State v. Draper
| Decision Date | 09 January 2015 |
| Docket Number | No. S-13-991,S-13-991 |
| Parties | State of Nebraska, appellee, v. Peter Francis Draper, appellant. |
| Court | Nebraska Supreme Court |
Charles D. Brewster, Kearney, of Anderson, Klein, Swan & Brewster, for appellant.
Jon Bruning, Attorney General, and Stacy M. Foust, Lincoln, for appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack, Miller–Lerman, and Cassel, JJ.
1. Constitutional Law: Witnesses: Appeal and Error.An appellate court reviews de novo a trial court's determination of the protections afforded by the Confrontation Clause of the Sixth Amendment to the U.S. Constitution and article I, § 11, of the Nebraska Constitution and reviews the underlying factual determinations for clear error.
2. Statutes: Appeal and Error.Statutory interpretation presents a question of law, which an appellate court reviews independently of the lower court's determination.
3. Jury Instructions: Appeal and Error.Whether jury instructions are correct is a question of law, which an appellate court resolves independently of the lower court's decision.
4. Motions for New Trial: Appeal and Error.A trial court's order denying a motion for new trial is reviewed for an abuse of discretion.
5. Trial: Prosecuting Attorneys: Witnesses: Self–Incrimination: Appeal and Error.Under Namet v. United States,373 U.S. 179, 83 S.Ct. 1151, 10 L.Ed.2d 278 (1963), when a prosecutor calls a witness to the stand with the knowledge that the witness will invoke the privilege against self-incrimination, reversible error exists either when the prosecution makes a conscious and flagrant attempt to build its case out of inferences arising from use of the testimonial privilege or when inferences from a witness' refusal to answer adds critical weight to the prosecution's case in a form not subject to cross-examination.
6. Trial: Courts: Witnesses: Self–Incrimination.Absent extraordinary circumstances, trial courts should exercise their discretion to forbid parties from calling witnesses who, when called, will only invoke a privilege.
7. Constitutional Law: Criminal Law: Trial: Witnesses.The Confrontation Clauses of U.S. Const. amend. VI and Neb. Const. art. I, § 11, guarantee the right of an accused in a criminal prosecution to be confronted with the witnesses against him or her.
8. Constitutional Law: Criminal Law: Trial: Witnesses.The right of confrontation, which is secured for defendants in state as well as federal criminal proceedings, means more than being allowed to confront the witness physically.
9. Constitutional Law: Witnesses.The purpose of the right of confrontation is primarily to guarantee a right for the accused to cross-examine witnesses against him or her.
10. Constitutional Law: Testimony: Evidence.The Confrontation Clause was designed to prevent depositions or ex parte affidavits from being used against a prisoner in lieu of a personal examination and cross-examination of the witness, and courts must interpret the Sixth Amendment with this focus in mind.
11. Trial: Courts: Witnesses.Pursuant to Neb. Evid. R. 611, Neb.Rev.Stat. § 27–611 (Reissue 2008), courts limit cross-examination of witnesses to the subject matter of the direct examination and matters affecting the credibility of the witness.
12. Criminal Law: Appeal and Error. Not all trial errors, even trial errors of constitutional magnitude, entitle a criminal defendant to the reversal of an adverse trial result.
13. Appeal and Error.When determining whether an alleged error is so prejudicial as to justify reversal, courts generally consider whether the error, in light of the totality of the record, influenced the outcome of the case.
14. Convictions: Appeal and Error.It is only prejudicial error, that is, error which cannot be said to be harmless beyond a reasonable doubt, which requires that a conviction be set aside.
15. Courts: Trial: Witnesses: Evidence.Namet v. United States,373 U.S. 179, 83 S.Ct. 1151, 10 L.Ed.2d 278 (1963), instructs courts to consider the invocation of a privilege within the entire context of the case and other evidence presented to the jury.
16. Constitutional Law: Trial: Witnesses.The right to cross-examine a witness is critical for ensuring the integrity of the factfinding process and is an essential requirement for a fair trial.
17. Trial: Motions to Strike: Jury Instructions: Presumptions.An objection followed by an admonition or instruction is typically presumed to be sufficient to dispel prejudice.
18. New Trial: Appeal and Error.While any one of several errors may not, in and of itself, warrant a reversal, if all of the errors in the aggregate establish that a defendant did not receive a fair trial, a new trial must be granted.
19. Appeal and Error.An appellate court is not obligated to engage in an analysis that is not needed to adjudicate the controversy before it.
20. Criminal Law: Evidence: New Trial: Appeal and Error.Upon finding reversible error in a criminal trial, an appellate court must determine whether the total evidence admitted by the district court, erroneously or not, was sufficient to sustain a guilty verdict.
