State v. Case
| Decision Date | 06 August 1996 |
| Docket Number | No. A-95-826,A-95-826 |
| Parties | STATE of Nebraska, Appellee, v. Robert CASE, Appellant. |
| Court | Nebraska Court of Appeals |
Syllabus by the Court
1. Indictments and Informations. An information must apprise a defendant with reasonable certainty of the charges against him so that he may prepare a defense to the prosecution and be able to plead a judgment of conviction as a bar to a later prosecution for the same offense.
2. Indictments and Informations. An information which alleges the commission of a crime using the language of the statute which defines the crime is generally sufficient.
3. Indictments and Informations. When a defendant wishes to challenge the certainty and particularity of the information for the preparation of his defense, a motion to quash is the proper method of attack.
4. Indictments and Informations: Waiver. All defects which may be excepted to by a motion to quash are considered waived by a defendant who pleads the general issue.
5. Indictments and Informations: Pretrial Procedure: Double Jeopardy. The sufficiency of the information for double jeopardy purposes is not waived by pleading at arraignment and proceeding to trial without challenging the information.
6. Constitutional Law: Sexual Assault: Indictments and Informations: Double Jeopardy: Time. In the event a future prosecution is undertaken by the State against a defendant convicted of sexual assault, the defendant can plead that further prosecution based on a sexual assault during any time period set out in the information for the prosecution in which the defendant has been convicted is barred by the Double Jeopardy Clause of the U.S. Constitution because of the "blanket bar."
7. Confessions: Proof. The especially damning nature of a confession requires the State to prove that a statement was voluntary before it is admissible.
8. Motions to Suppress: Confessions: Proof. At a suppression hearing, the State has the burden to establish voluntariness by a preponderance of the evidence.
9. Confessions: Appeal and Error. A determination by the trial court that a statement was made voluntarily will not be disturbed on appeal unless the court's determination was clearly wrong.
10. Rules of Evidence: Expert Witnesses: Appeal and Error. The determination of whether a witness qualifies as an expert under Neb. Evid. R. 702 is a preliminary question of admissibility for the trial court under Neb. Evid. R. 104(1) and depends upon the factual basis or reality behind the witness' title or claim to expertise, and the trial court's determination will be upheld on appeal unless the court's finding is clearly erroneous.
11. Rules of Evidence: Expert Witnesses. If the trial court determines that a witness is qualified to provide an expert opinion pursuant to Neb. Evid. R. 702, the court must next determine whether the expert's opinion will assist the trier of fact.
12. Trial: Rules of Evidence: Expert Witnesses: Appeal and Error. The trial court's determination of whether an expert's opinion testimony will be helpful to the jury or assist the trier of fact in accordance with Neb. Evid. R. 702 is a determination involving the discretion of the trial court, whose ruling on the admissibility of an expert's testimony or opinion will be upheld on appeal unless the trial court abused its discretion.
John D. Feller, of Feller Law Office, P.C., West Point, for appellant.
Don Stenberg, Attorney General, and Barry Waid, Lincoln, for appellee.
Appellant, Robert Case, challenges his convictions of two counts of first degree sexual assault, see Neb.Rev.Stat. § 28-319(1)(c) (Reissue 1989), and three counts of sexual assault of a child, see Neb.Rev.Stat. § 28-320.01 (Reissue 1995). Case challenges the district court's orders denying Case's request for bill of particulars and Case's motion to
suppress statements and the district court's order granting the State's motion in limine. Because we find no error, we affirm.
Appellant, Robert Case, resided with his wife and 16-year-old son in Oakland, Nebraska. At the time of the filing of the information in this case, Case was 46 years old and was employed by the Oakland-Craig Public Schools as a janitor. On or about July 28, 1994, the son made allegations that Case had been sexually assaulting him over a period of several years.
The son accused Case of subjecting him to fondling beginning when the son was approximately 6 years old. He alleged that Case subjected him to repeated incidents of fondling and mutual masturbation over a period of approximately 10 years. The son further alleged that the fondling escalated to episodes of oral sex beginning when he was in sixth or seventh grade. He alleged that the fondling episodes occurred in several locations, including the family home, Case's pickup truck, the Oakland City Auditorium, and Case's mother's home. The son testified that the episodes of oral sex occurred exclusively in the family home.
