State v. King, S-03-1160.

• Citation: 693 NW 2d 250,269 Neb. 326
• Decision Date: 18 February 2005
• Docket Number: No. S-03-1160.,S-03-1160.
• Parties: STATE OF NEBRASKA, APPELLEE, v. DONELL KING, APPELLANT.
• Court: Supreme Court of Nebraska

269 Neb. 326

693 NW 2d 250

STATE OF NEBRASKA, APPELLEE, v. DONELL KING, APPELLANT.

No. S-03-1160.

Supreme Court of Nebraska.

Filed February 18, 2005.

James J. Regan for appellant.

Jon Bruning, Attorney General, and Jeffrey J. Lux for appellee.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

McCORMACK, J.

NATURE OF CASE

Following a jury trial, Donell King was found guilty of first degree sexual assault, kidnapping, and robbery. Thereafter, King was found to be a habitual criminal under Neb. Rev. Stat. § 29-2221 (Reissue 1995) and was sentenced to 10 to 25 years' imprisonment for first degree sexual assault, 10 to 25 years' imprisonment for kidnapping, and 10 to 25 years' imprisonment for robbery. The sentences were ordered to run consecutively.

BACKGROUND

The State alleges that on the night of January 30, 2002, H.W. was abducted, sexually assaulted, and robbed by King. As H.W. approached a stop sign after leaving a hospital in Omaha, Nebraska, where she had attended an evening meeting, King entered H.W.'s vehicle through the front passenger door. Pursuant to King's instructions, H.W. continued to drive the vehicle until King ordered her to move to the back seat of the car so he could drive.

The State claimed that during the abduction, King demanded that H.W. give him money. King went through H.W.'s purse and took approximately $140 in cash and her checkbook, credit cards, automated teller machine (ATM) card, and driver's license. He also took her jewelry. King then drove to an ATM and used H.W.'s ATM card to withdraw money from her account. After leaving the ATM, King drove to an unknown location where he demanded that H.W. take off her clothing and then forced her to engage in oral sex and sexual intercourse.

The State further contends that after sexually assaulting H.W., King drove the vehicle to another location, where he parked the car. King took the vehicle's keys, put them in a glove, and told H.W. to watch where he dropped the glove. He advised H.W. that when she could no longer see him, she could retrieve the keys. The evidence reveals that after retrieving her keys, H.W. returned to the hospital, where she was examined and the police were called. King was subsequently arrested and charged with first degree sexual assault, kidnapping, and robbery.

As part of his defense at trial, King admitted to taking H.W.'s money and property but denied sexually assaulting her. King claimed that on the day in question, H.W. approached him, wanting to purchase crack cocaine, and that with her permission, he got into her vehicle to complete the transaction. King claimed that after H.W. purchased the cocaine, he and H.W. smoked the drug together. King claims that afterward, H.W. wanted to purchase additional cocaine, and that with her permission, he drove her vehicle to a house, where more drugs were acquired. He then drove to an ATM, where he claims that H.W. authorized King to withdraw money for the second purchase. King claimed that he and H.W. then smoked the newly purchased cocaine and thereafter had consensual sexual intercourse in her vehicle. King admitted that after engaging in sexual intercourse with H.W., he stole the items from her purse. However, at trial, King claimed that he did not rob her because he did not take her money or jewelry by force or threats of force.

At trial, counsel for King made a general foundational objection to the testimony of Dr. Raymond Schulte and Omaha police officers Jerry Martinez and John Gasko. The State intended to have these witnesses testify regarding H.W.'s alleged use of crack cocaine on the night of her assault. Over these objections, Schulte, who was H.W.'s gynecologist and who had conducted an examination of H.W. following her sexual assault, testified that H.W. showed no signs of contact with or usage of a controlled substance when examined. Similarly, Martinez and Gasko were allowed to testify that in their opinions, H.W. was not under the influence of crack cocaine that evening. Later that day, after the witnesses had testified, King's attorney met with the prosecutors and the trial judge in chambers to discuss evidence issues which had arisen at trial. During that meeting, King's attorney renewed his general foundational objections. King's attorney also objected to the testimony of the officers on the ground that they had not been previously identified as officers pursuant to Neb. Rev. Stat. § 29-1912 (Reissue 1995). King's attorney commented that he believed he had also objected on the basis of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), which he thought was basically the same as a foundational objection. Following his conviction, King timely appealed, and we moved this case to our docket pursuant to our authority to regulate the caseloads of this court and the Nebraska Court of Appeals. See Neb. Rev. Stat. § 24-1106(3) (Reissue 1995).

