State v. Johnson, 84-677
| Decision Date | 05 July 1985 |
| Docket Number | No. 84-677,84-677 |
| Citation | 370 N.W.2d 136,220 Neb. 392 |
| Parties | STATE of Nebraska, Appellee, v. James H. JOHNSON, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Trial: Witnesses: Rules of Evidence: Hearsay. What was previously characterized as hearsay available for the purpose of impeachment only has now become substantive evidence of fact contained in the statement, provided the requirements prescribed by Rule 801(4)(a) of the Nebraska Evidence Rules (Neb.Rev.Stat. § 27-801(4)(a) (Reissue 1979)) are satisfied.
2. Rules of Evidence: Actions: Words and Phrases. A "proceeding" contemplated by Rule 801(4)(a)(i) of the Nebraska Evidence Rules (Neb.Rev.Stat. § 27-801(4)(a)(i) (Reissue 1979)) is a formal action before a judicial tribunal, as well as an action before a quasi-judicial officer or board, invoked to enforce or protect a right.
3. Impeachment: Prior Inconsistent Statements: Witnesses: Perjury. If an attack on a witness' credibility through use of an inconsistent statement is accompanied by, or interpretable as, a charge of a plan or contrivance to give false testimony, proof of a prior consistent statement before the plan or contrivance was formed tends strongly to disprove that the testimony was the result of contrivance.
4. Impeachment: Prior Inconsistent Statements: Evidence: Witnesses. If the witness being impeached admits to the prior inconsistent statement, then he has been impeached and further extrinsic evidence is neither necessary nor generally allowed.
Dennis R. Keefe, Lancaster County Public Defender, and Sean J. Brennan, Lincoln, for appellant.
Paul L. Douglas, Atty. Gen., and L. Jay Bartel, Lincoln, for appellee.
James H. Johnson appeals his conviction, resulting from a jury trial, for first degree sexual assault on a person less than 16 years of age. See Neb.Rev.Stat. § 28-319(1)(c) (Reissue 1979). We affirm.
The victim, an 11-year-old boy at the time of the sexual assault, lived with his mother and Johnson in a house in Lincoln, Nebraska. The victim's mother and Johnson had planned to marry. Sometime between the dates of August 29 and October 20, 1983, Johnson penetrated the victim's body during anal intercourse. However, the victim did not immediately report this sexual assault because he was afraid Johnson would hurt him.
Some weeks after the assault, at the victim's home on the evening of October 20, 1983, the victim's mother discovered Johnson lying on the living room couch with his penis exposed, while the victim was present. Later that evening, the mother asked the victim if Johnson "was doing anything." The victim then informed his mother of Johnson's earlier sexual assault. After this conversation the mother and son attempted to leave the house, but Johnson "got angry ... grabbed [the mother] by the shoulders and pushed her into the bedroom and pushed her down on the bed." While that was occurring, the son called the police. When the police arrived, the mother told a policeman, Officer Domangue, that Johnson had "raped" her son. The police arrested Johnson. Detective Sorensen was assigned to the case and later on the night of October 20 interviewed the mother and her son. During this interview, the mother stated she had seen Johnson exposing his genitals to the victim earlier that evening.
On November 28, 1983, the mother received a letter from Johnson, who was in jail awaiting trial. In that letter Johnson denied any sexual assault on the victim and stated that if the sexual assault charge went to trial, the "truth" would come out and the boy would be "taken away" from his mother. In response to Johnson's letter, and fearing loss of her son, the mother instructed the victim to lie about the sexual assault by Johnson. The following week the mother visited Johnson in jail. Johnson directed the mother to telephone and inform his attorney that the victim son had lied about Johnson's sexual assault on the victim. A few days later, pursuant to Johnson's direction, the mother telephoned and informed Johnson's attorney that the victim had just said that he fabricated the entire account of the sexual assault by Johnson. The mother was not aware that this telephone conversation was tape recorded by Johnson's attorney.
