State v. Freeman
| Decision Date | 09 April 2004 |
| Docket Number | No. S-02-1365.,S-02-1365. |
| Citation | 267 Neb. 737,677 N.W.2d 164 |
| Parties | STATE of Nebraska, appellee v. William Brouder FREEMAN, appellant. |
| Court | Nebraska Supreme Court |
Gregory A. Pivovar and Anthony S. Troia, Omaha, for appellant.
Jon Bruning, Attorney General, and Marie Colleen Clarke, for appellee.
William Brouder Freeman was convicted of first degree sexual assault and sentenced to a term of 10 to 20 years in prison. Freeman appeals his conviction and sentence.
Sentences within statutory limits will be disturbed by an appellate court only if the sentences complained of were an abuse of judicial discretion. State v. Segura, 265 Neb. 903, 660 N.W.2d 512 (2003).
A verdict in a criminal case must be sustained if the evidence, viewed and construed most favorably to the State, is sufficient to support the verdict. State v. Shipps, 265 Neb. 342, 656 N.W.2d 622 (2003).
In reviewing a criminal conviction, an appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence. Such matters are for the finder of fact, and a conviction will be affirmed, in the absence of prejudicial error, if the properly admitted evidence, viewed and construed most favorably to the State, is sufficient to support the conviction. State v. McPherson, 266 Neb. 734, 668 N.W.2d 504 (2003).
Freeman was charged by information in the Nemaha County District Court with first degree sexual assault, a Class II felony, in violation of Neb.Rev.Stat. § 28-319(1)(a) (Reissue 1995). The information alleged that Freeman had subjected the victim to sexual penetration without her consent. An amended information was later filed, charging Freeman with violation of § 28-319(1)(a) and (b) and alleging that Freeman knew or should have known that the victim was mentally or physically incapable of resisting or appraising the nature of her conduct.
On February 15, 2001, a party was held at a house in Peru, Nebraska. The victim was a student at Peru State College, where she lived in a women's dormitory. The victim arrived at the party at about 8:30 p.m.
During the next 2 hours, the victim drank four Jack Daniel's "sippers" and about half a bottle of "apple pucker." The victim testified that she was not an experienced drinker and that she was feeling "a little" intoxicated after consuming the alcohol. The victim left the party around 10:30 p.m. to attend a dance on campus. When the dance ended at midnight, she returned to the party, which had grown to include about 75 people, including some that the victim did not know. Upon her return, the victim drank 1½ Jack Daniel's sippers, for a total alcohol consumption of nearly 6 Jack Daniel's sippers and half a bottle of apple pucker.
At some time during the party, the victim began to feel ill and asked one of the residents of the house if she could lie down. On the way to a bedroom, the victim went to the bathroom and vomited. Once in the bedroom, she lay down on the bed. The victim's next memory was when she was awakened and told that the party was over and everyone had left. She was assisted to a couch in another room because she still felt dizzy. All the lights were off in the house, and she did not remember hearing or seeing anyone else in the house.
At some time during the night, the victim awoke but saw no one in the room and went back to sleep. Her next memory was when she awoke on the floor and found a man she could not identify on top of her. She could not see the man's face because the only light in the room came from a street light outside one of the windows. The victim then realized that her pants and underwear had been removed, but her sweater and bra were still in place. The victim could feel the man's penis in her vagina.
The victim tried to push the man off, but her hands were "stuck" at her sides. The man was bigger than her and broader through the shoulders. The victim did not scream because she was scared and did not know what to do. She felt dizzy and confused. She told the man "to stop and to quit," but he did not stop. When the incident was over, the man got up, said he was going to the bathroom, and pushed the victim's pants and underwear back toward her. She did not recognize his voice, and he did not call her by name.
The victim lay on the floor for a few minutes, feeling paralyzed, scared, and confused. She then put on her underwear and pants and got up onto the couch. She questioned whether the incident actually occurred or if she had dreamed it, and she considered following the man to see who he was. The victim lay down on the couch again and fell asleep. She never saw anyone return from the bathroom.
