State v. Draper ( 2015 )

Nebraska Advance Sheets
STATE v. DRAPER 777
Cite as 289 Neb. 777
State of Nebraska, appellee, v.
P eter Francis Draper, appellant.
___ N.W.2d ___
Filed January 9, 2015. No. S-13-991.
1. Constitutional Law: Witnesses: Appeal and Error. An appellate court
reviews de novo a trial court’s determination of the protections afforded by
the Confrontation Clause of the Sixth Amendment to the U.S. Constitution and
article I, § 11, of the Nebraska Constitution and reviews the underlying factual
determinations for clear error.
2. Statutes: Appeal and Error. Statutory interpretation presents a question
of law, which an appellate court reviews independently of the lower court’s
determination.
3. Jury Instructions: Appeal and Error. Whether jury instructions are correct is
a question of law, which an appellate court resolves independently of the lower
court’s decision.
4. Motions for New Trial: Appeal and Error. A trial court’s order denying a
motion for new trial is reviewed for an abuse of discretion.
5. Trial: Prosecuting Attorneys: Witnesses: Self-Incrimination: Appeal and
Error. Under Namet v. United States, 373 U.S. 179, 83 S. Ct. 1151, 10 L. Ed. 2d
278 (1963), when a prosecutor calls a witness to the stand with the knowledge
that the witness will invoke the privilege against self-incrimination, reversible
error exists either when the prosecution makes a conscious and flagrant attempt
to build its case out of inferences arising from use of the testimonial privilege
or when inferences from a witness’ refusal to answer adds critical weight to the
prosecution’s case in a form not subject to cross-examination.
6. Trial: Courts: Witnesses: Self-Incrimination. Absent extraordinary circum-
stances, trial courts should exercise their discretion to forbid parties from calling
witnesses who, when called, will only invoke a privilege.
7. Constitutional Law: Criminal Law: Trial: Witnesses. The Confrontation
Clauses of U.S. Const. amend. VI and Neb. Const. art. I, § 11, guarantee the
right of an accused in a criminal prosecution to be confronted with the witnesses
against him or her.
8. ____: ____: ____: ____. The right of confrontation, which is secured for defend­
ants in state as well as federal criminal proceedings, means more than being
allowed to confront the witness physically.
9. Constitutional Law: Witnesses. The purpose of the right of confrontation is
primarily to guarantee a right for the accused to cross-examine witnesses against
him or her.
10. Constitutional Law: Testimony: Evidence. The Confrontation Clause was
designed to prevent depositions or ex parte affidavits from being used against a
prisoner in lieu of a personal examination and cross-examination of the witness,
and courts must interpret the Sixth Amendment with this focus in mind.
11. Trial: Courts: Witnesses. Pursuant to Neb. Evid. R. 611, Neb. Rev. Stat.
§ 27-611 (Reissue 2008), courts limit cross-examination of witnesses to the
subject matter of the direct examination and matters affecting the credibility of
the witness.
Nebraska Advance Sheets
778 289 NEBRASKA REPORTS
12. Criminal Law: Appeal and Error. Not all trial errors, even trial errors of con-
stitut onal magnitude, entitle a criminal defendant to the reversal of an adverse
trial result.
13. Appeal and Error. When determining whether an alleged error is so prejudicial
as to justify reversal, courts generally consider whether the error, in light of the
totality of the record, influenced the outcome of the case.
14. Convictions: Appeal and Error. It is only prejudicial error, that is, error which
cannot be said to be harmless beyond a reasonable doubt, which requires that a
conviction be set aside.
15. Courts: Trial: Witnesses: Evidence. Namet v. United States, 373 U.S. 179, 83
S. Ct. 1151, 10 L. Ed. 2d 278 (1963), instructs courts to consider the invocation
of a privilege within the entire context of the case and other evidence presented
to the jury.
16. Constitutional Law: Trial: Witnesses. The right to cross-examine a witness is
critical for ensuring the integrity of the factfinding process and is an essential
requirement for a fair trial.
17. Trial: Motions to Strike: Jury Instructions: Presumptions. An objection fol-
lowed by an admonition or instruction is typically presumed to be sufficient to
dispel prejudice.
18. New Trial: Appeal and Error. While any one of several errors may not, in and
of itself, warrant a reversal, if all of the errors in the aggregate establish that a
defendant did not receive a fair trial, a new trial must be granted.
19. Appeal and Error. An appellate court is not obligated to engage in an analysis
that is not needed to adjudicate the controversy before it.
20. Criminal Law: Evidence: New Trial: Appeal and Error. Upon finding revers-
ible error in a criminal trial, an appellate court must determine whether the total
evidence admitted by the district court, erroneously or not, was sufficient to
sustain a guilty verdict.
21. Evidence: New Trial: Double Jeopardy: Appeal and Error. If evidence is not
sufficient to sustain a verdict after an appellate court finds reversible error, then
double jeopardy forbids a remand for a new trial.
Appeal from the District Court for Franklin County:
Stephen R. I llingworth, Judge. Reversed and remanded for
a new trial.
Charles D. Brewster, of Anderson, Klein, Swan & Brewster,
for appellant.
Jon Bruning, Attorney General, and Stacy M. Foust for
appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Nebraska Advance Sheets
STATE v. DRAPER 779
Cite as 289 Neb. 777
Heavican, C.J.
NATURE OF CASE
Peter Francis Draper was convicted in the district court for
Franklin County, Nebraska, of intentional child abuse resulting
in death and intentional child abuse resulting in serious bodily
injury. Draper appeals his convictions. Because of cumulative
error concerning both the Confrontation Clause under the Sixth
Amendment and Neb. Evid. R. 513, Neb. Rev. Stat. § 27-513
(Reissue 2008), we reverse the convictions and remand the
cause for a new trial.
