[Copyrighted Material Omitted]
Appeal fro the District Court for Franklin County: STEPHEN R. ILLINGWORTH, 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.
[289 Neb. 779] 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.
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 deteriorate. Rinehart and Nancy took Joe Jr. to the hospital at [289 Neb. 780] 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 abdomen. 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 enforcement 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.
[289 Neb. 781] 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 abdomen, 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 majority 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 sidebar. 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 [289 Neb. 782] immunity to Nancy pursuant to Neb. Rev. Stat. § 29-2011.02 (Reissue 2008), which provides that a court may grant a witness 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 presence 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 speaking with Nancy's counsel, he believed that Nancy " intends to plead the Fifth Amendment." Draper's counsel again reiterated 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 ...