On appeal, King argues that Schulte, Martinez, and Gasko were improperly allowed to testify. King maintains that these individuals testified as experts and that the trial court failed to conduct a proceeding to determine whether they were qualified to testify under Daubert v. Merrell Dow Pharmaceuticals, Inc., supra. Further, King argues that the State failed to provide notice, as required under § 29-1912, that it intended to offer the expert testimony of Martinez and Gasko. It is King's position that the State had a duty to disclose results and reports which documented examinations conducted by the witnesses. King also argues that his trial counsel was ineffective as a result of counsel's failure to anticipate the expert testimony of Schulte, Martinez, and Gasko and counsel's failure to make proper objections to their testimony. Finally, King argues that there was insufficient evidence to find that he was a habitual criminal, as the evidence failed to establish that King was represented by counsel at all critical stages of his prior criminal proceedings, including sentencing.

ASSIGNMENTS OF ERROR

King assigns, restated, that (1) the trial court erred in admitting the testimony of the officers who were not properly qualified as experts, (2) the trial court erred in finding the State had no obligation to notify King of its intent to use expert testimony on the subject of whether H.W. was under the influence of crack cocaine, (3) King had ineffective assistance of counsel stemming from counsel's failure to object to the admission of opinion testimony regarding whether H.W. was under the influence of crack cocaine, and (4) the trial court erred in finding he was a habitual criminal.

STANDARD OF REVIEW

[1-3] In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules make discretion a factor in determining admissibility. State v. Miner, 265 Neb. 778, 659 N.W.2d 331 (2003). The standard for reviewing the admissibility of expert testimony is abuse of discretion. State v. Thomas, 262 Neb. 985, 637 N.W.2d 632 (2002). 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. Hartman v. Hartman, 265 Neb. 515, 657 N.W.2d 646 (2003); Ford v. Estate of Clinton, 265 Neb. 285, 656 N.W.2d 606 (2003).

[4] Under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), in order to show ineffective assistance of counsel such that a conviction must be overturned, the defendant must show that his or her counsel's performance was deficient and that this deficient performance actually prejudiced his or her defense. State v. Dunster, 262 Neb. 329, 631 N.W.2d 879 (2001).

ANALYSIS

King assigns four errors on appeal. Each will be addressed in the order assigned.

Daubert Objection

In his first assignment of error, King argues that the trial court erred in admitting the testimony of Schulte, Martinez, and Gasko with respect to their opinions that H.W. was not under the influence of crack cocaine on the night of her assault. King maintains that the trial court failed to conduct a proceeding to determine whether these witnesses were qualified to testify as experts and that therefore, the witnesses should not have been permitted to testify regarding H.W.'s alleged drug use. During the testimony of Schulte, Martinez, and Gasko, King's trial attorney objected generally on the basis of foundation.

[5,6] An expert's opinion is ordinarily admissible under Neb. Evid. R. 702, Neb. Rev. Stat. § 27-702 (Reissue 1995), if the witness (1) qualifies as an expert, (2) has an opinion that will assist the trier of fact, (3) states his or her opinion, and (4) is prepared to disclose the basis of that opinion on cross-examination. Robb v. Robb, 268 Neb. 694, 687 N.W.2d 195 (2004); Heistand v. Heistand, 267 Neb. 300, 673 N.W.2d 541 (2004). When the opinion involves scientific or specialized knowledge, this court held in Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001), that we will apply the principles of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993) (Daubert/Schafersman). Under our recent Daubert/Schafersman jurisprudence, the trial court acts as a gatekeeper to ensure the evidentiary relevance and reliability of an expert's opinion. This gatekeeping function entails a preliminary assessment whether the reasoning or methodology underlying the testimony is valid and whether that reasoning or methodology properly can be applied to the facts in issue. Zimmerman v. Powell, 268 Neb. 422, 684 N.W.2d 1 (2004); Carlson v. Okerstrom, 267 Neb. 397, 675 N.W.2d 89 (2004).

[7] We recently stated in State v. Tolliver, 268 Neb. 920, 927-28, 689 N.W.2d 567, 575 (2004):

A trial court's evaluation of the admissibility of

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