BACKGROUND
This case involves the alleged abuse and subsequent
death of 2-year-old Joseph Rinehart, Jr. (Joe Jr.). Draper
was Joe Jr.’s maternal grandfather. Laura Rinehart, Joe Jr.’s
mother, and Nancy Draper (Nancy), Draper’s wife and Joe
Jr.’s grandmother, were also both charged and convicted of
related crimes.
The Drapers lived in a three-bedroom mobile home in
Naponee, Franklin County, Nebraska. In March or April 2011,
Rinehart and her husband, along with their four children,
moved from Racine, Wisconsin, to Naponee. The Rineharts
moved into the Drapers’ residence. At the time of trial, the
Rineharts’ surviving three children ranged in age from 2 to 6
years old. In June or July, Rinehart’s husband moved out of the
house, and at the time of trial, Rinehart and her husband were
“going through a separation” but were not yet divorced.
In exchange for a lighter sentence, Rinehart agreed to testify
against Draper and Nancy. At trial, Rinehart gave accounts
of various times Draper allegedly abused Joe Jr. This abuse
purportedly resulted in several different severe injuries to Joe
Jr. over the year prior to his death. According to Rinehart, the
discipline administered by Draper that eventually caused Joe
Jr.’s death occurred on April 25, 2012. Rinehart testified that
she saw Draper “pin” Joe Jr. down on a bed with his knee in
Joe Jr.’s stomach and groin area. Rinehart testified that she
saw Draper do this three different times.
After this incident, Joe Jr.’s condition began to dete-
riorate. Rinehart and Nancy took Joe Jr. to the hospital at
Nebraska Advance Sheets
780 289 NEBRASKA REPORTS
approximately 6 p.m. on Monday, April 30, 2012. Rinehart
told hospital staff that Joe Jr. had diarrhea and had been
vomiting for the last several days. When the doctor on call
for the hospital arrived, he ordered an x ray of Joe Jr.’s abdo-
men. The x ray came back negative for injuries, and Joe Jr.
was treated for constipation. He was given fluids, mineral
oil, and a glycerin suppository. He was then discharged from
the hospital.
Rinehart testified that on the ride home from the hospital,
Joe Jr. started to breathe strangely and became nonresponsive.
After they arrived home, Joe Jr. started having what Rinehart
described as a seizure and eventually he stopped breathing. Joe
Jr. was brought back to the hospital at approximately 7:55 p.m.
Joe Jr. was not breathing when he arrived at the hospital and
staff attempted to perform cardiopulmonary resuscitation. Joe
Jr. was declared deceased at 8:41 p.m.
After Joe Jr.’s death, hospital staff contacted the Franklin
County sheriff’s office. Investigators from the Nebraska State
Patrol, along with a deputy from the Franklin County sheriff’s
office, interviewed Draper, Nancy, and Rinehart at the Draper
residence the night of Joe Jr.’s death. Draper told law enforce-
ment that Joe Jr. and his brother had a “bone disease.” Draper
denied that Joe Jr.’s death was caused by physical violence. He
did admit that he, Rinehart, and Nancy were the only people
who looked after Joe Jr.
An autopsy was performed shortly after Joe Jr.’s death.
The cause of death was determined to be multiple blunt force
trauma of the head, trunk, and extremities. The manner of
death was ruled to be homicide. Post mortem CT scans on
Joe Jr. revealed numerous injuries, including a lateral skull
fracture, a perforated bowel, a fractured pelvic bone, and
healed-over rib fractures. The skull fracture and pelvic bone
fracture appeared to have occurred within the previous 2
weeks. The skull fracture was likely caused by “direct, broad
force against the skull.” Several bruises on Joe Jr.’s body
were documented and were determined to have developed
within 24 hours of his death. There was also severe swelling
of Joe Jr.’s brain and an excessive amount of bleeding in his
abdominal cavity.
Nebraska Advance Sheets
STATE v. DRAPER 781
Cite as 289 Neb. 777
After the autopsy, on May 2, 2012, all three adults were
interviewed by law enforcement again at separate locations.
Rinehart described how Draper put his knee in Joe Jr.’s abdo-
men, but did not offer any other instances of potential abuse by
Draper. After this second round of interviews, all three were
arrested. On May 3, while in custody, both Rinehart and Nancy
were interviewed again. This time, Rinehart gave a full account
of the alleged abuse committed by Draper against Joe Jr. and
the other children. Nancy stated that she felt safer telling the
truth knowing that Draper had been arrested.
On June 21, 2012, Draper was charged with committing, on
or between April 23 and 30, intentional child abuse resulting in
death. On January 22, 2013, the State filed a second-amended
complaint which, in addition to the original count, also charged
Draper with committing, on or between July 12, 2011, and
April 22, 2012, intentional child abuse resulting in serious
bodily injury. A jury trial began on May 6, 2013.
In his testimony at trial, Draper denied all the allegations of
abuse against him. He stated that he did not handle the major-
ity of the discipline and that it was Rinehart who primarily
disciplined the children. Draper argued that because he had
multiple sclerosis, he would not have been able to press his
knee into Joe Jr. on the bed the way Rinehart described. Draper
could not provide any explanation as to how Joe Jr. received
his injuries.
At trial, the State intended to call Nancy to testify for
the State’s case in chief. The record on appeal indicates
that counsel for Nancy informed both the trial court and the
State that Nancy intended to exercise her Fifth Amendment
privilege against self-incrimination if she were to be called
as a witness.