On July 29, Case drove himself to the Nebraska State Patrol offices in Norfolk, Nebraska, to take a polygraph examination. At that time, Sgt. Ronald Hilliges of the Nebraska State Patrol conducted a prepolygraph interview. Hilliges informed Case of his rights, and Case signed two different rights advisory forms. Hilliges repeatedly reminded Case that the entire procedure was voluntary and that Case could stop or refuse to take the test at any time. During the prepolygraph interview, Case made several incriminating statements to Hilliges. As a result of the incriminating statements, the polygraph test was never administered.
An information was filed on October 4, charging Case with seven counts of sexual misconduct. Specifically, the information alleged as follows:
COUNT I
That Robert Case, on or about September 1, 1989, through May 31, 1990, in the County of Burt and State of Nebraska, then and there being a person of more than nineteen years of age, did then and there subject [the son], a person of less than sixteen years of age, to sexual penetration;
COUNT II
That Robert Case, on or about September 1, 1989, through May 31, 1990, in the County of Burt and State of Nebraska, then and there being nineteen years of age or older, subjected [the son], a child 14 years of age or younger, to sexual contact;
And further, that Robert Case, on or about September 1, 1990, through May 31, 1991, in the County of Burt and State of Nebraska, then and there being a person of more than nineteen years of age, did then and there subject [the son], a person of less than sixteen years of age, to sexual penetration;
That Robert Case, on or about September 1, 1990, through May 31, 1991, in the County of Burt and State of Nebraska, then and there being nineteen years of age or older, subjected [the son], a child 14 years of age or younger, to sexual contact;
That Robert Case, on or about September 1, 1991, through May 31, 1992, in the County of Burt and State of Nebraska, then and there being a person of more than nineteen years of age, did then and there subject [the son], a person of less than sixteen years of age, to sexual penetration;
County of Burt and State of Nebraska, then and there being nineteen years of age or older, subjected [the son], a child 14 years of age or younger, to sexual contact;
That Robert Case, on or about September 1, 1992, through December 31, 1992, in the County of Burt and State of Nebraska, then and there being a person of more than nineteen years of age, did then and there subject [the son], a person of less than sixteen years of age, to sexual penetration.
Case was arraigned on October 11, 1994. Case waived the reading of the information, pled not guilty to all seven counts, was advised of his rights, and requested a jury trial.
On October 26, Case filed a motion in limine regarding any discussion of the polygraph examination at trial. On the same date, Case also filed a motion requesting a psychiatric examination of the son.
On December 9, Case filed a motion for bill of particulars, requesting the State to inform him of the exact location, date, time, and precise manner of commission of the criminal acts contained in the information. On December 20, the State filed objections to the motion for psychiatric examination of the son and the motion for bill of particulars.
On December 21, the court conducted a hearing on Case's motion in limine, motion for psychiatric examination of the son, and motion for bill of particulars. At that hearing, Case withdrew the motion in limine. The court received evidence and heard argument on the remaining motions and took the matters under advisement. On January 30, 1995, the court entered an order overruling Case's motion for psychiatric examination of the son and motion for bill of particulars.
On March 23, the State filed numerous motions in limine, including a motion in limine to prevent Case from calling a witness purported to be an expert in the field of coercive interview tactics. Case proposed to call Dr. Ralph Underwager to testify that the interview tactics employed by Sergeant Hilliges during the prepolygraph interview were coercive and led Case to make involuntary statements.
On March 27, Case filed a motion in limine regarding the polygraph examination and a motion to suppress statements made during the prepolygraph interview. Case alleged that any statements he made were coerced.
The State's motions in limine and Case's motion in limine and motion to suppress were scheduled for hearing on April 4. On that date, Case filed a motion for continuance, seeking a continuance of the hearing and the trial because of health problems experienced by Dr. Underwager. The court granted a continuance of the trial to May 22. The court also...
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