21. Evidence: New Trial: Double Jeopardy: Appeal and Error.If evidence is not sufficient to sustain a verdict after an appellate court finds reversible error, then double jeopardy forbids a remand for a new trial.
Peter Francis Draper was convicted in the district court for Franklin County, Nebraska, of intentional child abuse resulting in death and intentional child abuse resulting in serious bodily injury. Draper appeals his convictions. Because of cumulative error concerning both the Confrontation Clause under the Sixth Amendment and Neb. Evid. R. 513, Neb.Rev.Stat. § 27–513 (Reissue 2008), we reverse the convictions and remand the cause for a new trial.
This case involves the alleged abuse and subsequent death of 2–year–old Joseph Rinehart, Jr. (Joe Jr.). Draper was Joe Jr.'s maternal grandfather. Laura Rinehart, Joe Jr.'s mother, and Nancy Draper (Nancy), Draper's wife and Joe Jr.'s grandmother, were also both charged and convicted of related crimes.
The Drapers lived in a three-bedroom mobile home in Naponee, Franklin County, Nebraska. In March or April 2011, Rinehart and her husband, along with their four children, moved from Racine, Wisconsin, to Naponee. The Rineharts moved into the Drapers' residence. At the time of trial, the Rineharts' surviving three children ranged in age from 2 to 6 years old. In June or July, Rinehart's husband moved out of the house, and at the time of trial, Rinehart and her husband were “going through a separation” but were not yet divorced.
In exchange for a lighter sentence, Rinehart agreed to testify against Draper and Nancy. At trial, Rinehart gave accounts of various times Draper allegedly abused Joe Jr. This abuse purportedly resulted in several different severe injuries to Joe Jr. over the year prior to his death. According to Rinehart, the discipline administered by Draper that eventually caused Joe Jr.'s death occurred on April 25, 2012. Rinehart testified that she saw Draper “pin” Joe Jr. down on a bed with his knee in Joe Jr.'s stomach and groin area. Rinehart testified that she saw Draper do this three different times.
After this incident, Joe Jr.'s condition began to deteriorate. Rinehart and Nancy took Joe Jr. to the hospital at
approximately 6 p.m. on Monday, April 30, 2012. Rinehart told hospital staff that Joe Jr. had diarrhea and had been vomiting for the last several days. When the doctor on call for the hospital arrived, he ordered an x ray of Joe Jr.'s abdomen. The x ray came back negative for injuries, and Joe Jr. was treated for constipation. He was given fluids, mineral oil, and a glycerin suppository. He was then discharged from the hospital.
Rinehart testified that on the ride home from the hospital, Joe Jr. started to breathe strangely and became nonresponsive. After they arrived home, Joe Jr. started having what Rinehart described as a seizure and eventually he stopped breathing. Joe Jr. was brought back to the hospital at approximately 7:55 p.m. Joe Jr. was not breathing when he arrived at the hospital and staff attempted to perform cardiopulmonary resuscitation. Joe Jr. was declared deceased at 8:41 p.m.
After Joe Jr.'s death, hospital staff contacted the Franklin County sheriff's office. Investigators from the Nebraska State Patrol, along with a deputy from the Franklin County sheriff's office, interviewed Draper, Nancy, and Rinehart at the Draper residence the night of Joe Jr.'s death. Draper told law enforcement that Joe Jr. and his brother had a “bone disease.” Draper denied that Joe Jr.'s death was caused by physical violence. He did admit that he, Rinehart, and Nancy were the only people who looked after Joe Jr.
An autopsy was performed shortly after Joe Jr.'s death. The cause of death was determined to be multiple blunt force trauma of the head, trunk, and extremities. The manner of death was ruled to be homicide. Post mortem CT scans on Joe Jr. revealed numerous injuries, including a lateral skull fracture, a perforated bowel, a fractured pelvic bone, and healed-over rib fractures. The skull fracture and pelvic bone fracture appeared to have occurred within the previous 2 weeks. The skull fracture was likely caused by “direct, broad force against the skull.” Several bruises on Joe Jr.'s body were documented and were determined to have developed within 24 hours of his death. There was also severe swelling of Joe Jr.'s brain and an excessive amount of bleeding in his abdominal cavity.
After the autopsy, on May 2, 2012, all three adults were interviewed by law enforcement again at separate locations. Rinehart described how Draper put his knee in Joe Jr.'s abdomen, but did not offer any other instances of potential abuse by Draper. After this second round of interviews, all three were arrested. On May 3, while in custody, both Rinehart and Nancy were interviewed again. This time, Rinehart gave a full account of the...
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