State v. Pratt
| Decision Date | 19 January 1977 |
| Docket Number | No. 40553,40553 |
| Citation | 249 N.W.2d 495,197 Neb. 382 |
| Parties | STATE of Nebraska, Appellee, v. Juneal Dale PRATT, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Evidence of similar offenses is admissible where an element of the crime charged is motive, criminal intent, or guilty knowledge.
2. The trial court may in its discretion permit the introduction of evidence in rebuttal that is not strictly rebuttal evidence.
3. The requirement that the names of the witnesses for the State must be endorsed upon the information has no application to rebuttal witnesses.
4. In-court identification evidence is admissible where such identification is made on a basis independent of a tainted line-up.
5. A primary factor in determining whether an independent basis for an incourt identification exists is the opportunity afforded the witness to observe the defendant under circumstances free from taint.
Frank B. Morrison, Public Defender, Bennett G. Hornstein, Asst. Public Defender, Omaha, for appellant.
Paul L. Douglas, Atty. Gen., Marilyn B. Hutchinson, Asst. Atty. Gen., Lincoln, for appellee.
Heard before WHITE, C.J., and BOSLAUGH, CLINTON and BRODKEY, JJ., and REAGAN, District Judge.
The defendant was charged with, and found guilty by a jury of, sodomy, forcible rape, and two counts of robbery. The District Court sentenced the defendant to a term of 5 to 10 years imprisonment in the Nebraska Penal and Correctional Complex on the sodomy count, 7 to 20 years on the rape count, and 10 to 30 years on each robbery count; and directed that these sentences be served consecutively to each other and consecutively to a 3 to 5 year term imposed upon the defendant for an unrelated conviction. See State v. Pratt, Neb., 249 N.W.2d 500. The defendant appeals his conviction and sentences. We affirm the judgment and sentences of the District Court.
The defendant brings four assignments of error on appeal. His first contention is that the District Court committed error when it sustained an objection to an inquiry by the defendant's attorney into the recent sexual history of the rape victim.
At the trial, Dr. Robert Penn testified that he examined the rape victim, the prosecutrix, at the Nebraska University Hospital in the early morning hours of August 2, 1975, shortly after the rape occurred. He found tenderness and viscous secretions in the walls of her sexual organs. A microscopic examination of the secretions revealed the presence of nonmotile sperm. Dr. Penn testified that nonmotile sperm can be observed from 2 to 24 hours after sexual intercourse, and that even healthy males ejaculate some nonmotile sperm. Dr. Penn offered his opinion that the prosecutrix had engaged in sexual intercourse within a 12-hour period prior to his examination.
During cross-examination of the rape victim, the prosecutrix, the defendant's attorney asked: 'How long before that incident was it between the last time you had sexual intercourse--.' The prosecution objected on the grounds that such inquiry was irrelevant, and the court sustained the objection. The defense was the given permission to argue, and the jury was excused. The defendant's attorney argued that he was attempting to explain the presence of nonmotile sperm found in the vagina of the rape victim shortly after the rape allegedly occurred. Again, the court sustained the objection.
In support of his contention, the defendant cites Sherrick v. State, 157 Neb. 623, 61 N.W.2d 358 (1953); and Frank v. State, 150 Neb. 745, 35 N.W.2d 816 (1949). We have reviewed these cases and find them inapplicable to the case at hand.
In Sherrick v. State, supra, the court held: '* * * in cases wherein defendant is charged with rape or assault with intent to commit rape of a female child under 15 years of age whose consent is immaterial, prosecutrix cannot ordinarily be cross-examined with regard to previous unchaste acts with others for the purpose of testing her credibility.'
In Frank v. State, supra, the court, citing Redmon v. State, 150 Neb. 62, 33 N.W.2d 349 (1948), held that the trial court committed prejudicial error when it sustained the State's objections to, and overruled the defendant's offer to prove by direct evidence, specific unchaste or immoral acts and conduct by the plaintiff with others. The court held: '* * * it was also prejudicial error to exclude any direct competent evidence not too remote in time, showing specific immoral or unchaste acts and conduct by her with others, not only for the purpose of being considered by the jury in deciding the weight and credibility of her testimony generally, but for the purpose of inferring the probability of consent and discrediting her testimony relating to force or violence used by defendant in accomplishing his purpose and her claimed resistance thereto.'
The defendant was charged with forcible rape. He did not dispute at the trial the fact that the prosecutrix was raped. His sole defense to the prosecution was that he was elsewhere when these crimes were committed, and thus could not have been the perpetrator of these crimes. The rape victim's reputation for truth and veracity was not at issue, nor was her consent, nor was her testimony concerning force and violence used against her at issue. There was no issue concerning her chastity, or lack of chastity, or her motive for testifying.
