State v. Trammell
| Decision Date | 10 February 1989 |
| Docket Number | No. 88-299,88-299 |
| Citation | 231 Neb. 137,435 N.W.2d 197 |
| Parties | STATE of Nebraska, Appellee, v. Robert E.C. TRAMMELL, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Physician and Patient. Communications between a patient and a physician for the purpose of diagnosis or treatment of a physical, mental, or emotional condition, not intended to be disclosed to third persons, are privileged.
2. Physician and Patient: Sexual Assault: Evidence. The patient-litigant exception is not applicable to the complaining witness in a prosecution for sexual assault with respect to treatment for a previous mental condition.
3. Constitutional Law: Trial: Witnesses: Words and Phrases. Confrontation means more than the right to confront the witness physically; the primary interest secured by confrontation is the right of cross-examination.
4. Pretrial Procedure: Evidence: Impeachment. Generally, a trial court has some discretion in the matter of discovery, where material is sought for impeachment purposes.
5. Pretrial Procedure: Evidence: Impeachment: Witnesses: Testimony. If the claimed impeaching information is privileged, there must be a showing that there is reasonable ground to believe that the failure to produce the information is likely to impair the defendant's right of confrontation such that the witness' direct testimony should be excluded. Upon such a showing, the court may then afford the State an opportunity to secure the consent of the witness for the court to conduct an in-camera inspection of the claimed information and, if necessary, to turn over to the defendant any relevant material for the purposes of cross-examination. If the defendant does make such showing and such consent is not forthcoming, then the court should exclude the testimony of the witness.
6. Pretrial Procedure: Evidence: Impeachment: Witnesses: Testimony. If the in-camera inspection does reveal relevant material, then the witness should be given an opportunity to decide whether to consent to release of such material to the defendant or have her testimony excluded.
7. Prior Convictions: Right to Counsel: Waiver. In order to prove a prior conviction for enhancement purposes, the State need only show that at the time of the prior conviction the defendant had, or waived, counsel.
Dennis R. Keefe, Lancaster County Public Defender, and Richard L. Goos, Lincoln, for appellant.
Robert M. Spire, Atty. Gen., and William L. Howland, Lincoln, for appellee.
The defendant, Robert E.C. Trammell, was convicted of first degree sexual assault and of being a habitual criminal. He was sentenced to imprisonment for 15 to 25 years with credit for presentence incarceration. He has appealed and contends the trial court erred in refusing to permit him to discover and present evidence concerning the victim's past and present psychiatric condition. He also contends the trial court erred in receiving evidence concerning a prior felony conviction.
The record shows that the assault took place at the victim's apartment in Lincoln, Nebraska, on November 5, 1986. The victim had become acquainted with the defendant in October 1986, and he had befriended her on a number of previous occasions, giving her rides and gifts of furniture and clothing. On these previous occasions, there had been no sexual contact between the victim and the defendant.
On November 5, 1986, at about 2 p.m., the defendant came to the victim's apartment, wanting to talk. According to the victim, the defendant was staggering, acting "differently," and appeared to be mad. The defendant accused her of "messing around with three other guys." She testified that the defendant "beat me up," that he hit her with an open hand on the side of her head several times, and that he also struck her in the left rib area with a closed fist, causing her to cry. The defendant reacted to her crying by telling her to shut up and repeatedly striking her. The victim tried to fight him off, but he kept hitting her. The defendant then made her go into the bedroom and have vaginal, rectal, and oral sex with him without her consent. She was forced to engage in vaginal intercourse about six times, rectal intercourse two to three times, and oral intercourse one to two times. Some of the sex acts took place in the living room. The defendant left at about 4 p.m. The victim then put on her clothes and walked to the Bel-Air Home, where she reported the assault to her landlady's niece, Cathy Bienka Thomas, and the police were called.
Thomas testified that the victim came to the Bel-Air Home and reported that she had been sexually assaulted.
Officer Robert Citta, a Lincoln police officer, testified that he went to the Bel-Air Home at 1640 hours and investigated the case. He testified the victim reported a sexual assault to him. He took her first to her apartment, where he gathered evidence, and then to the Lincoln General Hospital emergency room, where a sexual assault examination was performed and a "rape kit" was procured.
Sandra Sons, the victim's landlady and the owner of Bel-Air, testified that when the victim came to Bel-Air on November 5, 1986, she was frightened, had bruises, and was crying.
The examining physician, Dr. James Billups, found the presence of sperm, indicating that the victim had experienced sexual contact within the prior 24 to 48 hours. He saw the victim again on November 11, 1986, at which time there was a complaint of pain in the rib area, and x rays revealed a fractured rib. The rib bruises were three separate and distinct bruises.
Det. Gregory Sorensen interviewed the victim and presented a photographic array to her. The victim selected the photograph of the defendant as being the person who had assaulted her.
Dr. Reena Roy, a forensic serologist, testified that she examined the various items from the sexual assault kit and the victim's clothing. She found semen on the vaginal swab, on the crotch area of the victim's panties, on the crotch area of the victim's pants, and on the inside of the victim's T-shirt. She testified that the defendant was a nonsecretor and, based on her testing, that the semen she found could have come from the defendant. She could not eliminate the defendant as the source of the semen. She testified that 20 percent of the people are nonsecretors and that taking into account all of the factors, including the fact that the defendant was a PGM 1 type, approximately 12 percent of the black male population fit the category of the defendant, that is, nonsecretors with that PGM type. Dr. Roy had found PGM 1 markers on the vaginal swab, the crotch area of the panties, and the crotch area of the victim's pants.
The victim is a single woman, 40 years of age. She completed one-half of the ninth grade. She did not complete high school because she had a nervous breakdown when she was 13 years of age and was institutionalized on three different occasions at the Lincoln Regional Center, the last admission being when she was 27 years of age. The victim testified that at the time of the assault, she was taking 5 mg of Prolixin, a prescription medication which she had been taking since being at the Lincoln Regional Center. She described the medication as a sedative and stated that it worked to calm her nerves, that the 5 mg dosage was not a strong dosage, and that the medication's effect was minimal. The victim testified that she took Prolixin only part of the time, about every other day, and that she could not recall whether she had taken the medication on the day of the assault.
Dr. Billups, the physician who treated the victim at the emergency room on the day of the assault, testified that 5 mg of Prolixin was a normal dose for an adult and that it was usually prescribed to control a psychosis. Dr. Billups defined persons with psychotic behavior as ones who are not able to think rationally and to conduct their affairs in a normal manner and testified that they may have difficulty with reality. Additionally, he stated that for those psychotic individuals not on medication,...
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