State v. Owen
| Decision Date | 03 August 1993 |
| Docket Number | No. A-91-836,A-91-836 |
| Citation | 1 Neb.App. 1060,510 N.W.2d 503 |
| Parties | STATE of Nebraska, Appellee, v. Alisha J. OWEN, Appellant. |
| Court | Nebraska Court of Appeals |
John W. DeCamp, of DeCamp Legal Services, P.C., Lincoln, for appellant.
Don Stenberg, Attorney General, and Delores Coe-Barbee, Lincoln, for appellee.
This appeal arises from the conviction of the appellant, Alisha J. Owen, on eight counts of perjury under Neb.Rev.Stat. § 28-915 (Reissue 1989). Owen assigns 24 errors. We affirm on all errors properly raised on appeal except those dealing with alleged misconduct by the jury during deliberation and alleged improper communication between the judge and jury during deliberation. We vacate the trial court's order overruling Owen's motion for new trial and remand this cause with directions to the district court to conduct an evidentiary hearing on the allegations concerning jury misconduct and improper communication between the judge and jury.
The trial of Owen lasted 5 weeks. The record contains over 4,000 pages of trial testimony and 182 exhibits, including approximately 11 hours of videotaped testimony. Included in the exhibits are more than 1,000 pages of testimony from a previous grand jury proceeding related to Owen's perjury trial. Having reviewed the foregoing, we present a summary of the facts relevant to the issues raised on appeal.
This case developed out of the original investigation of the financial collapse of the Franklin Community Credit Union (Franklin) in Omaha, Douglas County, Nebraska. A federal grand jury and the National Credit Union Association investigated in detail the financial misdeeds that caused the credit union to fail. During the investigation of Franklin's financial collapse, allegations surfaced in which adults with connections to the credit union were accused of child sexual abuse. The gist of the allegations was that Larry King, Jr., former head of the credit union, had thrown a series of parties at which minors were sexually abused.
A Douglas County grand jury was impaneled March 19, 1990, to examine alleged illegal activities of the credit union's members, officers, employees, and benefactors. The county grand jury focused its attention on the sexual abuse allegations. Financial abuses concerning the credit union were considered only to the extent that they offered possible leads to dealings involving drugs, pornography, and illicit sexual activity.
The most controversial evidence examined by the grand jury consisted of videotaped statements and live grand jury testimony by the appellant, Owen, and three other youths, Paul Bonacci, Troy Boner, and James "Danny" King, who claimed they had been sexually molested by adults involved in an ongoing scheme of child sexual exploitation. The videotapes had been made in connection with a separate Franklin investigation undertaken by the Nebraska Legislature.
In testimony before the grand jury, Boner and Danny King recanted their videotaped statements. They told the grand jury that the entire chain of allegations was false. The grand jury found that Boner and Danny King had followed Owen's lead in making the videotapes and participating in the scam because they had believed, as had Owen, that the ruse would eventually lead to lucrative book, television, and movie contracts. Furthermore, at the time the videotapes were made, Owen was serving a prison sentence for having passed bad checks. The grand jury determined that Owen had hoped that by stirring up a controversy and then cooperating with authorities in the investigation of the alleged child sexual abuse ring, she could obtain a reduced prison sentence or improved living conditions.
Even absent the recantations of Boner and Danny King, the grand jury found that the allegations of all four youths were lacking in credibility. The grand jury found that the "story of sexual abuse, drugs, prostitution, and judicial bribery presented in the legislative videotapes [was] a carefully crafted hoax, scripted by a person or persons with considerable knowledge of the people and institutions of Omaha." Owen and Bonacci, the two youths who stood by their videotaped statements alleging sexual exploitation, were indicted for perjury.
The State argued that Owen's story of Franklin-related child sexual abuse began to take shape when she met Michael Casey in the fall of 1988.
Owen was arrested in September 1988 for having issued bad checks. She was detained for several days and then released pending disposition of her case. On October 20, Owen checked herself into the St. Joseph Center for Mental Health for psychiatric evaluation and remained there until November 30. Within days of her release, Owen attempted suicide. She was hospitalized again at St. Joseph's from December 5 to 16.
