evidence of other acts under Neb.Rev.Stat. § 27-404(2) (Reissue 1989) by considering (1) whether the evidence was relevant, (2) whether the evidence had a proper purpose, (3) whether the probative value of the evidence outweighed its potential for unfair prejudice, and (4) whether the trial court, if requested, instructed the jury to consider the evidence only for the purpose for which it was admitted.

5. Rules of Evidence. In all proceedings where the Nebraska Evidence Rules apply, admissibility of evidence is controlled by the Nebraska Evidence Rules, not judicial discretion, except in those instances under the Nebraska Evidence Rules when judicial discretion is a factor involved in the admissibility of evidence.

6. Rules of Evidence: Other Acts: Appeal and Error. Because exercise of judicial discretion is implicit in Neb.Rev.Stat. § 27-401 (Reissue 1989), it is within the discretion of the trial court to determine relevancy and admissibility of evidence of other wrongs or acts, and the trial court's decision will not be reversed absent an abuse of that discretion.

7. Trial: Words and Phrases. Judicial abuse of discretion means that the reasons or rulings of the trial court are clearly untenable, unfairly depriving a litigant of a substantial right, and denying a just result in matters submitted for disposition.

8. Sexual Assault: Evidence: Other Acts. Sexual crimes are offenses in which evidence of other similar sexual conduct has independent relevance, and such evidence may be admissible whether that conduct involved the complaining witness or third parties.

9. Sexual Assault: Evidence: Other Acts: Proof. Evidence of repeated incidents may be especially relevant in proving sexual crimes committed against persons otherwise defenseless due to age--either the very young or the elderly.

10. Other Acts: Evidence. Prior acts need not be identical to the act charged in order to be admissible. It is sufficient that the evidence be of similar involvement reasonably related to the charged conduct and be presented in a manner in which prejudice does not outweigh its probative value.

11. Other Acts: Evidence. Where there are an overwhelming number of significant similarities, evidence of prior acts may be admitted.

12. Other Acts: Evidence. The question in determining admissibility of evidence of prior acts is whether the crimes are so similar, unusual, and distinctive that the trier of fact could reasonably find that they bear the same signature. If so, the evidence may be admitted, and any dissimilarities merely go to the weight of the evidence.

13. Trial: Evidence. Balancing the probative value of evidence against the danger of unfair prejudice is also within the discretion of the trial court.

14. Rules of Evidence. The fact that evidence is prejudicial is not enough to require exclusion, because most, if not all, of the evidence a party offers is calculated to be prejudicial to the opposing party. It is only the evidence which has a tendency to suggest a decision on an improper basis that is unfairly prejudicial under Neb.Rev.Stat. § 27-403 (Reissue 1989).

15. Trial: Evidence: Jury Instructions. In any situation in which a limiting instruction was given at the time evidence 16. Trial: Statutes: Judgments: Time. When there has been a subsequent change in the law, it is the duty of the trial court to render a decision which reflects any change in the applicable law which occurred in the interval between the time the judge made rulings of law and the time judgment is pronounced.

was introduced, NJI2d Crim. 5.3 must be given at closing if requested.

17. Trial: Rules of Evidence: Expert Witnesses. In a DNA case, the trial court is to decide preliminarily, outside the presence of the jury, on the basis of the evidence before it: (1) whether the witnesses on the DNA issue are experts in the relevant scientific fields, (2) whether DNA testing used in the case under consideration is generally accepted by the relevant scientific communities, (3) whether the method of testing used in the case under consideration is generally accepted as reliable if performed properly, (4) whether the test conducted properly followed the method, (5) whether PCR DNA analysis evidence is more probative than prejudicial under Neb.Rev.Stat. § 27-403 (Reissue 1989), and (6) whether statistical probability evidence interpreting PCR analysis results is more probative than prejudicial.

18. Trial: Evidence. The calculation of statistical probability is an essential part of the process used in determining the significance of a DNA match; therefore, the underlying method of arriving at the calculation must also meet the Frye- Houser general acceptance test.

19. Trial: Evidence. Evidence of a DNA match will not be admissible if it has not been accompanied by statistical probability evidence that has been calculated from a generally accepted method.

20. Rules of Evidence. Although evidence may be relevant, Neb.Rev.Stat. § 27-403 (Reissue 1989) provides that it may be excluded if the evidence is more prejudicial than probative.

21. Trial: Evidence: Appeal and Error. To limit the statistical frequency evidence in DNA cases to two racial groups when the racial or ethnic background of the perpetrator is unknown is prejudicial under any circumstances.

22. Criminal Law: Trial: Juries: Evidence: Appeal and Error. In a jury trial of a criminal case, whether an error in admitting or excluding evidence reaches a constitutional dimension or not, an erroneous evidential ruling results in prejudice to a defendant unless the State demonstrates that the error was harmless beyond a reasonable doubt.

23. Verdicts: Juries: Evidence: Appeal and Error. An error is harmless when the improper admission of evidence did not materially influence the jury to reach a verdict adverse to the substantial rights of the defendant.

24. Verdicts: Juries: Evidence: Appeal and Error. It is harmless error only if the appellate court is convinced beyond a reasonable doubt that the erroneous admission of the evidence could have had no influence on the jury's judgment.

Thomas M. Kenney, Douglas County Public Defender, and Thomas C. Riley, Omaha, for appellant.

Don Stenberg, Atty. Gen., and Donald A. Kohtz, Lincoln, for appellee.

HASTINGS, C.J., BOSLAUGH, WHITE, CAPORALE, FAHRNBRUCH, LANPHIER, and WRIGHT, JJ.

PER CURIAM.

Following a trial by jury, the defendant, Asa T. Carter, was found guilty of first degree murder. The information alleged that the death of the victim had occurred during the perpetration of a sexual assault in the first degree. The defendant has appealed, assigning error on the part of the trial court in admitting testimony of prior bad acts by the defendant and in admitting evidence concerning DNA testing and the results thereof.

On October 20, 1990, at approximately 12:30 p.m., Omaha Police Officer Kevin Cunningham was advised that the body of the victim, a 9-year-old girl, had been found in an area immediately to the rear of the apartment house in Omaha in which the defendant resided with his wife, Gwelder Carter. Shortly thereafter, the defendant was arrested at the University of Nebraska Medical Center, where he was visiting his father. The defendant, along with his wife, was taken to the police station. Earlier that day, at approximately 12:15 p.m., Officer Cunningham had been directed to make contact with the defendant. At that time, the defendant told the officer that he had been informed that a little girl was missing and that a warrant had been sworn out for him, and he wanted to know if he was wanted. After checking, the officer advised the defendant that there was no warrant on him.

Although Gwelder Carter initially indicated that the defendant had nothing to do with the victim's death, she later told police that he had been responsible. Most of the details leading up to this death were obtained through the testimony of the defendant's wife. According to her, on the evening of October 19, 1990, the victim stayed overnight at the apartment of the defendant and his wife. The defendant's wife was the victim's godmother, and she was considered by the victim's family to be her "second mother." The girl had previously stayed overnight at the Carters' home, although from the record it is unclear how many times this had occurred.

The victim arrived at the Carters' in the early evening. The defendant was present at the apartment when she arrived; however, he left shortly afterward. After the defendant left, two of his friends, Lanny Hicks and David Harpster, came looking for him. Only because it will become relevant during later discussions in this case, we point out that Hicks and Harpster were white, defendant was black. Shortly thereafter, the defendant returned home. During the course of the evening and into the early morning hours, the defendant, Hicks, and Harpster periodically came to and went from the apartment. During the coming and going, Gwelder Carter and the victim remained in the bedroom. At no time did Hicks...