Immediately prior to Nancy’s testimony, the trial court, the
attorney for Draper, and the attorney for the State had a side-
bar. Draper’s counsel stated that it was his “understanding that
Nancy . . . intends to invoke the Fifth Amendment.” Draper’s
counsel argued that having the jury hear her invoke the Fifth
Amendment, considering her relationship to Draper, would
have an unfairly prejudicial effect on the jurors. In response,
the State informed the judge that it planned to offer use
Nebraska Advance Sheets
782 289 NEBRASKA REPORTS
immunity to Nancy pursuant to Neb. Rev. Stat. § 29-2011.02
(Reissue 2008), which provides that a court may grant a wit-
ness use immunity “[w]henever a witness refuses . . . to testify
. . . .” The State argued that it could do so only after Nancy
claimed the privilege and that it needed to be done in the pres-
ence of the jury.
After the trial court took a recess to review § 29-2011.02,
counsel for Draper again warned the trial court that after speak-
ing with Nancy’s counsel, he believed that Nancy “intends to
plead the Fifth Amendment.” Draper’s counsel again reiter-
ated that Nancy’s claims of privilege would be prejudicial
toward Draper, “especially if she decides she’s not going to
testify after she’s offered immunity by the State.” The trial
court ruled that Nancy must first assert her right not to testify
before immunity could be granted. The trial court stated that he
“d[id]n’t see” Nancy’s invoking the privilege in the presence of
the jury “as being inflammatory on that basis.” The trial court
allowed the State to call Nancy as a witness.
Nancy was then called to testify in the presence of the jury.
After Nancy invoked her privilege against self-incrimination,
the State made a motion asking the trial court to confer immu-
nity. The trial court informed Nancy that none of her testimony
could be used against her in another court proceeding. After
this, Nancy continued to refuse to testify and only responded
by again reasserting her privilege against self-incrimination.
The trial court then proceeded to allow the State to treat Nancy
as a hostile witness and ask her leading questions. After each
refusal, the trial court ordered Nancy to testify, but never held
her in contempt.
In total, the State asked four leading questions which essen-
tially amounted to repeating inculpatory statements against
Draper that Nancy had made in her confession to investiga-
tors. Draper’s counsel objected multiple times to the continued
questioning of Nancy. After Nancy continued to refuse to tes-
tify, the trial court excused the witness. Draper’s counsel did
not request to cross-examine the witness or object to her being
excused. Draper’s counsel requested that the trial court admon-
ish the jury “to disregard what the State’s attorney said to her
Nebraska Advance Sheets
STATE v. DRAPER 783
Cite as 289 Neb. 777
that she wouldn’t answer.” The trial court overruled Draper’s
motion and did not so admonish the jury.
In its opposition to Draper’s motion for new trial and in its
brief on appeal, the State argues that Draper procured Nancy’s
refusal to testify. In support of its opposition to Draper’s
motion, the State produced a letter written by Draper to Nancy
before she was to give her testimony. In the letter, Draper
reminds Nancy of a conversation their attorneys had with each
other in which Nancy’s attorney notified Draper’s attorney of
Nancy’s intention to assert her Fifth Amendment privilege if
she were called to testify.
The State referred to Nancy’s refusal to testify twice dur-
ing its closing argument. The State asked the jury how the
injuries could have occurred to Joe Jr. in a way other than
how Rinehart explained them, suggesting that there was no
other credible explanation for the origin of the injuries. The
State said that “he [Draper] denies it. Nancy . . . won’t tell
you.” Later during the State’s rebuttal argument, the State
even more directly referenced Nancy’s testimony: “Why do
you think [Draper] on May 2 sent a letter to Nancy . . . , his
wife, reminding her not to testify? Encouraging her not to
testify at his trial? Think about that.” Draper did not object to
either statement.
After the close of evidence, Draper requested the trial court
to instruct the jury to disregard Nancy’s testimony. The pro-
posed instruction informed the jury that it was “not to con-
sider this act by this witness as evidence against [Draper], or
any of the questions asked of the witness as evidence against
[Draper].” The trial court rejected the proposed instruction.
The jury returned a verdict of guilty on both counts. After
the verdict, Draper filed a motion for new trial. He argued that
the trial court erred in (1) allowing the State to call Nancy as
a witness with the knowledge that she was going to invoke
her Fifth Amendment privilege against self-incrimination; (2)
allowing the State to continue to ask Nancy leading ques-
tions, in spite of her refusal to answer; and (3) refusing to
give Draper’s proposed jury instruction regarding Nancy’s
testimony. The trial court denied Draper’s motion. Draper was
Nebraska Advance Sheets
784 289 NEBRASKA REPORTS
sentenced to 60 years’ to life imprisonment for child abuse
resulting in death and to 49 to 50 years’ imprisonment for child
abuse resulting in serious bodily injury, the sentences to be
served consecutively. Draper appeals.
ASSIGNMENTS OF ERROR
Draper assigns as error, consolidated, restated, and reor-
dered, that the trial court (1) erred in allowing the State to
call Nancy to testify in the presence of the jury, knowing she
would invoke her Fifth Amendment privilege against self-­
incrimination; (2) erred in allowing the State to treat Nancy
as a hostile witness and continue to ask leading questions
even after she refused to testify; (3) erred in violating the
Confrontation Clause of the Sixth Amendment by dismissing
Nancy as a witness without giving Draper an opportunity to
cross-examine her; (4) erred when it failed to admonish the
jury, both during trial and after the close of evidence, to draw
no inference from Nancy’s invocation of her right against
self-incrimination; (5) erred in overruling Draper’s motion for
new trial; (6) erred in finding sufficient evidence to support
Draper’s convictions; and (7) erred by sentencing Draper to an
excessive sentence, contrary to Nebraska law.
