State v. Cullen
| Decision Date | 06 November 2015 |
| Docket Number | No. S–14–509,S–14–509 |
| Citation | 870 N.W.2d 784 |
| Parties | State of Nebraska, appellee, v. Sarah A. Cullen, appellant. |
| Court | Nebraska Supreme Court |
Barry S. Grossman and Michael J. Fitzpatrick for appellant.
Douglas J. Peterson, Attorney General, and Stacy M. Foust, Lincoln, for appellee.
Heavican, C.J., Wright, Connolly, McCormack, Miller–Lerman, Cassel, and Stacy, JJ.
1. Motions for Mistrial: Appeal and Error.Whether to grant a motion for mistrial is within the trial court's discretion, and an appellate court will not disturb its ruling unless the trial court abused its discretion.
2. Rules of Evidence: Other Acts: Appeal and Error.It is within the discretion of the trial court to determine relevancy and admissibility of evidence of other wrongs or acts under Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27–404(2) (Cum. Supp. 2014), and the trial court's decision will not be reversed absent an abuse of discretion.
3. Sentences: Appeal and Error.An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court.
4. Judgments: Words and Phrases.An abuse of discretion occurs when a trial court's decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence.
5. Effectiveness of Counsel: Appeal and Error.Whether a claim of ineffective assistance of trial counsel may be determined on direct appeal is a question of law. In reviewing claims of ineffective assistance of counsel on direct appeal, an appellate court decides only questions of law: Are the undisputed facts contained within the record sufficient to conclusively determine whether counsel did or did not provide effective assistance and whether the defendant was or was not prejudiced by counsel's alleged deficient performance?
6. Rules of Evidence: Other Acts.Under Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27–404(2) (Cum. Supp. 2014), evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he or she acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
7. Rules of Evidence: Other Acts.Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27–404(2) (Cum. Supp. 2014), does not apply to evidence of a defendant's other crimes or bad acts if the evidence is inextricably intertwined with the charged crime.
8. Rules of Evidence: Other Acts.Inextricably intertwined evidence includes evidence that forms part of the factual setting of the crime, or evidence that is so blended or connected to the charged crime that proof of the charged crime will necessarily require proof of the other crimes or bad acts, or if the other crimes or bad acts are necessary for the prosecution to present a coherent picture of the charged crime.
9. Criminal Law: Trial: Evidence: Appeal and Error.An error in admitting or excluding evidence in a criminal trial, whether of constitutional magnitude or otherwise, is prejudicial unless the error was harmless beyond a reasonable doubt.
10. Verdicts: Juries: Appeal and Error.Harmless error review looks to the basis on which the jury actually rested its verdict; the inquiry is not whether in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the actual guilty verdict rendered was surely unattributable to the error.
11. Trial: Appeal and Error.In order to preserve, as a ground of appeal, an opponent's misconduct during closing argument, the aggrieved party must have objected to improper remarks no later than at the conclusion of the argument.
12. Trial: Evidence: Appeal and Error.An objection, based on a specific ground and properly overruled, does not preserve a question for appellate review on any other ground.
13. Appeal and Error.Plain error may be found on appeal when an error, unasserted or uncomplained of at trial, but plainly evident from the record, prejudicially affects a litigant's substantial right and, if uncorrected, would result in damage to the integrity, reputation, and fairness of the judicial process.
14. Trial: Prosecuting Attorneys: Juries.Prosecutors are charged with the duty to conduct criminal trials in such a manner that the accused may have a fair and impartial trial, and prosecutors are not to inflame the prejudices or excite the passions of the jury against the accused.
15. Trial: Prosecuting Attorneys: Juries.A prosecutor's conduct that does not mislead and unduly influence the jury does not constitute misconduct.
16. Sentences.When imposing a sentence, a sentencing judge should consider the defendant's (1) age, (2) mentality, (3) education and experience, (4) social and cultural background, (5) past criminal record or record of law-abiding conduct, and (6) motivation for the offense, as
well as (7) the nature of the offense, and (8) the amount of violence involved in the commission of the crime.
17. Sentences.The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge's observation of the defendant's demeanor and attitude and all the facts and circumstances surrounding the defendant's life.
