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Appeal from the District Court for Sarpy County: DANIEL E. BRYAN, JR., Judge.
Jon Bruning, Attorney General, and James D. Smith for appellant.
Gregory A. Pivovar for appellee.
HEAVICAN, C.J., WRIGHT, CONNNNOLLY, STEPHAN, MCCORMACK, and MILLER-LERMAN, JJ. CASSEL, J., not participating.
OPINION BY: MCCORMACK
[290 Neb. 992] McCormack, J.
I. NATURE OF CASE
The defendant was charged with sexual assault of two girls he babysat. It was revealed during trial that defense witnesses had viewed forensic interviews of the girls. The State believed this was a violation of the trial court's discovery order and the statute pertaining to victim interviews, Neb. Rev. Stat. § 29-1926(2)(a) and (b) (Reissue 2008). Although defense counsel was unfamiliar with the legal issues surrounding the alleged discovery violation, counsel entered into an agreement with the State to strike the entire testimony of one defense witness and to exclude any testimony from two other defense witnesses. The defendant was convicted. The postconviction court granted the defendant's motion for postconviction relief on the ground that he was deprived of effective assistance of trial counsel. We affirm.
Philip A. Armstrong and his wife lived next door to a family with three young children. The family had moved to the Armstrongs' neighborhood in Omaha, Nebraska, in June 2006. The family had twin daughters, M.G. and H.G., born in April 2000, and a younger son. The Armstrongs and their neighbors developed a close relationship. The neighbors' children would often run back and forth between the neighboring yards to visit or play with the Armstrongs.
The neighbors' three children required babysitting Wednesdays after school from approximately 2 until 4 p.m. The children's mother was a teacher at the school the children [290 Neb. 993] attended. The children's original babysitter died of cancer during the spring of 2007. When their first babysitter died, the girls were in first grade and the boy was in preschool.
Armstrong's wife, who was at home due to a work-related injury, began babysitting the children in March 2007 and for the remainder of that school year. During that time, Armstrong was working full time. Armstrong's wife went back to work at a school lunchroom in the fall of 2007. Armstrong had since retired, and arrangements were made for him to pick the children up from school on Wednesdays and watch them until their mother could arrive. Armstrong also agreed to watch the children on Thursdays before school, from approximately 7 to 8:30 a.m.
In July 2008, the girls told their parents that Armstrong had been touching them inappropriately. After an investigation, Armstrong was charged with one count of first degree sexual assault of a child and two counts of third degree sexual assault of a child. Armstrong pled not guilty, and the case was tried before a jury. Armstrong
was represented by counsel, who was assisted by cocounsel.
(a) Opening Statements
During opening statements to the jury, the State painted a picture of betrayal by a close family friend and neighbor. The State told the jury that the evidence would show how, during the time of the alleged abuse, the victims' behavior changed. They became angrier. Also, witnesses would show how the girls became increasingly reluctant to spend time with Armstrong.
Defense counsel told the jury in opening statements that defense witnesses would testify that the girls were always happy to spend time with Armstrong. In fact, they often did not want to leave when their mother arrived to pick them up. Defense counsel told the jury that they would hear from Armstrong's family. Defense counsel made specific reference to Armstrong's wife, his daughter, son-in-law, and granddaughter, although counsel did not directly state those persons would testify.
[290 Neb. 994] (b) Case in Chief
During the State's case in chief, several witnesses described the girls as being happy when they were in first grade. They loved school. They had adjusted quickly to their move and had made lots of friends.
The girls' parents and school staff described a change in the girls' behavior and mood as they proceeded along in second grade. The girls, especially H.G., seemed preoccupied, more emotional, angry, clingy, and withdrawn. All witnesses agreed that the girls' brother remained happy throughout this time.
H.G. began seeing the school counselor during second grade. The girls' parents explained that M.G. and H.G. had transitioned from a traditional classroom in first grade into a Montessori classroom in second grade. None of the girls' first grade friends or classmates were in the new second grade classroom. A teacher at the school and the principal both testified that this transition normally did not cause great distress. The principal had, in addition, observed that the girls seemed comfortable in their new Montessori classroom. Nonetheless, the girls' parents partially attributed H.G.'s change in behavior to this transition.
