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08/03/93 STATE NEBRASKA v. ALISHA J. OWEN

August 3, 1993

STATE OF NEBRASKA, APPELLEE,
v.
ALISHA J. OWEN, APPELLANT.



Appeal from the District Court for Douglas County: Raymond J. Case, Judge, Retired.

Connolly, Miller-Lerman, and Wright, Judges.

SYLLABUS BY THE COURT

1. : Pretrial Procedure. In criminal cases, pretrial orders are made by the trial court in its discretion.

2. Indictments and Informations: Waiver. All defects that may be excepted to by a motion to quash are taken as waived by a defendant pleading the general issue.

3. Trial: Motions for Mistrial: Prosecuting Attorneys: Waiver: Appeal and Error. A party who fails at trial to make a timely motion for mistrial based on prosecutorial misconduct waives the right to assert on appeal that the trial court erred in not declaring a mistrial due to prosecutorial misconduct.

4. Motions for Mistrial: Attorneys at Law: Appeal and Error. A party may not raise alleged misconduct of adverse counsel on appeal where, despite knowledge of the alleged misconduct, the party claiming the misconduct failed to request a mistrial and instead agreed to take the chances of a favorable verdict.

5. Appeal and Error. Plain error may be found on appeal when an error, unasserted or uncomplained of at trial, but plainly evident from the record, prejudicially affects a litigant's substantial right and, if uncorrected, would cause a miscarriage of Justice or damage the integrity, reputation, and fairness of the judicial process.

6. Trial: Judges: Juries: Appeal and Error. A claim of improper conduct on the part of the trial Judge in the presence of the jury will not be reviewed on appeal in the absence of a timely objection.

7. : Records: Public Assistance. Read together, Neb. Rev. Stat. §§ 68-313 and 68-313.01 (Reissue 1990) prohibit the use of welfare-related information as evidence against a welfare applicant in a criminal trial not directly connected with the administration of general assistance.

8. : Presentence Reports. A presentence report is privileged and shall not be disclosed directly or indirectly to anyone other than a Judge, probation officers to whom an offender's file is duly transferred, or others entitled by law to receive such information. The group of others entitled by law to receive such information does not include jurors in a criminal trial.

9. Trial: Evidence: Waiver: Appeal and Error. A party waives the right to assert on appeal prejudicial error concerning admission of evidence when that evidence is received at trial without objection.

10. Appeal and Error. This court will refuse to consider errors assigned but not discussed.

11. Motions to Suppress: Waiver. Any objection as to the voluntariness of a statement of a defendant in a criminal case must be made as a pretrial motion to suppress the statement; failure to object at this stage results in a waiver of the objection.

12. Prisoners: Police Officers and Sheriffs: Appeal and Error. Incarceration does not ipso facto render an interrogation custodial. In all cases, an appellate court must consider the totality of the circumstances, including the individual's freedom to leave the scene and the purpose, place, and length of the questioning.

13. Prisoners: Police Officers and Sheriffs: Miranda Rights: Appeal and Error. When an appellate court asks whether a defendant was subjected to custodial interrogation requiring a Miranda warning, it is asking whether the person to whom the defendant made the statement was exercising custodial or compelling force on the defendant in order to coerce the defendant into making the statement.

14. Equal Protection: Pretrial Procedure. The federal constitutional rule prohibiting peremptory strikes based on race does not apply to strikes based on gender.

15. Trial: Testimony: Motions to Strike: Appeal and Error. One who fails to object to or move to strike testimony may not predicate error on its admission.

16. Trial: Evidence: Appeal and Error. To preserve a claimed error in the admission of evidence, a litigant must make a timely objection which specifies the ground of the objection to the offered evidence.

17. Jury Instructions: Appeal and Error. Once the jury has commenced deliberation, no oral explanation of any instruction is allowed. Any instruction given to the jury by the court and not reduced to writing constitutes error and is sufficient cause for the reversal of the judgment rendered in the trial court.

18. Jury Instructions. When it becomes necessary for the court to give further instruction to the jury while it is deliberating, the proper practice is to call the jury into open court and to give any additional instructions in writing in the presence of the parties or their counsel.