STANDARD OF REVIEW
[1] An appellate court reviews de novo a trial court’s deter-
mination of the protections afforded by the Confrontation
Clause of the Sixth Amendment to the U.S. Constitution and
article I, § 11, of the Nebraska Constitution and reviews the
underlying factual determinations for clear error.1
[2] Statutory interpretation presents a question of law, which
an appellate court reviews independently of the lower court’s
determination.2
[3] Whether jury instructions are correct is a question of law,
which an appellate court resolves independently of the lower
court’s decision.3
1
State v. Kitt, 284 Neb. 611, 823 N.W.2d 175 (2012).
2
State v. Smith, 286 Neb. 77, 834 N.W.2d 799 (2013).
3
State v. Merchant, 288 Neb. 439, 848 N.W.2d 630 (2014).
Nebraska Advance Sheets
STATE v. DRAPER 785
Cite as 289 Neb. 777
[4] A trial court’s order denying a motion for new trial is
reviewed for an abuse of discretion.4
ANALYSIS
Draper’s primary argument on appeal concerns Nancy’s
testimony. Draper assigns that the trial court erred in allow-
ing Nancy to be called to testify in the presence of the jury,
knowing that she would invoke her Fifth Amendment privilege
against self-incrimination; in allowing the State to continue
to question Nancy while she refused to testify; in denying
Draper the right to conduct cross-examination; and in failing
to admonish or instruct the jury not to draw an inference from
Nancy’s refusal to testify. Draper also assigns that the trial
court abused its discretion in denying Draper’s motion for new
trial on substantially these same grounds.
Constitutional Background.
Two different U.S. Supreme Court opinions are relevant to
Draper’s claim. Taken together, Namet v. United States5 and
Douglas v. Alabama6 provide the framework for our analysis
of Draper’s assigned errors under the Confrontation Clause
of the Sixth Amendment. The two opinions address different,
but related, factual scenarios relevant to Draper’s assigned
errors. The Court in Namet addressed when and under what
circumstances a witness’ invocation of a privilege in the pres-
ence of the jury would constitute reversible error. Applying
the principles of Namet, the Court in Douglas then addressed
when a witness’ refusal to give any testimony, by invoking a
privilege, may deprive the defendant of his or her rights under
the Confrontation Clause.
Our analysis begins with Namet. In that case, the defendant
was accused of operating a gambling ring.7 The prosecution’s
4
State v. Schreiner, 276 Neb. 393, 754 N.W.2d 742 (2008).
5
Namet v. United States, 373 U.S. 179, 83 S. Ct. 1151, 10 L. Ed. 2d 278
(1963).
6
Douglas v. Alabama, 380 U.S. 415, 85 S. Ct. 1074, 13 L. Ed. 2d 934
(1965).
7
Namet, supra note 5.
Nebraska Advance Sheets
786 289 NEBRASKA REPORTS
theory was that the gambling took place at several stores and
that the defendant went to each store every day to collect the
bets and pay off the winners. One of the stores in question was
owned by a husband and wife, both of whom were also charged
in relation to the gambling ring. On the day of the defendant’s
trial, both the husband and wife pleaded guilty to their charges,
and both were called to testify at the defendant’s trial. Both
witnesses gave extensive testimony. The husband testified that
he did have dealings with the defendant and had accepted
wagers in the store. Although the two witnesses invoked their
privileges against self-incrimination multiple times, the defend­
ant did not object to any of the questions or request any cura-
tive instructions.
[5] In its decision in Namet, the U.S. Supreme Court
described two circumstances when the prosecutor’s calling
a witness to the stand with the knowledge that the witness
would invoke the privilege against self-incrimination consti-
tuted reversible error.8 The first category, based upon prosecu-
torial misconduct, involved situations when the prosecution
“makes a conscious and flagrant attempt to build its case out of
inferences arising from use of the testimonial privilege.”9 The
second category involves cases in which “inferences from a
witness’ refusal to answer added critical weight to the prosecu-
tion’s case in a form not subject to cross-examination, and thus
unfairly prejudiced the defendant.”10
The Court, in Namet, quickly determined that the case
did not constitute prosecutorial misconduct under the first
prong, and primarily addressed the case through the “critical
weight” analysis. Under the second prong of Namet, revers-
ible error does not exist when the inferences are “‘no more
than minor lapses through a long trial.’”11 The Court held that
the defendant’s “substantial rights” were not impacted by the
8
Id.
9
Id., 373 U.S. at 186.
10
Id., 373 U.S. at 187.
11
Id. (quoting United States v. Hiss, 185 F.2d 822 (2d Cir. 1950)).
Nebraska Advance Sheets
STATE v. DRAPER 787
Cite as 289 Neb. 777
witnesses’ refusals to testify.12 The prosecutor had a legitimate
reason for calling the witnesses, because they possessed sub-
stantial nonprivileged information. The Court also determined
that the “lengthy nonprivileged testimony” the witnesses gave
minimized the prejudicial nature of the few times the wit-
nesses invoked the privilege.13 In the context of the testimony
of the two witnesses, the limited instances when the witnesses
refused to testify were not the “chief source” of the inference
that they had engaged in criminal activity with the defend­
ant.14 According to the Court, the nonprivileged testimony
given by the two witnesses was already sufficient to create
that inference.
Also important to the Court’s decision in Namet was that
instructions or other curative devices would or should have
been available had the defendant requested them at trial. Not
only did the defendant fail to request a curative instruction,
he actually relied on the invocation of the privilege in his
argument to the jury. The Court declined to hold that the
trial court must, sua sponte, take some action to remedy the
invocation of the privilege in the presence of the jury. But
the Court suggested that a proper instruction to the jury to
disregard a witness’ invocation of any testimonial privilege
would be sufficient to cure what would otherwise be a preju-
dicial error.
