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State v. Muhannad

Supreme Court of Nebraska

February 6, 2015

STATE OF NEBRASKA, APPELLEE,
v.
WA'IL M. MUHANNAD, APPELLANT

Page 599

[Copyrighted Material Omitted]

Page 600

Appeal from the District Court for Douglas County: GARY B. RANDALL, Judge.

Alan G. Stoler, P.C., L.L.O., for appellant.

Jon Bruning, Attorney General, and Stacy M. Foust for appellee.

CONNOLLY, STEPHAN, McCORMACK, MILLER-LERMAN, and CASSEL, JJ. WRIGHT, J., participating on briefs. HEAVICAN, C.J., not participating.

OPINION

Page 601

[290 Neb. 61] PER CURIAM.

NATURE OF CASE

Wa'il M. Muhannad appeals the order of the district court which denied his plea in bar following a mistrial. This is the second time that this case has been appealed under such circumstances. We addressed the denial of Muhannad's plea in bar after the first mistrial in State v. Muhannad ( Muhannad I ).[1] The present appeal arises from a plea in bar filed after a second mistrial, which, like the first, resulted from impermissible testimony by a particular witness.

In denying the plea in bar filed after the second mistrial, the district court determined that double jeopardy did not bar retrial, because the prosecutor did not intend to goad Muhannad into moving for the mistrial. We affirm the denial of Muhannad's plea in bar.

FACTS

Muhannad is charged with first degree sexual assault of his stepdaughter, M.H. He has been brought to trial on this charge two separate times. Each time, the trial ended in mistrial and he filed a plea in bar which alleged that double jeopardy barred retrial.

First Mistrial

In the first jury trial, the State's last witness was Carrie Gobel, a licensed mental health practitioner and M.H.'s therapist. Gobel testified, without objection, to

Page 602

the fact that M.H. had been diagnosed with posttraumatic stress disorder (PTSD) and to the symptoms M.H. exhibited.[2] But when the prosecutor asked Gobel to describe the " 'traumatic event that ha[d] caused this diagnosis,'" Muhannad objected.[3] His objection was overruled, and the prosecutor again asked, " 'According to your assessment of [M.H.], what was the traumatic event that initiated the diagnosis of PTSD?' Gobel [290 Neb. 62] answered, ...


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