19. Jury Instructions: Appeal and Error. After a jury has retired to deliberate, it is error to give an instruction to the jury out of the presence of the parties or their counsel, but if it clearly appears that prejudice did not flow therefrom, such error is not grounds for reversal.

20. Motions for New Trial: Jury Misconduct. In order for a new trial to be granted on the basis of improper communication between Judge and jury, it must be shown that a substantial right of the defendant was adversely affected and that the defendant was prejudiced thereby.

21. : Jury Misconduct: Presumptions: Proof. If in a criminal case improper communication between a juror and a nonjuror is shown, a rebuttable presumption of prejudice arises and the burden is on the State to prove that the communication was not prejudicial.

22. Judges: Recusal: Appeal and Error. A motion requesting a Judge to recuse himself on the grounds of bias or prejudice is addressed to the discretion of the Judge, and an order overruling such a motion will be affirmed on appeal unless the record establishes bias or prejudice as a matter of law.

23. Juries: Evidence. A jury is not to consider any extraneous evidence in reaching its decision.

24. Jury Misconduct: Trial. When an allegation of juror misconduct is made, and is supported by a showing which tends to prove that serious misconduct occurred, the trial court should conduct an evidentiary hearing to determine whether the alleged misconduct actually occurred. If it occurred, the trial court must then determine whether it was prejudicial to the extent the defendant was denied a fair trial. If the trial court determines that the misconduct did not occur, or that it was not prejudicial, adequate findings should be made so that the determination may be reviewed.

25. Jury Misconduct: New Trial: Proof. In order for a new trial to be granted because of juror misconduct, the party claiming the misconduct has the burden to show by clear and convincing evidence that prejudice has occurred.

26. Rules of Evidence: Jurors. Neb. Rev. Stat. § 27-606(2) (Reissue 1989) prohibits a juror from testifying to the effect of evidence upon his or her mental processes or emotions during deliberations.

27. Jury Misconduct. The question of whether prejudice resulted from jury misconduct must be resolved by the trial court's drawing reasonable inferences as to the effect of the extraneous information on an average juror.

28. Jury Misconduct: Proof. Extraneous material or information considered by a jury may be deemed prejudicial without proof of actual prejudice if the material or information relates to an issue submitted to the jury and there is a reasonable possibility that the extraneous material or information affected the verdict to the detriment of a litigant.

29. Juries: Appeal and Error. An Allen charge constitutes prejudicial error if the charge is determined to be a peremptory order directing an agreement, thereby invading the province of the jury and depriving the defendant of the constitutional right to a decision by an impartial and uncoerced jury.

The opinion of the court was delivered by: Connolly

CONNOLLY, Judge.

This appeal arises from the conviction of the appellant, Alisha J. Owen, on eight counts of perjury under Neb. Rev. Stat. § 28-915 (Reissue 1989). Owen assigns 24 errors. We affirm on all errors properly raised on appeal except those dealing with alleged misconduct by the jury during deliberation and alleged improper communication between the Judge and jury during deliberation. We vacate the trial court's order overruling Owen's motion for new trial and remand this cause with directions to the district court to conduct an evidentiary hearing on the allegations concerning jury misconduct and improper communication between the Judge and jury.

I. FACTS

The trial of Owen lasted 5 weeks. The record contains over 4,000 pages of trial testimony and 182 exhibits, including approximately 11 hours of videotaped testimony. Included in the exhibits are more than 1,000 pages of testimony from a previous grand jury proceeding related to Owen's perjury trial. Having reviewed the foregoing, we present a summary of the facts relevant to the issues raised on appeal.

1. Grand Jury Indictment

This case developed out of the original investigation of the financial collapse of the Franklin Community Credit Union (Franklin) in Omaha, Douglas County, Nebraska. A federal grand jury and the National Credit Union Association investigated in detail the financial misdeeds that caused the credit union to fail. During the investigation of Franklin's financial collapse, allegations surfaced in which adults with connections to the credit union were accused of child sexual abuse. The gist of the allegations was that Larry King, Jr., former head of the credit union, had thrown a series of parties at which minors were sexually abused.

