State v. Wood

• Decision Date: 19 November 2021
• Docket Number: No. S-20-877.,S-20-877.
• Citation: 966 N.W.2d 825,310 Neb. 391
• Parties: STATE of Nebraska, appellee, v. Marvin L. WOOD, appellant.
• Court: Nebraska Supreme Court

310 Neb. 391

966 N.W.2d 825

STATE of Nebraska, appellee,

v.Marvin L. WOOD, appellant.

No. S-20-877.

Supreme Court of Nebraska.

Filed November 19, 2021

Robert W. Alexander, Deputy Hall County Public Defender, for appellant.

Douglas J. Peterson, Attorney General, and Nathan A. Liss, Lincoln, for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Freudenberg, J.

I. INTRODUCTION

Marvin L. Wood appeals from his conviction of first degree sexual assault of a child. He asserts the trial court erred by refusing to appoint him a DNA expert, sustaining the prosecution's objection to further use of a forensic video to refresh the victim's recollection, and sustaining the State's relevancy objection to his attempt to adduce the fact that the declarant of certain out-of-court statements was a convicted felon. Wood also makes numerous claims of ineffective assistance of his trial counsel, including the failure to adequately support the motion for a DNA expert, the handling of the State's DNA evidence, and the cross-examination of the victim. We affirm the judgment below.

II. BACKGROUND

With counsel different from trial counsel, Wood appeals his conviction, following a jury trial, of first degree sexual assault of a child pursuant to Neb. Rev. Stat. § 28-319.01(1)(a) (Reissue 2016). Trial counsel did not request that the jury be instructed on a lesser-included offense of attempted first degree assault of a child. The victim was friends with Wood's daughter, and the assault occurred during a sleepover with Wood's daughter at Wood's apartment.

The victim was 8 years old at the time of the assault and 9 years old at the time of trial.

1. MOTION TO EMPLOY EXPERT WITNESS

Wood was charged in September 2019. Due to laboratory delays in DNA testing, trial was continued to August 3, 2020, with a pretrial conference set for July 2. The DNA test results became available to the defense on June 8. At the July 2 pretrial conference, defense counsel indicated readiness to go to trial. However, on July 17, Wood moved to continue trial on the grounds that he would be asking the court to provide funds to retain a DNA expert and that the expert Wood wished to hire was not available during the scheduled week of trial. The prosecutor objected, noting it was the first she had heard about the alleged need for a DNA expert. The court granted the continuance, ordering trial to begin on September 14.

On July 27, 2020, Wood moved for the court to provide him "with reasonable funds to employ an independent expert witness in the field of DNA science" and set forth the estimated costs and fees for the expert witness he proposed to hire. As for the need for such an expert, the motion elaborated that "[b]ased on counsel's review of discovery, the State's evidence in the above-styled case appears to consist of testimony of an alleged victim, photographs of her injuries, medical reports and expert testimony." This meant that

[Wood] has a particularized need for the assistance of an independent expert in the field of DNA science to assess the DNA reports and testing methods completed by the Nebraska Crime Lab and explain if they are consistent with the statement(s) of the alleged victim, proper scientific methods, and the other evidence collected in this case.

Based upon the DNA report completed by the Nebraska State Patrol Crime Laboratory, "it has become apparent further analysis is needed regarding test results and methods of testing used by the Nebraska State Patrol Crime Laboratory." Finally, the motion set forth that "[c]ounsel for [Wood] lacks the necessary expertise to question the DNA reports provided by the State in regards to DNA testing methods and DNA results to determine whether the alleged victim's statements and testing are consistent with the DNA evidence that may exist." And "[c]ounsel lacks expertise regarding testing methodology and if such testing was conducted according to the recognized standards." Therefore, trial counsel was "in need of the assistance of an expert witness in the DNA field to assist in evaluating these matters."