Although the U.S. Supreme Court in Namet did not expressly
mention the Confrontation Clause, the Court subsequently
acknowledged and applied the constitutional foundation of that
case in Douglas.15 In Douglas, the State called a codefendant
to testify at trial. Because the codefendant had already been
convicted, but planned to appeal the case, his attorney advised
him to invoke his privilege against self-incrimination when
asked any questions. The judge told the witness that he could
12
Id., 373 U.S. at 191.
13
Id., 373 U.S. at 189.
14
Id.
15
Douglas, supra note 6.
Nebraska Advance Sheets
788 289 NEBRASKA REPORTS
not invoke his privilege because he was already convicted and
ordered him to testify. The judge declared him a hostile witness
and permitted the State to read from a confession made by the
witness, pausing every so often to ask the witness if he made
the statement the prosecutor just read. The witness continued
to assert his privilege not to testify. Through this method, the
State read the entire confession into evidence, even though the
confession itself was inadmissible under state law.
The Court held that because the prosecutor “was not a wit-
ness, the inference from his reading that [the witness] made
the statement could not be tested by cross-examination.”16
Likewise, the statements imputed to the witness were not
subject to cross-examination, because the witness never admit-
ted to making them. The defendant was deprived of his Sixth
Amendment right to confront the witness through cross-­
examination, because the witness gave no testimony upon
which a cross-examination could be based. Because the jury
was still exposed to the statements allegedly made by the wit-
ness, the prosecutor was effectively able to circumvent the
requirements of the Confrontation Clause.
Relying on Namet, the Court considered the weight the
statements made by the prosecutor played in the case. The
alleged statements by the witness were the only pieces of
direct evidence linking the defendant to the crime. The state-
ments also provided “a crucial link in the proof both of
petitioner’s act and of the requisite intent to murder.”17 The
Court found that the statements “clearly bore on a fundamen-
tal part of the State’s case” and, quoting Namet, determined
that “[t]he circumstances are therefore such that ‘inferences
from a witness’ refusal to answer added critical weight to the
prosecution’s case in a form not subject to cross-­examination,
and thus unfairly prejudiced the defendant.’”18 With this back-
ground in mind, we will next address each error Draper
has assigned.
16
Id., 380 U.S. at 419.
17
Id.
18
Id., 380 U.S. at 420.
Nebraska Advance Sheets
STATE v. DRAPER 789
Cite as 289 Neb. 777
Allowing Nancy to Assert Her
Privilege in Jury’s Presence.
[6] Draper assigns that the trial court erred when it permitted
Nancy to assert her privilege against self-incrimination in the
presence of the jury. Consistent with Namet and its progeny,
the Nebraska Evidence Rules, contained in chapter 27 of the
Nebraska Revised Statutes, as well as our case law interpret-
ing those rules, direct trial courts to avoid a jury’s exposure
to a witness’ claim of privilege whenever possible. Section
27-513(2) provides that “proceedings shall be conducted, to
the extent practicable, so as to facilitate the making of claims
of privilege without the knowledge of the jury.” “‘[A]bsent
extraordinary circumstances, trial courts should exercise their
discretion to forbid parties from calling witnesses who, when
called, will only invoke a privilege.’”19
The State acknowledges that Nancy did assert her Fifth
Amendment privilege before the jury and that the jury
was aware Nancy intended to do so before Nancy ever
took the witness stand. The State nevertheless argues that
because it had offered Nancy immunity, § 27-513(2) was no
­longer applicable, and that there was no error in the district
court’s actions.
But the State’s offer of immunity did not override the
purpose of § 27-513(2). The purpose of that subsection is to
prevent the jury from drawing an unfavorable inference from
a witness’ assertion of a privilege. Such purpose applied not-
withstanding the State’s intent to offer immunity. Nancy was
called to testify when all parties knew that she would, before
being granted immunity, invoke her privilege against self-­
incrimination. And the record fails to establish any basis justi-
fying the assertion of that privilege in front of the jury.
The evidence in the record on appeal in this case does not
rise to the level of “extraordinary circumstances” that would
make it impracticable for the privilege to be asserted outside
the jury’s presence.20 Nancy and her counsel were available,
19
State v. Robinson, 271 Neb. 698, 725, 715 N.W.2d 531, 556 (2006).
20
See, id.; § 27-513(2).
Nebraska Advance Sheets
790 289 NEBRASKA REPORTS
as well as Draper and his counsel. All parties knew of Nancy’s
likely refusal to testify and could have been prepared for a
determination outside the presence of the jury. The remaining
question would have been whether Nancy would continue to
refuse to testify after she was granted use immunity. A deter-
mination outside the presence of the jury would have provided
the opportunity to answer that question.
Section 27-513(2) requires only that the privilege must
be claimed, absent extraordinary circumstances, “without the
knowledge of the jury.” Although trial courts in Nebraska have
had witnesses assert a privilege at a hearing outside the jury’s
presence,21 a hearing is not absolutely required to comply with
§ 27-513(2). In jurisdictions that do mandate such a hearing,
we note that the basic requirements are quite simple.22 The wit-
ness must be given the opportunity to either testify or invoke
a privilege. The State may then request the trial court to offer
the witness immunity. The trial court is then able to determine
whether the witness intends to continue to refuse to testify and
must decide whether it would be prejudicial to the defendant
for the witness to be called in front of the jury. At the same
time, the trial court may also consider whether the failure to
call the witness, despite the refusal to testify, would unfairly
prejudice the State.23
Section 27-513(2) makes it clear that courts must avoid
having witnesses claim privileges in the presence of the jury
whenever practicable. And § 29-2011.02 contains no require-
ment that a witness first invoke a privilege in front of the jury
in order for immunity to be provided. In this case, all parties
knew, at the very least, that Nancy would invoke the privilege
before being granted use immunity. The trial court failed to
fully comply with the requirements of § 27-513(2) and allowed
Nancy to assert her Fifth Amendment privilege without giving
Nancy the opportunity to assert her privilege outside the pres-
ence of the jury.
