State v. Schrein
| Decision Date | 03 September 1993 |
| Docket Number | No. S-91-518,S-91-518 |
| Citation | 244 Neb. 136,504 N.W.2d 827 |
| Parties | STATE of Nebraska, Appellee, v. Daniel D. SCHREIN, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Rules of Evidence. Because Neb.Rev.Stat. § 27-106 (Reissue 1989) is concerned with the danger of admitting a statement out of context, additional evidence is admissible only if it qualifies or explains the previous testimony.
2. Trial: Rules of Evidence. Under Neb.Rev.Stat. § 27-106 (Reissue 1989), when defense counsel leaves a false impression, the trial court may allow the use of otherwise inadmissible evidence to clarify or complete an issue opened up by defense counsel.
3. Trial: Rules of Evidence. Under Neb.Rev.Stat. § 27-106 (Reissue 1989), the trial court must determine whether the additional evidence which the proponent seeks to admit is relevant to the issues in the case and the trial court need admit only that part of the evidence which qualifies or explains the evidence offered by the opponent.
4. Trial: Rules of Evidence. In applying Neb.Rev.Stat. § 27-106 (Reissue 1989), once relevance of the additional evidence has been established, the trial court must address the second half of the test for admissibility, and should do so by asking: (1) Does it explain the admitted evidence? (2) Does it place the admitted evidence in context? (3) Will admitting it avoid misleading the trier of fact? (4) Will admitting it ensure a fair and impartial understanding of all the evidence?
5. Appeal and Error. An objection, based on a specific ground and properly overruled, does not preserve a question for appellate review on any other ground.
6. Trial: Rules of Evidence. The trial court is required to weigh the danger of unfair prejudice against the probative value of the evidence only when requested to do so at trial.
J. William Gallup, of Gallup & Schaefer, Omaha, for appellant.
Don Stenberg, Atty. Gen., James H. Spears, Lincoln, and Barry Waid for appellee.
Before HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, FAHRNBRUCH, and LANPHIER, JJ.
Daniel D. Schrein was found guilty in a jury trial of five counts of sexual assault of a child, a Class IV felony. The Nebraska Court of Appeals reversed Schrein's convictions and remanded the cause for a new trial. State v. Schrein, 1 NCA 1581, 1992 WL 231605 (1992). The State petitioned for, and this court has granted, further review pursuant to Neb.Rev.Stat. § 24-1107 (Cum.Supp.1992). We reverse the judgment of the Court of Appeals.
Schrein was a pediatrician practicing for many years in Omaha, where he also organized and coached a youth sports organization known as The Gladiators. In September 1990, Schrein was arrested on five charges of sexual assault of a child. Testimony at Schrein's trial included that of 15 young men who claimed that Schrein had molested them. In addition, expert testimony was presented which contradicted Schrein's claim that his actions were a normal part of treating his young male patients. Defense witnesses included Schrein himself, numerous former patients, members of The Gladiators and their parents, and an Omaha pediatrician who testified regarding the treatment of young males. The jury found Schrein guilty on all five counts.
Schrein appealed his conviction to the Court of Appeals. In that appeal, the principal question was the admission of a Redbook magazine article on pedophilia offered by the State to rehabilitate the testimony of one of the State's witnesses, Sgt. Kenneth Bovasso. During direct examination, Sergeant Bovasso testified that he supervised the robbery and sexual assault unit of the Omaha Police Division and had worked on the Schrein case. On cross-examination, Sergeant Bovasso testified as follows:
Q- ... Didn't you talk to [M.M.]?
A- Yes, I said I did, yes.
Q- Wasn't there some discussion with her about pedophiles?
A- Yes.
Q- Didn't you give her literature on pedophiles?
....
A- I told her that we--
Q- Just answer yes or no. Did you tell her that Dr. Schrein was a pedophile?
A- No.
....
Q- Did you make that implication?
A- I--No.
Q- Why did you give her literature on pedophiles?
A- Because we were investigating a case possibly of that nature.
Q- Okay. And you were convinced and told her that Dr. Schrein was a pedophile; isn't that true?
A- I didn't tell her that Dr. Schrein was a pedophile.
On redirect, the prosecutor gave Sergeant Bovasso exhibit 60, a photostatic copy of the article regarding pedophilia published in the August 1987 issue of Redbook magazine and asked:
Q- ... Officer, did you give that article to [M.M.]?