At hearings on the motion, trial counsel introduced evidence to support Wood's indigent status. The court acknowledged the evidence demonstrated Wood was indigent. Trial counsel explained Wood had used all his assets in retaining counsel that was continuing representation on a pro bono basis. The only other evidence offered by trial counsel was a copy of the motion and its attached cost estimate for the proposed expert. Trial counsel acknowledged that the court had allowed Wood to employ an expert sexual assault nurse examiner to testify on behalf of the defense and that the State had allowed the defense to have access to its DNA expert from the Nebraska State Patrol Crime Laboratory. Nevertheless, trial counsel became aware of the need for a DNA expert after witness preparation occurred with Wood's expert sexual assault nurse examiner in mid-July. Trial counsel argued that "based on some of the conclusions and the methodology that was used in the creation of the DNA report, we're needing a DNA expert" "to look at how these tests were performed." Trial counsel elaborated:

We believe it's necessary to employ a DNA expert to help the jury to understand what the DNA evidence in this case means. Specifically, I believe the evidence will show that there was found on the alleged victim's underwear a mixture of DNA from three people, a 4 percent portion of which appears to be that of ... Wood.

However, the amount of DNA, the amount of cells where it was found, to explain to the jury how that actually exists in life, whether it's touch DNA, what kind of cells, all of that, Judge, I'm not an expert in DNA. The jury is not an expert in DNA. But I believe it's important that we have someone who can explain to them exactly what this means.

The State will have an expert that does all of that and explain how things were tested and how it was found, why they believe that it's ... Wood's DNA on those underwear, but the jury also needs to understand the facts in totality.

Because in speaking to our expert, talking about markers, talking about whether it's one in a billion or one in a trillion or one in 500,000, all these probabilities of who it could be, how many cells, what kind of cells, whether it's touch DNA, seminal fluid or semen, all of these things matter. It's something we don't have the expertise to explain to the jury.

Trial counsel also described an alleged phone call with the Nebraska State Patrol Crime Laboratory in which it was disclosed that no male DNA was detected in any of the swabs and the biologist "didn't understand the findings that were in that lab report." Trial counsel summarized that the request was for the court to "allow us to hire this expert and to use her both for review of the trial to help educate us as to DNA and its meaning, and then to educate the jury and educate a layman exactly what that means."

The court denied the motion. It observed that "virtually no evidence to support the motion was offered" and that "[t]he reasons that prompted an ‘apparent’ need for an expert witness remain largely unspecified." It then reasoned:

The State has indicated that it intends to call upon an expert in genetic analysis employed by the Nebraska Crime Lab. While this expert would technically be considered the State's witness, this Court finds no evidence to suggest that defense counsel is deprived of the right to cross examination. Likewise, this Court possesses no knowledge that would indicate that defense counsel is incapable of amassing sufficient independent research on the subject that would equip defense counsel with the relevant knowledge and resources required to conduct such cross examination.

The court concluded that it was not "required to provide [Wood] with the tools needed for a ‘fishing expedition’ " and it was "confident that defense counsel in this case has the intellectual capacity, resources, and creativity required to mount an exceptionally comprehensive cross examination of the State's proposed expert witness."

2. MOTHER'S TESTIMONY

The first witness called by the State was the victim's mother. She testified that she was in a romantic relationship with Matthew Price, the owner of an auto shop where Wood worked, and that her daughter and Wood's daughter were friends. The two girls often played together at the shop where Wood was employed.

The mother testified that the morning after the victim spent the night at Wood's apartment for a sleepover with Wood's daughter, she was informed the victim would be going to Lincoln, Nebraska, with Wood and his daughter because Wood had to get a title to a vehicle. These arrangements were unexpected and were made without her input. Later that day, Wood dropped the victim off at a parking lot near Price's softball game that the mother was attending. Wood's daughter was not with him. The victim exited Wood's vehicle first, holding an outfit Wood had purchased for her in Lincoln. When Wood exited the vehicle, the first thing he said was, " ‘She's been a fucking brat all day.’ " Price invited Wood to stay for the game, but Wood declined.

The mother and the victim sat in the dugout to watch the game. The mother testified that, since the victim's arrival, the victim "was being really quiet," "clinging on to me pretty tight," and "wasn't saying anything when anybody was around at all." The mother asked the victim if something was wrong. The victim told her mother she needed to tell her a "secret." After the victim told her the "secret," the mother immediately "hollered to the field," telling Price she needed to leave. They took the victim immediately to a hospital. The mother told the victim they needed to see a doctor because of what happened. The victim said, " ‘Okay.’ " She "was crying in the car the whole time."

There was a delay in finding someone to come to the hospital to examine the victim. The mother testified that while they...