21
Robinson, supra note 19.
22
See id.
23
See United States v. Vandetti, 623 F.2d 1144 (6th Cir. 1980).
Nebraska Advance Sheets
STATE v. DRAPER 791
Cite as 289 Neb. 777
Deprivation of Draper’s Right
to Confront Nancy.
[7-10] Draper assigns that the trial court erred when it did
not allow Draper to cross-examine Nancy. The Confrontation
Clauses of U.S. Const. amend. VI and Neb. Const. art. I, § 11,
guarantee the right of an accused in a criminal prosecution to
be confronted with the witnesses against him or her. “The right
of confrontation, which is secured for defendants in state as
well as federal criminal proceedings . . . , ‘means more than
being allowed to confront the witness physically.’”24 The pur-
pose of the right of confrontation is primarily to guarantee a
right for the accused to cross-examine witnesses against him
or her.25 In particular, the Confrontation Clause was designed
“‘to prevent depositions or ex parte affidavits [from] being
used against the prisoner in lieu of a personal examination and
cross-examination of the witness . . . .’”26 We must interpret the
Sixth Amendment “‘with this focus in mind.’”27
The State argues that Draper waived this argument when he
failed to object or request cross-examination at trial. However,
as in Douglas, the nature of the State’s questioning itself left
no meaningful opportunity for cross-examination. Recall that
in Douglas, the Court determined that the witness was not
available for cross-examination, because the witness actually
gave no testimony.
[11] In the same way, Draper was not afforded the right to
cross-examine the witness, because Nancy did not actually
testify at all. Pursuant to Neb. Evid. R. 611, Neb. Rev. Stat.
§ 27-611 (Reissue 2008), courts limit cross-examination of
witnesses to the subject matter of the direct examination and
matters affecting the credibility of the witness.28 The scope of
24
Delaware v. Van Arsdall, 475 U.S. 673, 678, 106 S. Ct. 1431, 89 L. Ed. 2d
674 (1986) (citation omitted).
25
Id.
26
Douglas, supra note 6, 380 U.S. at 418-19. See, also, State v. Leibel, 286
Neb. 725, 838 N.W.2d 286 (2013).
27
Leibel, supra note 26, 286 Neb. at 731, 838 N.W.2d at 293.
28
State v. Bjorklund, 258 Neb. 432, 604 N.W.2d 169 (2000), abrogated on
other grounds, State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008).
Nebraska Advance Sheets
792 289 NEBRASKA REPORTS
cross-examination was limited to Nancy’s answers, of which
there were none, and would not extend to the prosecutor’s
statements. Draper was already deprived of his rights under
the Confrontation Clause when the prosecutor was allowed,
through leading questions, to read statements in front of the
jury that Nancy had made during her confession, while Nancy
continued to refuse to testify.
Additionally, a defendant’s rights under the Confrontation
Clause do not turn upon the validity of the asserted privilege.
The Court in Douglas did not reach the question of whether
the witness properly invoked his privilege, because “[i]t is suf-
ficient for the purposes of deciding petitioner’s claim under
the Confrontation Clause that no suggestion is made that [the
witness’] refusal to answer was procured by the petitioner . .
. .”29 Since Douglas, courts appear to be in agreement that the
principal inquiry is whether the defendant had a meaningful
opportunity for cross-examination, not whether the witness
made a valid assertion of a privilege.30
The State, in its brief, argues that Draper is responsible for
Nancy’s refusal to testify. In Douglas, the Court noted that
the witness was acting in his own self-interest not to testify,
and not out of a desire to protect the defendant.31 The State
alleges that Draper convinced or coerced Nancy into not testi-
fying against him through a letter written by Draper to Nancy
before she was to give her testimony at his trial. But the
record shows that the letter was written after Nancy’s lawyer
had already informed Draper’s attorney that Nancy intended
to invoke the privilege at Draper’s trial. In the letter, Draper
is essentially just reminding Nancy about the conversation
between their attorneys. It is unclear from the letter what
initially led to her decision not to testify, but it appears that
Nancy and her attorney had already made the decision by the
time Draper wrote his letter. Considering the entire letter and
29
Douglas, supra note 6, 380 U.S. at 420.
30
See, e.g., U.S. v. Torrez-Ortega, 184 F.3d 1128 (10th Cir. 1999).
31
Douglas, supra note 6.
Nebraska Advance Sheets
STATE v. DRAPER 793
Cite as 289 Neb. 777
the facts before us, the record is insufficient to establish that
Draper was responsible for Nancy’s refusal to testify.
Although this case is not as extreme as Douglas—when
the prosecutor essentially read a witness’ entire confession—
Draper was nevertheless deprived of his right to cross-examine
the witness. Allowing the State to read statements allegedly
made by the witness on a prior occasion over that witness’
refusal to testify is a violation of the Confrontation Clause.
The trial court erred when it allowed the State to continue to
question Nancy using leading questions while she insisted on
refusing to testify after being granted use immunity.
We note that the trial court’s error does not automatically
constitute reversible error. The Court in Douglas still applied
the Namet critical weight analysis to determine whether revers-
ible error existed. We will follow the same approach.
