State v. Muhannad

• Decision Date: 20 September 2013
• Docket Number: No. S–13–042.,S–13–042.
• Citation: 837 N.W.2d 792,286 Neb. 567
• Parties: State of Nebraska, appellee, v. Wa'il Muhannad, appellant.
• Court: Nebraska Supreme Court

286 Neb. 567

837 N.W.2d 792

State of Nebraska, appellee,

v.Wa'il Muhannad, appellant.

No. S–13–042.

Supreme Court of Nebraska.

Filed September 20, 2013.

Appeal from the District Court for Douglas County: Gary B. Randall, Judge. Affirmed.

Alan G. Stoler, P.C., L.L.O., for appellant.

Jon Bruning, Attorney General, and Stacy M. Foust for appellee.

Heavican, C.J., Wright, Conolly, Stephan, McCormack, Miller–Lerman, and Cassel, JJ.

Syllabus by the Court

[286 Neb. 567]1. Motions for Mistrial: Pleadings: Prosecuting Attorneys: Intent: Appeal and Error. While the denial of a plea in bar generally involves a question of law, an appellate court reviews under a clearly erroneous standard a finding concerningthe presence or absence of prosecutorial intent to provoke the defendant into moving for a mistrial.

2. Double Jeopardy. Traditionally, the Double Jeopardy Clause has been viewed as safeguarding three interests of defendants: (1) the interest in being free from successive prosecutions, (2) the interest in the finality of judgments, and (3) the interest in having the trial completed in front of the first tribunal.

3. Constitutional Law: Double Jeopardy. The constitutional protection against double jeopardy does not mean that every time a defendant is put to trial before a competent tribunal, the defendant is entitled to go free if the trial fails to end in a final judgment.

4. Constitutional Law: Double Jeopardy. Balanced against a defendant's interests in having a trial completed in front of the first tribunal is society's right to one full and fair opportunity to prove the defendant's guilt.

5. Constitutional Law: Double Jeopardy. When society is deprived of its right to attempt to prove a defendant's guilt in a single prosecution because of a trial error, the interests of society in vindicating its laws generally outweigh the double jeopardy interests of the defendant.

6. Double Jeopardy: Motions for Mistrial. It is the general rule that where a court grants a mistrial upon a defendant's motion, the Double Jeopardy Clause does not bar a retrial.

[286 Neb. 568]7. Double Jeopardy: Motions for Mistrial. Only where the governmental conduct in question is intended to goad a defendant into moving for a mistrial may the defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on the defendant's own motion.

McCormack, J.

NATURE OF CASE

Appellant, Wa'il Muhannad, was charged with first degree sexual assault of his stepdaughter, M.H. During trial, M.H.'s therapist testified that the event causing M.H.'s posttraumatic stress disorder (PTSD) was Muhannad's sexually abusing her. The trial court allowed this testimony over Muhannad's objection, but later concluded that the testimony was reason to grant Muhannad's motion for a mistrial. Muhannad then filed a plea in bar, which the court denied. The issue is whether the State's questioning of the therapist was intended to goad Muhannad into moving for a mistrial, such that the State could get a second chance at a more favorable prosecution and thereby circumvent the protections of the Double Jeopardy Clauses of the U.S. and Nebraska Constitutions. We affirm the denial of the plea in bar.

BACKGROUND

M.H.'s mother married Muhannad in 2006, when M.H. was 10 years old. M.H. lived continuously with her mother and Muhannad except for brief periods when she stayed with her biological father. In 2011, M.H. disclosed that Muhannad had been sexually abusing her. The State charged Muhannad with first degree sexual assault of a child.

Motion in Limine

Before trial, Muhannad moved in limine to exclude the testimony of Carrie Gobel, M.H.'s psychotherapist. Muhannad argued that the prosecution intended to have Gobel testify as to whether M.H. was telling the truth. Muhannad argued that such testimony would invade the province of the jury and, furthermore, that Gobel was not qualified to opine on the subject.

The State explained it wished to call Gobel to testify about “the symptoms of children who have been sexually abused.” It further intended for Gobel to testify that M.H. had PTSD. Finally, the State expected Gobel to testify that M.H. exhibited “certain symptoms of the sexual abuse.” The trial court denied the motion in limine, and the case proceeded to trial.

Trial

M.H. was 16 years old at the time of trial. M.H. stated that sometime around 2008 or 2009, Muhannad began sexually abusing her. It began with Muhannad's touching her when they were watching a movie at home. M.H. recalled that the movie was “ ‘Reign Over Me.’ ”

M.H. testified that soon thereafter, Muhannad began to have intercourse with her three to four times a week. M.H. described that Muhannad would either come into her bedroom at night or have intercourse with her during times in the day when her mother was not home.

