State v. Cook
| Decision Date | 30 November 1990 |
| Docket Number | No. 89-1344,89-1344 |
| Citation | 236 Neb. 636,463 N.W.2d 573 |
| Parties | STATE of Nebraska, Appellee, v. Charles T. COOK, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Trial: Testimony. A trial judge may not exclude testimony merely because it offends him or her.
2. Trial: Expert Witnesses. A trial judge may not prohibit one expert from disagreeing with another.
3. Criminal Law: Due Process: Sentences. A criminal defendant is not accorded the same procedural protections during the sentence-determining phase as during the guilt-determining phase of trial.
4. Criminal Law: Due Process: Sentences. The sixth amendment right to be "confronted with the witnesses against" one is not applicable to the sentencing phase of a criminal trial.
5. Criminal Law: Due Process: Sentences. In the sentencing context the right of confrontation is subsumed in the principles of due process.
6. Due Process. A claim that one is being deprived of a liberty interest without due process of law is typically examined in three stages; the question in the first stage is whether there is a protected liberty interest at stake; if so, the analysis proceeds to the second stage, in which it is determined what procedural protections are required; upon the resolution of that issue, the analysis moves on to the third and final stage, in which the facts of the case are examined to ascertain whether there was a denial of that process which was due.
7. Due Process. The procedural protections required by the due process clause must be determined with reference to the rights and interests at stake in the particular case.
8. Due Process: Mentally Disordered Sex Offender. Although a convicted sex offender is entitled to adduce documentary evidence on the issue of whether he or she is mentally disordered and treatable, such an offender is not entitled to confront adverse witnesses or adduce testimony on that issue.
9. Mentally Disordered Sex Offender: Appeal and Error. Whether a convicted sex offender is mentally disordered and treatable is a question of fact and, as such, the determination of the trier of fact will not be disturbed absent an abuse of discretion.
10. Trial: Expert Witnesses. The opinion of any given expert witness is not binding on the trier of fact.
Rodney J. Palmer, of Palmer & Kozisek, P.C., Ainsworth, for appellant.
Robert M. Spire, Atty. Gen., and Alfonza Whitaker, Omaha, for appellee.
Defendant, Charles T. Cook, pled guilty to a charge of sexual assault of a child, in violation of Neb.Rev.Stat. § 28-320.01(1) (Reissue 1989), and was so adjudged. He was thereafter sentenced to imprisonment for a period of not less than 1 1/2 nor more than 5 years, was fined $2,500, and, because the trial judge found that he is a treatable mentally disordered sex offender, was committed to the Lincoln Regional Center until he received the maximum treatment, served his sentence, or was discharged. Cook assigns two errors, claiming that the trial judge erred by (1) refusing to receive at the sentencing hearing the testimony of a psychiatrist challenging the result of an intelligence test administered by a psychologist, and (2) finding his status to be that of a treatable mentally disordered sex offender. We affirm.
The record shows that Cook engaged in a sexual relationship resulting in at least 15 instances of intercourse with the eldest of his four stepdaughters during a 1- to 1 1/2-year period. He was 22 years old when the relationship began and 23 years 9 months old when it ended; the stepdaughter was 12 years old and 13 years 11 months old, respectively. After the relationship ended at the stepdaughter's request, Cook attempted on more than one occasion to reinitiate it. He also, during the year-plus that elapsed from the end of the relationship to the time it came to light, made a sexual advance toward another stepdaughter who was then 11 years old.
The court below ordered Y. Scott Moore, a psychiatrist, and H.L. Balters, a clinical psychologist, to examine Cook and file written reports expressing whether, in each of their opinions, Cook is a mentally disordered sex offender. Moore and Balters each submitted a report stating that in his opinion, Cook is such a person and, in Moore's opinion at least, is treatable.
It is apparent, however, that Moore was somewhat mistaken as to the victim's age at the relevant time, for his report states that Cook "actively engaged in sex with a 10 to 12 year old girl over a year and a half," when in fact the victim was, as stated earlier, a bit older. Moore's finding that Cook is a mentally disordered sex offender appears to be based on the facts that Cook engaged in regular sexual intercourse with a child over a period of 1 1/2 years, that he had that child perform oral sex on him, that he sexually approached the child's younger sister, and that he displayed a "rather cavalier [attitude] about the entire episode."