A- Yes.
Q- Did you give it to anybody else connected to the investigation?
A- Yes.
Q- Do you know who else or how many others?
A- Several others, but I know [another mother] got a copy of it.
Q- Is that a true and accurate copy of the article as you handed it out to [M.M.]?
A- Yes.
[Prosecutor]: I'd offer what's been marked as Exhibit 60.
[Schrein's lawyer]: I'll object. It's irrelevant....
THE COURT: Just a second, please. I believe on cross-examination, if I recall correctly, ... you asked the officer about the materials that he gave.
[Schrein's lawyer]: I asked him if he gave [M.M.] something on pedophilia....
THE COURT: With that in mind, I think the exhibit will be received. The objection, therefore, is overruled.
Exhibit 60 was a copy of a five-page article entitled "The Child Abuser: How Can You Spot Him?" which appeared in Redbook magazine in August 1987 and was coauthored by a professor of psychiatry and his wife. The lead-in paragraph, printed in large, bold letters, proclaimed:
He's a man you trust. He's a man your children trust. He's a teacher, a coach, a Cub Scout leader--someone your family knows well. And he's much more likely to sexually abuse little boys than little girls, according to a landmark study of 403 sex offenders. In this shocking report, the doctor who headed the research team offers a profile of the typical child abuser--and tells you how to protect your children.
Gene G. Abel & Nora Harlow, The Child Abuser: How Can You Spot Him?, Redbook, Aug. 1987, at 98. In this article, the authors state:
Most of us think that a child molester is a rather slimy individual--a stranger in town, sitting in his car near a schoolyard, luring children with candy. Our findings reveal that, on the contrary, the child molester is not a stranger, but is someone we know well. He often is a man we trust, a man our children trust.
Many child molesters try to move themselves into positions or occupations within the community that will allow them to spend time alone with children without attracting much notice. Molesters often become youth ministers, day-care workers, Boy Scout leaders, teachers, Big Brothers and pediatricians.
... And indeed, among physicians--as among youth ministers, day-care workers and teachers--there are exceedingly few men who are child molesters. But there are a few. Of the several hundred molesters I've treated in the last two years, one was a school physician, two were child psychiatrists, another was a pediatrician.
(Emphasis supplied.) Id. at 99. Finally, the article suggests that parents can spot a child molester by watching for typical operating procedures that include spending excessive amounts of time with children and arranging to take trips alone with children; seeking out positions, such as school physician or coach, that will allow them to spend time alone with children; and abusing the privileges of their positions to engage children in inappropriate activities.
Later, after exhibit 60 had been received in evidence, the exhibit was the subject of an in-chambers discussion:
[Schrein's lawyer]: My question is: What was the purpose of the offer? What were they trying to prove with that offer? Unless they can give you some representation of relevance then it shouldn't be admissible. For example, Judge, if they offered a Playboy magazine simply because I asked the question and they offered it, you wouldn't let the Playboy in because you'd have to have something relevant to this case. And I'm saying what does that article got [sic] to do with whether Dr. Schrein's guilty of the charges?
THE COURT: It has nothing to do with whether the doctor's guilty or innocent of these charges, but it has everything to do with what the officer did in his interviews with regard to [M.M.] and what he did in connection with others. And in view of the previous testimony on cross-examination with regard to what he distributed, I think it becomes relevant.
When M.M. testified as a witness for Schrein, she did not recall that Sergeant Bovasso had implied that Schrein was a "pervert." M.M. mentioned nothing about the magazine article as a part of Sergeant Bovasso's interview of M.M.
In his appeal to the Court of Appeals, Schrein contended that the magazine article was both irrelevant and unfairly prejudicial. The State argued that the article was relevant to the question of whether Sergeant Bovasso had made improper suggestions to the parents with whom he had spoken and that these suggestions were passed along to their children, thus encouraging them to testify falsely. In its brief on appeal, the State asserted: Brief for appellee at 35-36.
A second issue on appeal involved the testimony of Schrein's nurse, Myra Langenfeld, regarding her opinion about a picture hanging in one of Schrein's examining rooms which depicted a teenager or young man in a standing position with no shirt but wearing hip-huggers, or low-cut jeans. According to Langenfeld, the boy in the picture Schrein's lawyer did not object to Langenfeld's description of the picture. However,...
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