A Douglas County grand jury was impaneled March 19, 1990, to examine alleged illegal activities of the credit union's members, officers, employees, and benefactors. The county grand jury focused its attention on the sexual abuse allegations. Financial abuses concerning the credit union were considered only to the extent that they offered possible leads to dealings involving drugs, pornography, and illicit sexual activity.

The most controversial evidence examined by the grand jury consisted of videotaped statements and live grand jury testimony by the appellant, Owen, and three other youths, Paul Bonacci, Troy Boner, and James "Danny" King, who claimed they had been sexually molested by adults involved in an ongoing scheme of child sexual exploitation. The videotapes had been made in connection with a separate Franklin investigation undertaken by the Nebraska Legislature.

In testimony before the grand jury, Boner and Danny King recanted their videotaped statements. They told the grand jury that the entire chain of allegations was false. The grand jury found that Boner and Danny King had followed Owen's lead in making the videotapes and participating in the scam because they had believed, as had Owen, that the ruse would eventually lead to lucrative book, television, and movie contracts. Furthermore, at the time the videotapes were made, Owen was serving a prison sentence for having passed bad checks. The grand jury determined that Owen had hoped that by stirring up a controversy and then cooperating with authorities in the investigation of the alleged child sexual abuse ring, she could obtain a reduced prison sentence or improved living conditions.

Even absent the recantations of Boner and Danny King, the grand jury found that the allegations of all four youths were lacking in credibility. The grand jury found that the "story of sexual abuse, drugs, prostitution, and judicial bribery presented in the legislative videotapes a carefully crafted hoax, scripted by a person or persons with considerable knowledge of the people and institutions of Omaha." Owen and Bonacci, the two youths who stood by their videotaped statements alleging sexual exploitation, were indicted for perjury.

2. Background on Owen

(a) The Casey Connection

The State argued that Owen's story of Franklin-related child sexual abuse began to take shape when she met Michael Casey in the fall of 1988.

Owen was arrested in September 1988 for having issued bad checks. She was detained for several days and then released pending Disposition of her case. On October 20, Owen checked herself into the St. Joseph Center for Mental Health for psychiatric evaluation and remained there until November 30. Within days of her release, Owen attempted suicide. She was hospitalized again at St. Joseph's from December 5 to 16.

While at St. Joseph's, Owen became acquainted with Casey, whom the grand jury described as a "con man" passing himself off as an investigative reporter who "endeavored to uncover the 'real' Franklin story." Shortly after Owen was released from St. Joseph's in December, Casey contacted her about moving in with him and his male roommate. Casey said that he was an investigative reporter for the New York Times and that he would train Owen to be his assistant. In a February 1990 interview, Owen told FBI special agent Michael Mott that during the 2 to 3 weeks she stayed with Casey, he pumped her for Franklin-related information. She told Mott that she had stonewalled Casey, telling him that she was not involved in the scandal herself. However, in a letter to Owen dated March 15, 1990, and found among Owen's personal papers, Casey wrote that he was working with producers in Los Angeles and Omaha to develop his "Franklin project" and that he would send Owen a copy of the first draft of a script for a play so that Owen could review it and offer her ideas. In a greeting card to Owen dated March 23, 1990, and found among Owen's personal papers, Casey wrote that three national publications and a movie producer were interested in his Franklin project and that Owen was "assured of a job when get out of their as a consultant and researcher."

At trial, Bill Gehrig, a friend of Owen who had visited her during her stay at St. Joseph's, testified that Owen had told him in January 1990 that she had been working with Casey on an investigative report on the Franklin collapse and that she was involved in the stories of abuse that were beginning to surface in the public media at that time. Owen testified that Gehrig was mistaken; she denied ever representing herself as an investigative assistant to Casey on a Franklin probe.

On October 30, 1989, while Owen was serving her prison sentence for a bad check conviction at the Nebraska Center for Women in York, she was contacted by Gary Caradori, a private investigator. Caradori was conducting an investigation for a special committee of the Nebraska Legislature created specifically to investigate Franklin-related allegations of child sexual abuse. Owen said Caradori had told her that he had found her by picking up the name Alisha "off of the streets" and then running the name through a police computer. However, the March 15, 1990, letter to Owen from Casey included the following excerpt:

I also know and feel that promises were made -- before I ever gave Gary your name and location -- he'd assured me that if your info checked out you would receive favorable consideration and protection outside of a prison environment. I feel most responsible if promises were made to you and not kept!