After the tape-recorded telephone conversation, the mother and son went to the office of Johnson's attorney to answer questions about the assault. In addition to the mother, victim, and Johnson's attorney, a court reporter was present in the attorney's office, administered an oath to the mother and her son, and recorded questions and answers during the interview in the attorney's office. During the interview, the victim stated that Johnson had not sexually assaulted him and that the entire account was a lie to prevent his mother's marrying Johnson. Also, during the interview, the victim's mother stated that she had lied about seeing Johnson with his genitals exposed in the presence of her son on October 20, 1983.
At trial the victim testified that Johnson sexually assaulted him. Johnson's attorney questioned the victim and his mother about their statements made before trial, namely, the sworn statements at the attorney's office and the mother's tape-recorded telephone conference with Johnson's attorney.
Concerning the victim's sworn statement at the attorney's office, on cross-examination the victim admitted that he had given the sworn statement, namely, the victim had lied about the assault on him by Johnson. On redirect examination the victim explained that his statement about the fabricated assault was made in response to his mother's instruction to lie about the assault.
Defense counsel extensively cross-examined the victim's mother about her statement given at the office of Johnson's attorney. In his questions asked on cross-examination of the mother, counsel on more than one occasion emphasized existence of an oath regarding the statement given at the attorney's office; for example, "[d]uring this sworn statement ...," "under oath," and the "same oath ... that you took today when you took the witness stand...." During cross-examination, the mother admitted giving her sworn statement at the attorney's office, namely, she had not seen Johnson with his genitals exposed in the presence of her son. When asked on cross-examination about her telephone conversation with Johnson's attorney, the mother acknowledged that in such telephone conversation she had told Johnson's attorney that the victim said he had lied about occurrence of the assault.
When Johnson sought to introduce a transcript of the sworn statement (interview) given by the victim, the court ruled that the victim's sworn statement was hearsay and sustained the State's objection. Upon objection by the State to the introduction of the tape-recorded telephone conversation between Johnson's attorney and the victim's mother, the court, explaining that the mother had not denied the telephone conversation or its contents, sustained the State's objection.
On redirect examination the mother explained that, motivated by fear of losing her son, she had made untrue statements during the interview under oath in defense counsel's office.
After the victim and his mother had testified, the State called Detective Sorensen, who, over Johnson's objection, testified that the mother, on the evening of October 20, told Sorensen she had seen Johnson in her home earlier that evening with his genitals exposed in the presence of her son.
After the State's rest, Johnson recalled the victim and asked whether on the night of October 20, 1983, the victim had told Officer Domangue that "Johnson did not sexually assault" the victim. The victim denied such statement to the officer. Johnson then called Officer Domangue, but on objection by the State, the court would not allow Officer Domangue to answer questions concerning the victim's October 20 conversation with the officer. Johnson's offer of proof indicated that if Officer Domangue had been allowed to testify, the officer "would have testified that [the victim], in response to the question by the officer [whether Johnson sexually assaulted the victim] said no, he tried to ... but I wouldn't let him, I ran away."
In his assignments of error Johnson complains about the trial court's rulings on admission and exclusion of evidence and focuses primarily on the character of prior statements, inconsistent and consistent, as substantive evidence pursuant to Rule 801(4)(a) of the Nebraska Evidence Rules, Neb.Rev.Stat. § 27-801(4)(a) (Reissue 1979).
First, Johnson claims the statement of the victim during the interview at the office of Johnson's attorney was admissible as substantive evidence under Rule 801(4)(a)(i), which in part provides:
(4) A statement is not hearsay if:
(a) The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (i) inconsistent with his testimony and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition....
Second, Johnson contends the mother's statement on the night of Johnson's arrest--that she saw Johnson exposing himself to her son earlier that evening--is inadmissible as a prior consistent statement under Rule 801(4)(a)(ii):
(4) A statement is not hearsay if:
(a) The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is ... (ii) consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive....
Third, Johnson argues the inconsistent statements at the attorney's office were admissible to impeach the credibility of the witnesses under Rule 613 (Neb.Rev.Stat. § 27-613 (Reissue 1979)).
Fourth, Johnson asserts that the mother's...
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