Balters had Cook submit to, among other things, an intelligence test, on the basis of which Balters concluded that Cook functioned within the superior range of intellect. This result was somewhat at odds with other test results, and as a consequence, Balters noted that "[p]robably the most that one can attribute to these actuarial scores is that [Cook] is somewhat more adept at being able to decipher abstract relationships than he is for contending with words and verbal concepts." There is no indication, other than the above-quoted reference, that any of the test results constituted a basis for Balters' conclusion that Cook is a mentally disordered sex offender.
After receiving the foregoing evaluations, Cook was permitted to obtain additional separate evaluations by Daniel K. Sturgis, a clinical psychologist, and J.N.L. O'Sullivan, a psychiatrist. Each rendered a report opining that Cook is not a mentally disordered sex offender.
Sturgis administered a different intelligence test than did Balters, the results of which indicated that Cook's intellectual ability fell within the average range, and Sturgis specifically questioned Balters' finding that Cook's intellectual ability fell within the superior range. Sturgis agreed, however, with Balters' interpretation of another test that Cook would have trouble following societal standards and that psychological treatment would be difficult. Sturgis also expressed the views that the program at the Lincoln Regional Center was in turmoil because of changes in the professional staff, that the facility was misused, and that Cook was not a good candidate for placement therein.
O'Sullivan observed that Cook claimed Balters had had him complete tests at home. While O'Sullivan did not conduct any formal intelligence tests on Cook, he was of the opinion that Cook was "functioning in the low normal range of intellectual functioning." In O'Sullivan's opinion, it would be advisable, should Cook be incarcerated in the "Lincoln State Penitentiary," to have him participate "in whatever therapeutic programs are currently available there."
When asked at the sentencing hearing if he had any additions or corrections to the presentence report, which contained the four evaluations detailed above, Cook did not dispute any of the reported facts but did offer some letters of recommendation regarding his sentence. These letters were made a part of the presentence report.
Cook then called O'Sullivan as a witness and attempted to elicit testimony concerning the proper manner of administering the intelligence test given him by Balters. The trial judge, in response to the State's objections, refused to receive that evidence, saying:
Nor do I care to have the doctor sit here and criticize the other doctors. Not only would I not like it, but it wouldn't be right.
....
... I do not care to have the doctor's criticism of the other doctors' work. If we are going to do that, I have to get the other doctors here to defend themselves....
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... I do not care for such testimony and will not listen to it....
....
... [U]nder Section 29-2913, the reports of the mentally disordered sex offender, of the defendant evaluations shall be made a part of the presentence and shall be filed with the court at least ten days prior to the date set for sentencing. Copies of such reports shall be furnished to the county attorney. The effect of [the] oral testimony is to expand that report as of the day of the sentencing. I do not think that is a fair procedure, and I do not think that it is one that will lend towards the quest for truth, but only the truth as one side sees it, and therefore I will not let you expand on the report except if there is some additional information relative to the defendant, and then I will, but otherwise I will not hear it.
In later overruling Cook's motion for new trial, the trial judge stated that in his opinion Cook's experts, in discussing what was wrong with the system and advising as to the penalty the court should impose, had become advocates and had thereby destroyed their credibility with him.
The process of identifying and dealing with mentally disordered sex offenders is controlled by Nebraska's mentally disordered sex offender act, Neb.Rev.Stat. §§ 29-2911 through 29-2921 (Reissue 1989). Under the act the commission of, among other things, any felony in which the sexual excitement of the person committing the crime is a substantial motivational factor is a sexual offense. § 29-2911(1)(b). According to Neb.Rev.Stat. § 28-318(5) (Reissue 1989), sexual contact consists of the intentional touching of a
victim's sexual or intimate parts or the intentional touching of the victim's clothing covering the immediate area of the victim's sexual or intimate parts. Sexual contact shall also mean the touching by the victim of the actor's sexual or intimate parts or the clothing...
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