Trial Court’s Failure to Instruct
Jury Pursuant to § 27-513(3).
Draper assigns that the trial court erred when it failed to
admonish the jury after Nancy left the stand and failed to
instruct the jury not to draw an inference from Nancy’s refusal
to testify after the close of evidence. Arguably, either an
admonishment or a curative instruction would have been suf-
ficient, under Namet, to cure any prejudice to Draper through
Nancy’s assertion of privilege and refusal to testify.32 Nebraska
law directs trial courts to give curative instructions in cases
such as these. Section 27-513(3) provides that “[u]pon request,
any party against whom the jury might draw an adverse infer-
ence from a claim of privilege is entitled to an instruction that
no inference may be drawn therefrom.” And the ability of the
trial court to admonish the jury as to the proper or improper
use of evidence is well settled.33
Draper’s requested instruction would have met the require-
ments of § 27-513(3). Even though Draper’s requested
32
See Namet, supra note 5.
33
See, e.g., Wamsley v. State, 171 Neb. 197, 106 N.W.2d 22 (1960);
Grandsinger v. State, 161 Neb. 419, 73 N.W.2d 632 (1955).
Nebraska Advance Sheets
794 289 NEBRASKA REPORTS
instruction does not mention the term “inference,” Draper’s
instruction accomplished the same thing when it directed the
jury “not to consider this act by the witness as evidence against
[Draper].” The trial court erred when it failed to either admon-
ish the jury or comply with § 27-513(3) by providing a cura-
tive instruction regarding Nancy’s assertion of privilege and
testimony, or lack thereof.
Reversible Error.
[12-15] We must finally determine whether the errors by
the trial court constitute reversible error. “Not all trial errors,
even trial errors of constitutional magnitude, entitle a criminal
defendant to the reversal of an adverse trial result.”34 “When
determining whether an alleged error is so prejudicial as to
justify reversal, courts generally consider whether the error, in
light of the totality of the record, influenced the outcome of the
case.”35 “It is only prejudicial error, that is, error which can-
not be said to be harmless beyond a reasonable doubt, which
requires that a conviction be set aside.”36
We begin with the first prong of the Namet analysis—sit­
uations involving prosecutorial misconduct. There is nothing
in the record to suggest that the State made a conscious and
flagrant attempt to build its case out of inferences arising from
Nancy’s use of the privilege. While it is true that the State
knew Nancy was likely to invoke the privilege, as the Court
noted in Namet, the State “need not accept at face value every
asserted claim of privilege.”37 The fact that the State actually
requested the trial court to grant Nancy immunity for her tes-
timony suggests the State’s intent in calling her was to elicit
nonprivileged testimony. And the State may have called Nancy
so that the district court would hold her in contempt for refus-
ing to testify despite the provision of immunity. The State’s
34
State v. Lara, 258 Neb. 996, 1002, 607 N.W.2d 487, 491 (2000).
35
Robinson, supra note 19, 271 Neb. at 710, 715 N.W.2d at 547.
36
State v. Aguilar, 264 Neb. 899, 910-11, 652 N.W.2d 894, 904 (2002).
37
Namet, supra note 5, 373 U.S. at 188.
Nebraska Advance Sheets
STATE v. DRAPER 795
Cite as 289 Neb. 777
purpose in calling Nancy was not solely for her to invoke the
privilege in the jury’s presence. Therefore, this case does not
fall under the first prong of Namet.
[15] The Court’s analysis in Namet, under the second prong,
instructs us to consider the invocation of the privilege within
the entire context of the case and other evidence presented to
the jury. Since Namet, courts have distilled the Court’s “critical
weight” analysis into several factors: whether the State knew
the witness would invoke the privilege, the number of ques-
tions that elicit an assertion of the privilege, whether the infer-
ences are merely cumulative of other evidence, whether the
inferences relate to central or collateral matters, whether either
side attempted to draw adverse inferences in closing argument
or at any other time during trial, and whether the jury was
instructed not to draw an inference from the witness’ refusal
to testify.38 We concur with the reasoning of these courts and
analyze accordingly.
In this case, the substance and manner of the State’s exami-
nation following Nancy’s refusal to testify establish that Draper
was unfairly prejudiced. The subject of the State’s questioning
directly related to matters central to Draper’s guilt or inno-
cence. The statements read by the State corroborated Rinehart’s
testimony and filled an obvious gap in the State’s case. Even
though the State presented a litany of experts and other wit-
nesses for its case in chief, Rinehart was the only witness
to give an account of who actually injured Joe Jr. Without
Nancy’s statements, the case largely came down to Draper’s
word against Rinehart’s.
[16] Draper was no doubt prejudiced when the trial court
allowed the State to continue to question Nancy using leading
questions after Nancy refused to testify. Draper was denied the
right to cross-examine the statements read by the State. And we
have stated that the right to cross-examine a witness is “‘critical
38
See, e.g., U.S. v. Victor, 973 F.2d 975 (1st Cir. 1992); Rado v. State of
Conn., 607 F.2d 572 (2d Cir. 1979); Fletcher v. United States, 332 F.2d
724 (D.C. Cir. 1964).
Nebraska Advance Sheets
796 289 NEBRASKA REPORTS
for ensuring the integrity of the factfinding process’”39 and is
“‘“an essential requirement for a fair trial.”’”40
Further, the facts of this case also depart from Namet in
several key aspects. Nancy did not give any nonprivileged tes-
timony at all, unlike in Namet, where the witnesses gave ample
nonprivileged testimony to offset their refusals to testify.41
Here, the only exposure the jury had to Nancy was through
her refusal to testify. Also in Namet, the prosecutors made no
reference to the witnesses’ invocation of the privilege for the
duration of the trial, and the defense actually relied upon the
witnesses’ refusal to testify in its argument.42 But here, the
State made two references to Nancy’s refusal to testify dur-
ing its closing arguments, whereas Draper did not reference
Nancy’s testimony at all for the duration of the trial.
