State v. Shipps

• Decision Date: 21 February 2003
• Docket Number: No. S-02-475.,S-02-475.
• Citation: 265 Neb. 342,656 N.W.2d 622
• Parties: STATE of Nebraska, Appellee, v. Kelly R. SHIPPS, Appellant.
• Court: Nebraska Supreme Court

656 N.W.2d 622

265 Neb. 342

STATE of Nebraska, Appellee, v. Kelly R. SHIPPS, Appellant.

No. S-02-475.

Supreme Court of Nebraska.

February 21, 2003.

J. Bruce Teichman, Omaha, for appellant.

Don Stenberg, Attorney General, and Kevin J. Slimp for appellee.

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

WRIGHT, J.

NATURE OF CASE

Kelly R. Shipps appeals from his conviction for kidnapping.

SCOPE OF REVIEW

The decision whether to grant a motion for mistrial is within the discretion of the trial court and will not be disturbed on appeal in the absence of an abuse of discretion. State v. Haltom, 264 Neb. 976, 653 N.W.2d 232 (2002).

In a criminal case, a motion for new trial is addressed to the discretion of the trial court, and unless an abuse of discretion is shown, the trial court's determination will not be disturbed. State v. Aguilar, 264 Neb. 899, 652 N.W.2d 894 (2002).

FACTS

Shipps pled not guilty to four counts filed in the Hall County District Court: kidnapping, a Class IA felony, in violation of Neb.Rev.Stat. § 28-313(1) (Reissue 1995); first degree sexual assault, a Class II felony, in violation of Neb.Rev.Stat. § 28-319(1)(a) (Reissue 1995); robbery, a Class II felony, in violation of Neb.Rev. Stat. § 28-324(1) (Reissue 1995); and burglary, a Class III felony, in violation of Neb.Rev.Stat. § 28-507(1) (Reissue 1995). The charges were based on events which occurred in June 2001 involving D.H., a woman Shipps had met in 1999 and with whom he had been involved for about 2 years.

On June 19, 2001, Shipps went to D.H.'s home in the afternoon, and D.H. told Shipps that they should not see each other any more. That night, D.H. went to bed between 11 o'clock and midnight. At about 2 a.m., she was awakened by Shipps, who was holding her wrists in the air very firmly. He said, "`We're going to have sex whether you want to or not.'" D.H. testified that she asked Shipps not to hurt her and then got up and undressed because she knew from the tone of his voice that Shipps was serious and she did not want to "get beat up."

D.H. said she did not think she could get away from Shipps or resist having sex with him. During the night, they had sex twice. Shipps went to the bathroom once during the night, but D.H. did not try to leave because she thought she would be safe if she allowed Shipps to stay until he went to work in the morning.

At about 5 a.m. on June 20, 2001, D.H. arose, dressed, and made coffee because Shipps said he was going to work soon. Shipps appeared in the kitchen undressed and said he wanted D.H. to have sex with him again. D.H. said that Shipps talked her into doing so and that they returned to the bedroom, where they had sex again. D.H. then got up and began to dress because she thought she would need to drive Shipps to work.

Before D.H. could put on a blouse, Shipps playfully pushed her down onto the bed. Shipps then got on D.H.'s stomach and chest, slipped twine around one of her wrists, and yanked the twine until it was tight. Shipps yelled at D.H. and accused her of using him. He then looped the twine twice around her neck. D.H. repeated, "`You don't want to do this.'" Shipps said he wanted D.H.'s other hand, and as she started to give it to him, D.H. began screaming. Shipps told her that if she did not let him tie her up, he would beat her. D.H. said that she gave him her wrists and that he tightened the twine around her neck. D.H. began praying, and Shipps said, "`You better pray.'" He then tied the twine to the bedposts.

Shipps left the room and returned with duct tape, which he put over D.H.'s mouth and around her ankles. Shipps left again, but he returned, untied the twine, and helped D.H. get up as she motioned toward the bathroom. He removed the duct tape from her mouth. Shipps picked up D.H., threw her over his right shoulder, and carried her down the basement stairs into the washroom, where he put her down by a table. Shipps indicated that D.H. should walk the rest of the way to the bathroom, but she said she could not walk. Shipps picked her up, carried her into the bathroom, helped her pull down her pants, and sat her on the stool.

Shipps went back upstairs and returned with a light bulb because there was no other light downstairs. He told D.H. he would be back after work. Shipps then went upstairs and got the duct tape. He put more duct tape on the twine, tied D.H.'s hands together, and put tape around her hands, chest, and arms. Shipps asked her if she was all right, and he then left the room.