Under these circumstances, the defense counsel's inquiry into the rape victim's recent past sexual conduct was totally irrelevant. The District Court was correct in sustaining the prosecution's objection to this inquiry.
The defendant next contends that the District Court committed reversible error when it overruled defense objections to the rebuttal testimony of Karla Ailayala. Miss Ailayala testified that on August 10, 1975, about 8 days after the crime committed against the prosecutrix and her sister took place, she was assaulted and robbed in an elevator by a person whom she identified as the defendant, at the Imperial 400 Motel in Omaha, Nebraska, the location of the offenses herein.
The defendant argues that Miss Ailayala's testimony violated this court's decisions forbidding evidence of one offense to show commission of another. In State v. Siers, 197 Neb. 51, 248 N.W.2d 1 (1976), the applicable rule is stated: 'Evidence of other crimes, similar to that charged, is relevant and admissible when it tends to prove a particular criminal intent which is necessary to constitute the crime charged or where there is some legal connection between the two upon which it can be said that one tends to establish the other or some essential fact in issue.'
In State v. Ray, 191 Neb. 702, 217 N.W.2d 176 (1974), we held: 'Evidence of similar offenses is admissible where an element of the crime charged is motive, criminal intent, or guilty knowledge.' See, also, State v. Franklin, 194 Neb. 630, 234 N.W.2d 610 (1975); State v. Young, 190 Neb. 325, 208 N.W.2d 267 (1973); State v. Mayes, 183 Neb. 165, 159 N.W.2d 203 (1968).
The defendant was charged with two counts of robbery. Intent is an element of these crimes. The testimony was proper, going to the question of intent, motive, and knowledge.
The defendant argues that Miss Ailayala's testimony was improper rebuttal testimony. Section 29--2016(4), R.R.S.1943, provides that after the State has produced its evidence and the defendant has produced his evidence, 'the state will then be confined to rebutting evidence, unless the court for good reason in furtherance of justice, shall permit it to offer evidence in chief.' In State v. Keith, 189 Neb. 536, 203 N.W.2d 500 (1973), we held: 'The trial court may in its discretion permit the introduction of evidence in rebuttal that is not strictly rebuttal evidence.' See, also, State v. Howard, 184 Neb. 461, 168 N.W.2d 370 (1969); Hampton v. State, 148 Neb. 574, 28 N.W.2d 322 (1947). The record shows that at the beginning of the trial, the prosecution was not sure whether it could locate Miss Ailayala in time to testify. The prosecutor had just found out which town she was in and was trying to locate her. The State rested its case on October 29, 1975, and the defense rested its case the same day. Miss Ailayala was the second rebuttal witness. She had just arrived in Omaha that day, after being first contacted by the...
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State v. Fahlk, S-92-1180
...is also applied to our review of the trial court's ruling on the admissibility of the rebuttal testimony. See, State v. Pratt, 197 Neb. 382, 249 N.W.2d 495 (1977); State v. Keith, 189 Neb. 536, 203 N.W.2d 500 (1973). On a claim of insufficiency of the evidence, an appellate court will not s......
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...fact is proper rebuttal testimony.' " Lipscomb v. State, 162 Neb. 417, 420, 76 N.W.2d 399, 401-02 (1956). See, also, State v. Pratt, 197 Neb. 382, 249 N.W.2d 495 (1977). The witness was experienced in accident reconstruction. He testified in response to a hypothetical question based on the ......
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State v. Pratt
...must be from the perpetrator of the crime. For the foregoing reasons, I cannot find that the district court clearly erred, and I would affirm. 1.State v. Pratt, 197 Neb. 382, 249 N.W.2d 495 (1977). 2. See Neb.Rev.Stat. §§ 29–4116 to 29–4125 (Reissue 2008). 3. § 29–4120(4). 4.State v. Pratt,......
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State v. Canbaz
...of the witnesses for the state must be endorsed upon the information has no application to rebuttal witnesses." State v. Pratt, 197 Neb. 382, 387, 249 N.W.2d 495, 498 (1977). See, also, Griffith v. State, 157 Neb. 448, 59 N.W.2d 701 (1953). Thus, the State was not required to provide Canbaz......
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Narrative and jurisprudence in state courts: the example of constitutional challenges to sex conduct regulation.
...843 (N.C. Ct. App. 1979) (adult female fellated adult male (to whom she was married) in consensual act in private). State v. Pratt, 249 N.W.2d 495 (Neb. 1977) (20 year old male convicted of sodomy, rape and robbery of female; court noted that between 1970 and 1975 the defendant was arrested......