While at St. Joseph's, Owen became acquainted with Casey, whom the grand jury described as a "con man" passing himself off as an investigative reporter who "endeavored to uncover the 'real' Franklin story." Shortly after Owen was released from St. Joseph's in December, Casey contacted her about moving in with him and his male roommate. Casey said that he was an investigative reporter for the New York Times and that he would train Owen to be his assistant. In a February 1990 interview, Owen told FBI special agent Michael Mott that during the 2 to 3 weeks she stayed with Casey, he pumped her for Franklin-related information. She told Mott that she had stonewalled Casey, telling him that she was not involved in the scandal herself. However, in a letter to Owen dated March 15, 1990, and found among Owen's personal papers, Casey wrote that he was working with producers in Los Angeles and Omaha to develop his "Franklin project" and that he would send Owen a copy of the first draft of a script for a play so that Owen could review it and offer her ideas. In a greeting card to Owen dated March 23, 1990, and found among Owen's personal papers, Casey wrote that three national publications and a movie producer were interested in his Franklin project and that Owen was "assured of a job when [you] get out of their [sic] as a consultant and researcher."
At trial, Bill Gehrig, a friend of Owen who had visited her during her stay at St. Joseph's, testified that Owen had told him in January 1990 that she had been working with Casey on an investigative report on the Franklin collapse and that she was involved in the stories of abuse that were beginning to surface in the public media at that time. Owen testified that Gehrig was mistaken; she denied ever representing herself as an investigative assistant to Casey on a Franklin probe.
On October 30, 1989, while Owen was serving her prison sentence for a bad check conviction at the Nebraska Center for Women in York, she was contacted by Gary Caradori, a private investigator. Caradori was conducting an investigation for a special committee of the Nebraska Legislature created specifically to investigate Franklin-related allegations of child sexual abuse. Owen said Caradori had told her that he had found her by picking up the name Alisha "off of the streets" and then running the name through a police computer. However, the March 15, 1990, letter to Owen from Casey included the following excerpt:
I also know and feel that promises were made--before I ever gave Gary you[r] name and location--he'd assured me that if your info checked out you would receive favorable consideration and protection outside of a prison environment. I feel most responsible if promises were made to you and not kept!
(Emphasis supplied.)
Owen testified that Caradori had shocked her when he informed her at their initial meeting at the Nebraska Center for Women in York on October 30, 1989, that her name had come up more than once in the course of his investigation, particularly among people who knew Larry King. Initially, Owen refused to cooperate with Caradori. She subsequently changed her mind and mentioned that she knew Larry King and other people linked to the child sexual abuse accusations. Owen balked when Caradori said he wanted her to make a formal statement. That concluded the October 30 meeting.
Eventually, Owen decided to tell Caradori her whole story. Caradori returned to the Center for Women around November 7 and began the interviewing process that would yield three videotaped statements by Owen detailing the sexual abuse she allegedly had suffered at the hands of adults connected with Larry King.
On December 15, 1989, in response to a directive from the Attorney General's office, the Nebraska State Patrol interviewed Owen about her Franklin-related allegations. In February and April 1990, the FBI conducted a series of interviews with Owen on the Franklin scandal. Owen was not forced to participate in any of these interviews. Investigators for both law enforcement agencies testified that it was made clear to Owen that she was being interviewed as a victim and a witness, not interrogated as a suspect. The accounts of sexual exploitation that Owen described to the State Patrol and the FBI were generally consistent with the allegations she had made for Caradori on videotape.
In live testimony before the Douglas County grand jury, Owen reasserted the allegations that she had made on videotape for Caradori and in her interviews with the State Patrol and the FBI. The grand jury determined that Owen was lying. At the conclusion of its proceedings on July 23, 1990, the grand jury handed down an indictment charging Owen with eight counts of perjury pursuant to § 28-915, which provides that a "person is guilty of perjury ... if in any official proceeding he or she makes a false statement under oath ... or affirms the truth of a statement previously made, when the statement is material and he or she does not believe it...
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