(Emphasis supplied.)

(b) Owen Comes Forth with Allegations

Owen testified that Caradori had shocked her when he informed her at their initial meeting at the Nebraska Center for Women in York on October 30, 1989, that her name had come up more than once in the course of his investigation, particularly among people who knew Larry King. Initially, Owen refused to cooperate with Caradori. She subsequently changed her mind and mentioned that she knew Larry King and other people linked to the child sexual abuse accusations. Owen balked when Caradori said he wanted her to make a formal statement. That concluded the October 30 meeting.

Eventually, Owen decided to tell Caradori her whole story. Caradori returned to the Center for Women around November 7 and began the interviewing process that would yield three videotaped statements by Owen detailing the sexual abuse she allegedly had suffered at the hands of adults connected with Larry King.

On December 15, 1989, in response to a directive from the Attorney General's office, the Nebraska State Patrol interviewed Owen about her Franklin-related allegations. In February and April 1990, the FBI conducted a series of interviews with Owen on the Franklin scandal. Owen was not forced to participate in any of these interviews. Investigators for both law enforcement agencies testified that it was made clear to Owen that she was being interviewed as a victim and a witness, not interrogated as a suspect. The accounts of sexual exploitation that Owen described to the State Patrol and the FBI were generally consistent with the allegations she had made for Caradori on videotape.

In live testimony before the Douglas County grand jury, Owen reasserted the allegations that she had made on videotape for Caradori and in her interviews with the State Patrol and the FBI. The grand jury determined that Owen was lying. At the Conclusion of its proceedings on July 23, 1990, the grand jury handed down an indictment charging Owen with eight counts of perjury pursuant to § 28-915, which provides that a "person is guilty of perjury . . . if in any official proceeding he or she makes a false statement under oath . . . or affirms the truth of a statement previously made, when the statement is material and he or she does not believe it to be true.

3. Pretrial Procedural History

The indictment was filed in district court July 24, 1990. At her August 8 arraignment, Owen pled not guilty. On April 18, 1991, the district court issued an order in which it found that there had been adequate time for discovery. Consequently, the court ordered that all pretrial motions be filed on or before Monday, April 29, as a trial date was set for May 20.

Over the 2 days of Tuesday, April 30, and Wednesday, May 1, defense counsel filed 1 motion to quash, 1 motion for a discovery order, 2 motions in limine, 2 motions to suppress, and 10 motions to dismiss. The court denied hearings on all the motions on grounds that they had been filed out of time. Defense counsel disputed the finding that the motions had been filed out of time. He argued that the court had given him permission to file motions out of time as long as the prosecutor was notified of the late filings. The Judge disagreed with defense counsel and rejected the assertion that mere notice of late filings was sufficient. The Judge insisted that he had given defense counsel permission to file motions after April 29 only if the agreement of the prosecutor had been secured in advance. The record indicates that defense counsel did not inform the prosecutor of the late filings until after the motions had been filed.

Meanwhile, the State had filed a timely motion asking the court to make a pretrial finding that the statements given by Owen to the State Patrol and the FBI between December 15, 1989, and April 10, 1990, had been made voluntarily. The hearing on the motion fills the first 496 pages of the bill of exceptions. Despite the time devoted to the issue, we are unable to find in the record a ruling on the motion by the trial Judge. However, it is clear from the record that the parties proceeded at trial as if the motion had been granted and the Judge had found that Owen's statements to the law enforcement agencies had been made voluntarily.

Immediately before the start of testimony at trial, with the jury impaneled and sworn but not yet in the jury box, defense counsel moved for a mistrial on grounds that Owen's constitutional right to a fair trial had been violated in the course of jury selection. Defense counsel claimed that the State had violated Owen's right to a fair trial by using six of its seven peremptory challenges to excuse females. The motion was overruled, and the jury trial was commenced.

4. Trial

We now review the evidence adduced at trial pertaining to each of the individual charges.

