State v. Hartmann, 90-399

• Decision Date: 25 October 1991
• Docket Number: No. 90-399,90-399
• Citation: 239 Neb. 300,476 N.W.2d 209
• Parties: STATE of Nebraska, Appellee, v. Diane K. HARTMANN, also known as Brandi Hartmann, Appellant.
• Court: Nebraska Supreme Court

Page 209

476 N.W.2d 209

239 Neb. 300

STATE of Nebraska, Appellee, v. Diane K. HARTMANN, also known as Brandi Hartmann, Appellant.

No. 90-399.

Supreme Court of Nebraska.

Oct. 25, 1991.

Syllabus by the Court

1. Criminal Law: Constitutional Law: Witnesses. A criminal defendant states a violation of the confrontation clause of the U.S. Constitution by showing that she or he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby to expose to the jury the facts from which jurors could appropriately draw inferences relating to reliability of the witness.

2. Criminal Law: Constitutional Law: Witnesses. A defendant in a criminal trial has a right to cross-examine an opposing witness regarding a pending civil action arising out of the same set of facts.

3. Criminal Law: Trial: Convictions: Appeal and Error. Not all errors entitle a criminal defendant to the reversal of an adverse trial result; it is only prejudicial error, that is, an error which cannot be said to have been harmless beyond a reasonable doubt, which requires that a conviction be set aside.

4. Trial: Testimony: Appeal and Error. The factors to be considered in determining whether there exists harmless error beyond a reasonable doubt because of the limitation of cross-examination include the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case.

5. Sentences: Appeal and Error. A sentence imposed within the statutorily prescribed limits will not be disturbed on appeal absent an abuse of discretion.

Kirk E. Naylor, Jr., Lincoln, for appellant.

Don Stenberg, Atty. Gen., and James H. Spears, Lincoln, for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT and FAHRNBRUCH, JJ.

CAPORALE, Justice.

I. INTRODUCTION

Pursuant to verdict, defendant-appellant, Diane K. Hartmann, also known as Brandi Hartmann, was adjudged guilty of manslaughter, in violation of Neb.Rev.Stat. § 28-305 (Reissue 1989), and sentenced to imprisonment for a period of not less than 5 nor more than 15 years. She assigns as error the district court's (1) limitation of her right to cross-examine one of the plaintiff-appellee State's witnesses and (2) imposition of an allegedly excessive sentence. We affirm.

II. FACTS

Hartmann, who was 30 years old at the time of the event, is a married woman and the mother of two children, a son, who was then 6, and a daughter, then 3. She first babysat the decedent child, Danny Hartshorn, in June 1987 for approximately 6 weeks. During this time, the child, who was then approximately 8 months old, was allegedly struck by Hartmann's son. The injury resulted in a bruise which covered two-thirds of the child's back. The child's mother, Linda Hartshorn, spoke with Hartmann regarding the matter, but it was concluded that "kids would be kids" and that the injury was the result of an accident. Hartmann's mother-in-law, who resides about "91 steps" from Hartmann, also saw the bruise on the child.

Because Hartmann was having back problems, the mother had another friend, Jackie Robinson, babysit the child. Robinson was pregnant and thus only able to watch the child until the first week of December 1987. Consequently, Hartmann babysat the child again from early December 1987 until the first part of February 1988. During this period, the child developed water blisters on all 10 fingers, but no cause was ever found. The child was again placed with Robinson, where he remained for 2 months. Problems within her family prevented Robinson from babysitting the child any longer, so he was again placed in Hartmann's care in April 1988.

Sometime during that month, the mother, a registered nurse, noticed that the child was hanging awkwardly by one arm while playing on a swing at home. She, however, found nothing unusual. The next day, the child was taken to Hartmann, where, according to her, he acted funny. When his mother took the child home that evening, she noticed him favoring one arm. This time she found a lump on his shoulder, which led to the discovery that he had a broken clavicle. The injury was treated, but the evidence does not reveal how it occurred.