M.H. testified that Muhannad always ejaculated into a napkin. He asked her twice to take pregnancy tests, and M.H. described those tests in detail. M.H. described incidents where Muhannad made her watch pornography with him. M.H. said that sometimes Muhannad told her to use a vibrator while he watched. She also testified that Muhannad made her give him manual stimulation and oral sex. M.H. testified that Muhannad said he would kill her if she told anyone about the assaults.

In May 2011, M.H.'s mother picked M.H. up from school and told M.H. that Muhannad had given her the “final talaq.” M.H.'s mother explained that the final talaq was the final act, under Islam, of divorcing one's wife. After hearing this news, M.H. revealed the assaults to her mother. M.H.'s mother testified that M.H. was “shaking, scared, crying” when she reported the abuse. M.H. explained that she chose to finally disclose the abuse to her mother when she learned of the final talaq, “[b]ecause I had come to, like, an understanding of my mom wouldn't hurt me or she wouldn't, like, tell me that I was lying.” M.H.'s mother called the police.

An Omaha police officer responded to the call. The officer interviewed the mother and M.H. and described M.H. as “very shy and talked under her breath and looked down at the ground.” The officer took M.H. and her mother to a hospital.

At the hospital, a nurse conducted a forensic sexual assault examination of M.H. M.H. testified that the last sexual contact between herself and Muhannad was before school on the same day she told her mother about the abuse. There was some dispute about whether M.H. had previously reported that the last assault had been the day before.

M.H. testified that on the morning of the last alleged assault, she was taking a shower when Muhannad entered the bathroom and asked her to exit the shower. Muhannad then directed M.H. to lean up against the sink while he had intercourse with her from behind. Muhannad ejaculated into a napkin. After Muhannad left the bathroom, M.H. again showered, dressed, and went to school.

The nurse was unable to find any foreign pubic hairs during the forensic examination, and a DNA analyst confirmed that no semen or other foreign DNA was found on M.H. The nurse testified she did not expect to find semen or pubic hair, however, because of the position in which the last reported assault took place and because Muhannad had ejaculated into a napkin. Furthermore, M.H. had showered and had gone to the bathroom after the assault.

Defense counsel pointed out the lack of physical evidence supporting the allegations of abuse. Defense counsel also pointed out details of M.H.'s story that M.H. was describing for the first time at trial. Principally, these details included the instances where Muhannad asked her to use a vibrator and when he made her take pregnancy tests.

Defense counsel also noted M.H.'s delayed reporting of the abuse. Defense counsel particularly focused on when M.H. had written an affidavit listing the reasons she wanted to live with her biological father. At that time, M.H. did not disclose sexual abuse as one of those reasons.

Defense counsel suggested that M.H.'s mother conspired to get Muhannad arrested so she could marry another man who allegedly wanted to take over a business that she and Muhannad owned. That man was their business partner. Defense counsel asked M.H.'s mother if, before the sexual abuse accusations, she had “aspirations ... of somehow creating a way that [she] could get [Muhannad] out of the picture.”

Defense counsel pointed out that M.H.'s mother “married” that man—who was also her friend's husband—shortly after receiving the final talaq from Muhannad. And defense counsel implied that M.H.'s mother pressured M.H. to make allegations of sexual abuse in order to carry out this scheme to get Muhannad “out of the picture.” Admittedly, M.H.'s mother had told M.H. that “it would be a shame” if Muhannad got out of jail and M.H. ended up there instead. M.H. similarly testified that her mother told her she would get in trouble if she changed her story.

But M.H.'s mother denied having any plan to get Muhannad “out of the picture” so another man could take over the business with her. In fact, she testified that the business shut down after Muhannad's arrest.

M.H. clarified that no one had ever told her to lie about the sexual abuse. M.H.'s mother explained that she had made the comment about who would be going to jail when M.H. was fearful of testifying. M.H.'s mother said she was confused about the penal consequences for refusing to testify.

Defense counsel also suggested that M.H. had fabricated the sexual assaults in order to keep Muhannad from divorcing her mother. It was undisputed that, at least at times, M.H. was opposed to Muhannad's divorcing her mother. In fact, M.H. testified that when Muhannad sent M.H.'s mother the second talaq, M.H. had threatened Muhannad that she would report the sexual assaults if he divorced her mother.

Gobel's Testimony

In this context, the State called Gobel as its last witness. Gobel is a licensed mental health practitioner with training in...