Although D.H. felt that the twine was a little loose, she sat and waited 30 to 45 minutes for Shipps to leave for work. When she could not hear any noise in the house, she pulled her arms out of the twine, removed the duct tape from her mouth, and used her teeth to unfasten some of the tape. She used her belt buckle to scratch through the duct tape on her legs. She pushed at the bathroom door and was able to push boxes off a table that Shipps had placed in front of the door. She ran upstairs, unlocked the back door, and then went to get her purse. She next ran into the bedroom, grabbed a shirt, and ran to a neighbor's house, but no one was home.

D.H. then ran two to three blocks to a friend's house. After the police were called, D.H. was taken to a hospital for medical examination. She also discovered that her billfold, which had contained $2 to $3, was missing.

The friend testified that when D.H. arrived that morning, D.H. was shaking, traumatized, and very upset. D.H. was carrying her purse on one arm, her belt buckle was hanging from her pants, and there was duct tape residue at the bottom of her pants. The friend observed red marks about a half-inch wide on D.H.'s neck and wrists.

A police officer found D.H.'s vehicle in a parking lot about a block north of Shipps' workplace. In a search of D.H.'s house, police found twine and pieces of duct tape, but no evidence of forced entry.

Shipps testified that he was married and had three children. Shipps said that during his relationship with D.H., he bought groceries and paid her gas bills, car payments, car insurance, and rent. Shipps said he also shoveled snow, mowed, did general housekeeping, repaired items around the house, and helped D.H. move once before he injured his hand. Shipps said he and D.H. did not socialize with others because D.H. did not want people to know they were together.

Shipps testified that he was at work on June 19, 2001, when D.H. called and asked him to buy some twine, which he purchased at a hardware store after work. When he showed her the twine, she said it was not the right kind to use for a clothesline. Shipps said he went to physical therapy at 3 p.m. and then to a friend's house. He returned to D.H.'s house at 12:45 or 1 a.m. and knocked on the door, and D.H. let him in. They went to bed, had sex, and then went to sleep. Shipps said he woke up at 6 a.m. and took D.H.'s vehicle to work. He said they had argued about money and about Shipps' providing support to D.H. Shipps said he had told D.H. that he could not afford to pay her bills all the time and that the relationship needed to end. He later testified that he and D.H. argued when she said she wanted to break off the relationship. Shipps said he did not break into D.H.'s house and did not have sex with her without her permission. He stated that he never beat or threatened her and that he did not bind her with twine and duct tape.

A jury found Shipps guilty of kidnapping and not guilty of the other three charges. His motion for new trial was overruled at the time he was sentenced on April 2, 2002. The trial court sentenced Shipps to life imprisonment, which is the required sentence for a Class IA felony. See Neb. Rev.Stat. § 28-105(1) (Cum.Supp.2002).

On April 8, 2002, Shipps filed a supplementary motion for new trial, asserting that the State had failed to disclose it had information concerning whether Shipps was able to use his right hand at the time of the alleged incident. That motion was also overruled. Shipps appeals from the denial of his motions for new trial.

ASSIGNMENTS OF ERROR

Shipps asserts numerous errors that can be summarized as follows: (1) The trial court erred in denying his motions for mistrial and for new trial based on the State's comments during voir dire that Shipps was a married man who had engaged in an adulterous relationship; (2) the trial court erred in denying his motions for mistrial and for new trial based on the State's production of inflammatory, prejudicial, and irrelevant testimony from a witness in violation of U.S. Const. amend. XIV and Neb. Const. art. I, § 3; (3) the trial court erred in failing to grant a new trial when the State wrongfully withheld exculpatory material which had been requested during discovery, depriving Shipps of a fair trial under U.S. Const. amend. XIV and Neb. Const. art. I, § 3; (4) the trial court erred in failing to grant a new trial based on prosecutorial misconduct; and (5) cumulative trial error denied Shipps his constitutional right to a fair trial.

ANALYSIS

STATE'S REMARKS DURING VOIR DIRE

Shipps asserts that the trial court erred in denying his motions for mistrial and for new trial based on the State's remarks during voir dire that Shipps was a married man who had engaged in an adulterous relationship.

During voir dire, the trial court asked a number of questions of the prospective jurors, and then the State began its questioning by indicating that the case involved sexual matters. The prosecutor said:

The evidence, I think, is going to show, ladies and gentlemen, that when the defendant, Kelly Shipps, was having — he had a relationship with an individual named [D.H.,] who is the victim. At the time that Mr. Shipps and [D.H.] were having the relationship, Mr. Shipps was still married. Do any of you feel that the fact that —

At that point, defense counsel objected, and a sidebar conference was held. Defense counsel'...