The victim slept most of the next day. At about 3 p.m., she was awakened by two residents of the house and asked if she was all right. The victim inquired who had been at the party and whether the residents of the house heard anything or saw anyone come in or out after she moved to the couch. She then told them about the incident, and they called the school nurse, who recommended that the victim go to a hospital. The emergency room nurse testified that the victim was shaken, scared, withdrawn, and tearful at times, and had a "flat affect."
Evidence was presented which established that Freeman attended the party on the night in question and that he spent the night at the house. The State also presented evidence that the DNA from a semen stain on the victim's underwear matched Freeman's DNA.
The jury returned a guilty verdict, and the district court found that Freeman had committed a sexual offense which required him to register as a sexual offender under state law. The court found that the victim had suffered serious personal injury, and Freeman was sentenced to a term of 10 to 20 years in prison, with credit for time served. The court told Freeman that he would be eligible for parole after serving 5 years and subject to discharge after serving 10 years.
Freeman assigns as error that the district court erred (1) in allowing the State to designate a material witness as its representative to sit through the trial despite a sequestration order; (2) in allowing the jury to review a written transcript of Freeman's interview by a deputy sheriff while the jury listened to the tape recording; (3) in allowing the testimony of Jason Laferriere regarding conversations with Freeman prior to trial to show consciousness of guilt; (4) in overruling Freeman's motion for directed verdict or dismissal at the close of the State's case, which motion was based on the State's failure to prove venue and the State's failure to prove Freeman's identity; (5) in not allowing the jury to decide the issue of serious personal injury, which he suggests is an "aggravating factor" under § 28-319(2); (6) in allowing hearsay psychological/psychiatric reports at sentencing as proof of serious personal injury, violating Freeman's right to confrontation; and (7) in imposing an excessive sentence. He also assigns as error the jury's finding of guilt beyond a reasonable doubt.
Prior to trial, the State filed a notice designating Brent Lottman, a deputy sheriff for Nemaha County, as its representative for trial, citing Neb.Rev.Stat. § 27-615(2) (Reissue 1995) and State v. Jackson, 231 Neb. 207, 435 N.W.2d 893 (1989). Freeman filed an objection to the designation, arguing that Lottman was not a contemplated party under § 27-615(2) and was a material witness of a factual nature. The district court entered an order granting the State's motion to designate Lottman as its representative for trial. Freeman argues that Lottman should not have been present during the entire trial because the court had previously entered a sequestration order and because Lottman was a roommate of Laferriere, a Peru State College student who danced with the victim at the party.
Section 27-615 provides that a party may request the exclusion of witnesses during a trial. The rule does not authorize exclusion of, inter alia, "an officer or employee of a party which is not a natural person designated as its representative by its attorney." See id. In Jackson, the State designated its expert witness as its representative and the trial court allowed the expert, a doctor, to remain in the courtroom throughout the trial despite a sequestration order. On appeal, we affirmed the trial court's action in allowing the doctor to be present. Also, in State v. Canbaz, 259 Neb. 583, 611 N.W.2d 395 (2000), an expert psychological witness was allowed to remain in the courtroom during the testimony of the defendant's psychological expert. This court approved, noting that the State was limited in its ability to obtain information prior to trial concerning the defendant's mental state.
Freeman argues that because Lottman was involved with the investigation into this incident and interviewed him, Lottman was a key witness for the State and should not have been allowed to hear the testimony of other witnesses. In Jordan v. State, 101 Neb. 430, 163 N.W. 801 (1917), this court held that it was not an abuse of discretion for the trial court to allow a sheriff, who was also a witness, to remain in the courtroom despite a sequestration order. The trial court told the defendant he could file an affidavit of prejudice, but the defendant did not file one, and this court found no error because the sheriff was an officer of the court. While this court has not ruled on the issue recently, several federal cases have held that it is permissible for a law enforcement officer to be present during a trial even where a sequestration order has been entered. See, United States v. Jones, 687 F.2d 1265 (8th Cir.1982); United States v. Shearer, 606 F.2d 819 (8th Cir.1979); United States v. Woody, 588 F.2d 1212 (8th Cir.1978),cert. denied ...
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