Despite the prejudicial nature of the State’s examination of
Nancy, the trial court failed to admonish the jury or provide
a curative instruction. The Court in Namet emphasized how a
curative instruction has the potential to remove any prejudice
from a witness who invokes a privilege in the presence of
the jury.
[17] Draper requested both an admonition and a jury instruc-
tion, and the trial court failed to give either. We cannot dis-
count the possibility that Nancy’s assertion of privilege and
insistence in refusing to testify stuck in the minds of the jurors.
An admonishment immediately following Nancy’s examina-
tion or the giving of Draper’s requested jury instruction after
the close of evidence was critical to ensure a fair trial and to
eliminate the risk of prejudice. “An objection followed by an
admonition or instruction is typically presumed to be sufficient
to dispel prejudice.”43 Without an admonishment or curative
instruction, Nancy’s refusal to testify cannot be considered
merely a “minor lapse” under the Namet framework. The trial
39
State v. Hartmann, 239 Neb. 300, 313, 476 N.W.2d 209, 217 (1991).
40
State v. Johnson, 255 Neb. 865, 873, 587 N.W.2d 546, 552 (1998).
41
See Namet, supra note 5.
42
Id.
43
State v. Gartner, 263 Neb. 153, 162, 638 N.W.2d 849, 858 (2002).
Nebraska Advance Sheets
STATE v. DRAPER 797
Cite as 289 Neb. 777
court erred when it failed to either admonish after Nancy’s tes-
timony or instruct the jury at the close of evidence not to draw
any inferences from Nancy’s refusal to testify.
[18] Based on all the circumstances of the case, we conclude
that the inferences derived from Nancy’s refusal to testify and
the statements read by the State added “critical weight” to the
State’s case in a form not subject to cross-examination. We
are careful to point out that all of the errors, taken together,
amount to reversible error. “[W]hile any one of several errors
may not, in and of itself, warrant a reversal, if all of the errors
in the aggregate establish that a defendant did not receive a
fair trial, a new trial must be granted.”44 We cannot say that the
sum of all the errors in this case is harmless beyond a reason-
able doubt.
Remaining Assignments
of Error.
[19] Because we reverse Draper’s convictions, we need
not address his remaining assignments of error. “An appel-
late court is not obligated to engage in an analysis that is not
needed to adjudicate the controversy before it.”45
Double Jeopardy.
[20,21] Having found reversible error, we must determine
whether the totality of the evidence admitted by the trial court
was sufficient to sustain Draper’s conviction. Upon finding
reversible error in a criminal trial, an appellate court must
determine whether the total evidence admitted by the district
court, erroneously or not, was sufficient to sustain a guilty
verdict.46 If it was not, then double jeopardy forbids a remand
for a new trial.47 We find that the evidence was sufficient to
sustain a guilty verdict, and thus, double jeopardy does not bar
a new trial.
44
State v. Jacob, 253 Neb. 950, 980, 574 N.W.2d 117, 141 (1998), abrogated
on other grounds, State v. Nolan, 283 Neb. 50, 807 N.W.2d 520 (2012).
45
State v. Rogers, 277 Neb. 37, 72-73, 760 N.W.2d 35, 63 (2009).
46
State v. McCave, 282 Neb. 500, 805 N.W.2d 290 (2011).
47
Id.
Nebraska Advance Sheets
798 289 NEBRASKA REPORTS
CONCLUSION
We conclude that the cumulative errors of failing to comply
with the provisions of § 27-513, the continued questioning of
Nancy after she refused to testify, and the trial court’s refusal
to either admonish or instruct the jury not to draw an inference
from the invocation of the privilege constitute reversible error.
Because the evidence presented by the State was sufficient to
sustain Draper’s convictions, we reverse the convictions and
remand the cause for a new trial.
R eversed and remanded for a new trial.
Randy Thompson et al., appellees and cross-appellants,
v. Dave H eineman, in his official capacity as
Governor of the State of Nebraska, et al.,
appellants and cross-appellees.
___ N.W.2d ___
Filed January 9, 2015. No. S-14-158.
1. Judgments: Appeal and Error. An appellate court independently reviews ques-
tions of law decided by a lower court.
2. Judgments: Jurisdiction. A jurisdictional question which does not involve a
factual dispute presents a question of law.
3. Constitutional Law: Statutes. The constitutionality of a statute presents a ques-
tion of law.
4. Standing: Jurisdiction: Parties. Standing is a jurisdictional component of a
party’s case. Only a party that has standing—a legal or equitable right, title, or
interest in the subject matter of the controversy—may invoke the jurisdiction of
a court or tribunal.
5. Standing: Proof. Common-law standing usually requires a litigant to demon-
strate an injury in fact that is actual or imminent.
6. Taxation: Standing. Taxpayer standing is an exception to the injury-in-fact
requirement for standing.
7. Actions: Taxation: Injunction. A resident taxpayer, without showing any inter-
est or injury peculiar to itself, may bring an action to enjoin the illegal expendi-
ture of public funds raised for governmental purposes.
8. Taxation: Standing: Public Purpose. As a limited exception to the injury-in-fact
requirement for standing, taxpayers may raise a matter of great public concern.
9. Mandamus: Public Purpose. The “great public concern” exception is another
name for the “public interest” exception in early mandamus cases to enforce a
public right.