18. Postconviction: Effectiveness of Counsel: Proof: Appeal and Error.In order to show ineffective assistance of counsel under Strickland v. Washington,466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a defendant must show, first, that counsel was deficient and, second, that the deficient performance actually caused prejudice to the defend-ant's case.
19. Effectiveness of Counsel: Proof: Presumptions: Appeal and Error.The two prongs of the ineffective assistance of counsel test under Strickland v. Washington,466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), may be addressed in either order, and the entire ineffectiveness analysis should be viewed with a strong presumption that counsel's actions were reasonable.
20. Effectiveness of Counsel: Proof.Prejudice caused by counsel's deficiency is shown when there is a reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different.
21. Proof: Words and Phrases.A reasonable probability is a probability sufficient to undermine confidence in the outcome.
22. Effectiveness of Counsel: Records: Appeal and Error.The fact that an ineffective assistance of counsel claim is raised on direct appeal does not necessarily mean that it can be resolved. The determining factor is whether the record is sufficient to adequately review the question.
23. Trial: Effectiveness of Counsel: Evidence: Appeal and Error.An ineffective assistance of counsel claim will not be addressed on direct appeal if it requires an evidentiary hearing.
24. Motions to Strike: Jury Instructions.When an objection to or motion to strike improper evidence is sustained and the jury is instructed to disregard it, such instruction is deemed sufficient to prevent prejudice.
In this direct appeal, Sarah A. Cullen challenges her conviction, pursuant to jury verdict, and her sentence for intentional child abuse resulting in death.1 An infant died after being in Cullen's care. She primarily argues that evidence of the child's prior injuries while in her care should have been excluded as prior bad acts under rule 404 of the Nebraska Evidence Rules.2 We conclude that the prior injuries were inextricably intertwined with the fatal ones. We also reject Cullen's assertions of improper closing argument, prosecutorial misconduct, excessive sentence, and ineffective assistance of trial counsel. Accordingly, we affirm.
Cash Christopher Bell, born in October 2012, was the son of Christopher (Chris) Bell and Ashley Bell. Prior to the events summarized below, Cash had no medical issues.
In January 2013, the Bells hired Cullen to work temporarily as a nanny for Cash in their home, pending the opening of a new daycare in June 2013. Cullen's first day alone with Cash was on January 7, when Ashley returned to work from maternity leave. Cash was about 3 months old.
On the morning of February 28, 2013, Chris woke up at approximately 6 a.m. He changed Cash's diaper, fed him a bottle, and then brought him downstairs to Ashley. Ashley put Cash in a bassinet while she finished getting ready for work. The Bells testified that it was a typical morning. Cash was active, making eye contact, smiling, cooing, and laughing.
Chris left for work between 6:45 and 7 a.m. Cullen arrived for work at the Bells' home at 7:15 a.m. Ashley left for work around 7:40 a.m.
Shortly after 9:19 a.m., Chris returned home to get his checkbook. As Chris entered the house, he yelled out to Cullen that he had forgotten his checkbook. He then heard Cash breathing. He turned and found Cash lying face down in the Pack 'N Play nearby. Chris rolled him over. Cash did not open his eyes, and he took “a little breath.” Cash's blanket was around his face and chest area, and Chris moved it down to his waist. Chris believed that Cash was sleeping. At about the same time he heard Cash breathing, Chris heard Cullen in the nearby bathroom. After he rolled Cash over, Chris grabbed his checkbook. As he was leaving, he heard Cullen ask him if he woke Cash up. Chris estimated that he was in the house not more than a minute. As Chris was getting into his car, Cullen came to the door with Cash in her arms and asked Chris what he said when he first walked in the house. Chris could see only the back of Cash's head.
At approximately 10:15 a.m., Cullen called her boyfriend, Andrew Ullsperger, and told him that Cash was not breathing and that his feet were blue. Ullsperger immediately proceeded to the Bell residence to take Cash and Cullen to a local hospital. When Ullsperger arrived at the Bell residence, Cash was not responsive, but he was breathing. Cullen told Ullsperger nothing...
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