The child was next injured around June 11, 1988. When his mother went to Hartmann's house to pick him up, the child "had a black eye and his nose was all bruised ... red and swollen and he had a big lip on the opposite side of the eye that was injured." The child's mother testified that Hartmann reported the child had "hit the--They have a patio there ... he had fallen off the patio and hit the step" when the child followed Hartmann's son out the back door. According to the mother, the child "looked terrible, but [she] got him home and [she] watched him and he--he acted fine, except for the bruises."

In approximately the last week of June, the child again was injured while at Hartmann's home. Hartmann claimed that on this occasion her son had "gotten [the child] down in the grass or gotten him down outside, when she took [her daughter] to the bathroom." The child had visible scratches on his face, and after his mother undressed him at home, she discovered "a 50 cent size piece bruise over the right groin--or the right small of his back. Then he had about a three inch area of bruising over the spinal column, like kind of in the middle of the back." These bruises were also seen by the child's father.

The child's mother was told by one friend to look for a new babysitter, while several other people told her that such injuries occasionally occur. The child's mother discussed the matter with her husband, who suggested she stop taking the child to Hartmann, but the mother felt she could not just stop taking him there because the Hartmanns were "our friends, you just can't treat people like that." Hartmann thereafter promised not to leave her son alone with the child.

On July 12 and 13, 1988, the child's mother did not work and remained home with the child. Nothing unusual happened to him on these days. She testified that on the day of the fatal injury, July 14, 1988, the child had not appeared ill and had no visible bruises or marks on his body. She further testified that the child would "whine a little bit" on the way to and when dropped off at Hartmann's home.

At 4:10 p.m. on the last-mentioned day, the child's mother received a telephone call from Hartmann. According to the child's mother, Hartmann "said that [the child] was sick.... [H]e woke up from his nap and vomited and that he was breathing funny." The mother asked, "[W]ell, do you think I should come? And [Hartmann] said, [Y]es, I think you should." It took the mother approximately 10 minutes to drive to Hartmann's house. According to the mother, when she arrived, Hartmann's son came running out, "hysterical and crying.... And he said, [the child is] sick.... [H]e won't talk to me, his eyes are jerking." The child's mother also stated that when she arrived, the child was unconscious, his eyes would not respond, nor would he respond to his mother's voice. She further testified:

I saw my child laying there. Generalized seizures.

....

... He was having tremors of all of his--his arms and his legs. They were like fine tremors, they weren't like major tremors.

....

... He was dusky blue. His eyes were jerking toward the right and his head was jerking toward the right. And as I walked in, I thought he was dead.

The child's mother directed Hartmann to call 911 and, over the next few moments, applied cardiopulmonary resuscitation. According to the mother, when she inquired as to her child's condition and behavior that day, Hartmann said she had no idea what happened: "[Hartmann] said he ... had slept longer than usual," and when she realized he was not waking up at his normal time, she went to check on him and "found him in vomit"; the child had eaten lunch, and Hartmann knew of no injuries that day. However, one of the emergency medical technicians called to the scene reported the mother had told him the child had not had a good day, that he had been listless and tired. The technician assumed that in making that statement, the mother was reporting what Hartmann had told her. The technician also formed the impression that the child had not eaten well at noon, but the mother did not actually say this to him. She reported only that Hartmann had said the child was tired around naptime, that nothing different had happened that day, and that he had not gotten hurt.

Hartmann's son testified that the child seemed no different on the day in question than he had on any other day, that the child sat while the witness had a swimming lesson before lunch, and that the child did not then seem sick or hurt. However, the witness did at one point say that the child had not eaten well at lunch.

Investigator Jack L. Wyant testified that Hartmann told him that on July 14 the child played in the morning and after lunch before taking his nap. He was out of her sight for only short periods of time, and she said nothing about the child being sick or injured, but did report she heard a "hurt-type cry" from the child while she was outside with him and her children putting up a tent. Hartmann later told Wyant that the child had been fussy at lunch, but did eat.

Hartmann also told Wyant that at 2:30 p.m., just prior to laying the child down for his nap, her children walked over to her mother-in-law's house. However, the mother-in-law testified that the children arrived at 12:30 p.m., a statement corroborated by the testimony of Hartmann's son, and that they left her home at about 4:20 p.m. Thus, there was testimony that for approximately a 3 1/2-hour period, Hartmann was...