(a) Count I

(i) Alleged Perjury

In substance, Owen testified to the grand jury that she was certain that she had first met Troy Boner and Danny King in August 1983 at a party hosted by Larry King at the Twin Towers, an apartment complex at 30th and Farnam Streets in Omaha. Owen said a Boys Town resident, Richard "Jeff" Hubbell, had taken her to the party, the first of many such parties that Owen, Boner, and Danny King would attend at the Twin Towers. Owen told the grand jury that Robert Wadman, the chief of the Omaha Police Division during the time period in question, and Harold Anderson, the publisher of the Omaha World-Herald during that same time period, were "participants" in these parties. Owen reasserted all of these allegations at trial.

(ii) Evidence

At trial, the state offered the testimony of Hubbell, who testified that he had met Owen at a dance one night in the summer of 1983, but had left the dance sometime before 11 p.m. and had never seen Owen again. Hubbell said he had never taken Owen to the Twin Towers and had never set foot in the complex himself. He disavowed any acquaintance with or knowledge of Larry King, the police chief, the newspaper publisher, and the other people to whom he allegedly had introduced Owen at the party in August 1983.

Bill Gehrig, the friend of Owen who testified that Owen had claimed to be working with Michael Casey on a Franklin investigation, testified that Owen had met Boner for the first time in the summer of 1988 at an Omaha bar called The Run. Boner corroborated Gehrig's testimony that he and Owen had first met in 1988, not 1983.

The State also offered the testimony of the police chief and the newspaper publisher, both of whom completely denied any participation in or knowledge of the parties described by Owen. Details of the testimony of the chief and the publisher will be brought out in our review of other counts that more directly involve those two men.

(b) Count II

(i) Alleged Perjury

In substance, Owen testified to the grand jury that she had attended a second party at the Twin Towers in late August or early September 1983. Owen said that adults in attendance included Larry King, the police chief, and the newspaper publisher. On that occasion, according to Owen, she stayed all night in Alfie Allen's apartment and had sex with Boner. She reasserted the allegations at trial.

(ii) Evidence

We again point out that the police chief and the newspaper publisher denied all allegations pertaining to them and that Boner himself testified that he and Owen had first met in the summer of 1988, not 1983. Furthermore, Boner testified that he had never met Larry King. According to Boner, the connection between himself and the alleged Twin Towers parties was the product of Owen's imagination. Boner testified that he first became involved in the Franklin affair when Gary Caradori, the investigator for the Legislature's "Franklin Committee," contacted him in November 1989 and wanted to know all about the sexual abuse Boner had suffered at the hands of Larry King and company. Boner testified that he had no idea what Caradori was talking about. He would later discover that Owen had already made a videotaped statement for the investigator and had named Boner as one of the victims of a child sexual abuse ring.

After an initial phone call, Boner met with Caradori in person. Caradori kept insisting that Boner come out with the truth about having been sexually abused. At that time, Boner still was not aware that Owen had identified him as a fellow victim. Caradori implied that he already knew Boner's story, but wanted Boner to verify the details. In an attempt to induce Boner to reveal his own experiences of sexual abuse, Caradori referred to prominent Omahans, including Larry King, and to incidents involving transportation of drugs and sexual exploitation with which he thought Boner was familiar. Perhaps most importantly, Caradori told Boner that within a year Boner would be receiving millions of dollars in civil damage awards and book and movie rights. Boner testified that although he knew nothing of the people or events mentioned by Caradori, he decided to play along and make a statement on videotape explaining how he had been victimized.

According to Owen, Larry King owned a penthouse apartment at the Twin Towers, but almost all the parties she attended at the Twin Towers in 1983 and 1984, including the one referred to in count II, were held in Allen's apartment, which was one or two floors below King's penthouse. Betty Cutler, a present owner of the Twin Towers, testified that according to her records Larry King was not a tenant at the Twin Towers in either 1983 or 1984. King first rented the east penthouse of the south tower of the complex on August 20, 1987, and apartment 3-B on February 2, 1988. Both leases terminated June 30, 1988. Cutler had no record of Allen ever occupying a Twin Towers apartment. Allen himself testified that he had never lived in or rented an apartment at the Twin Towers. He denied any knowledge of the alleged series of parties described by Owen and claimed he had never met Owen.

(c) Count III

(i) Alleged ...


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