The parents also testified that from June 2006 through May 2008, the girls' father occasionally had to be out of town for his job. H.G. described her father as being " gone a lot" during second grade. The girls' father testified that when in town, he worked long hours. In October 2008, the father had to be out of town for a more extended period of time, but visited his family on the weekends.
Witnesses from school noticed a particular change in behavior with regard to the girls' being picked up on Wednesdays by Armstrong. The girls used to run out to meet Armstrong in the beginning of second grade. As the year progressed, the witnesses testified the girls were habitually lagging behind Armstrong when walking to his car. H.G., especially, seemed " sad." The girls' brother continued to seem happy to go with Armstrong.
The girls' mother testified that when she arrived at the Armstrongs' home to pick the girls up, the girls were ready to [290 Neb. 995] go home right away. Often they would go home before their mother was done visiting. The mother said that the girls never stayed at the house after she had gone home.
On cross-examination, the mother admitted that there were other times when the girls would run and hide from her when she arrived to pick them up. H.G. similarly testified that they would sometimes run
and hide from their mother or father when they came to pick them up from the Armstrongs' home and that they would sometimes ask to stay a bit longer.
The girls' mother testified that as the girls' second grade year progressed, it was more often than not that Armstrong was alone watching the children when she arrived to pick them up. The girls' mother usually arrived at the Armstrongs' home around 3:30 or 4 p.m. During cross-examination, the girls' mother clarified that Armstrong's wife was there about as often as she was not. She admitted that in her pretrial deposition, she had said Armstrong's wife was " usually" home when she picked the girls up on Wednesday afternoons.
The girls' mother testified that the Armstrongs' granddaughter, who was living in the Armstrongs' basement during that period of time, was rarely home when the girls were being babysat.
M.G. and H.G. testified that both Armstrong's wife and granddaughter were " sometimes" at the house while they were being babysat.
The girls' mother testified that M.G. would often hang on Armstrong and his wife. Armstrong and his wife were generally affectionate with the girls and their brother and would pick them up, wrestle with them, and tickle them. H.G. testified that she and her siblings liked to jump on Armstrong and play with him. The girls' father testified that up until the day the girls reported the sexual assaults, they seemed to enjoy being with Armstrong and his wife. They wrestled and cuddled with Armstrong and sat on his lap. They demanded attention from both Armstrong and his wife. H.G. testified that she did not like sitting on Armstrong's lap, but that she liked to sit on the lap of Armstrong's wife or granddaughter.
The mother recalled one incident sometime after the middle of the school year when H.G. started kicking and wanted [290 Neb. 996] down when Armstrong picked her up while the girls were playing and the families were together in the backyard. And, at some point, H.G. began saying she was not feeling well on Tuesday nights.
Several witnesses recalled an incident in the summer of 2008, when Armstrong and his son-in-law were handing the girls over the 6-foot fence between the neighbors' yards to their parents. H.G. said to Armstrong, " don't touch my private spot." The girls' mother explained that the girl's comment did not cause her any concern. Armstrong, she said, was incidentally touching H.G.'s bottom in order to get her over the fence.
In late July 2008, the girls' mother had arranged for the Armstrongs to babysit the girls and their brother for the day. As the girls' mother and father were tucking H.G. into bed, H.G. expressed reluctance and agitation when she learned she would be going over to the Armstrongs' house. Because this was not the first time H.G. had expressed reluctance to go to the Armstrongs, her mother began questioning H.G.
Eventually, H.G. disclosed that Armstrong had been sexually abusing her. When H.G.'s mother asked H.G. to demonstrate what Armstrong had done, H.G. sat on her father's lap and rubbed her hands back and forth against her vaginal area. The parents woke M.G. up and had a conversation with M.G. in which she said Armstrong had done similar things to her. The parents thereafter went to the girls' brother, who indicated no awareness of the alleged incidents of abuse.
The girls' mother waited several days before contacting the police. Throughout that week before reporting the matter to the police, the mother asked the girls more
questions in order to be certain the girls were not misconstruing what had occurred. The mother testified that she never spoke to the girls about it at the same time and that she tried to keep the conversations neutral and brief.
After the parents reported the disclosure to the police, the girls were interviewed by a forensic interviewer at Project Harmony, a child advocacy center. The forensic interviewer testified at trial as to Project Harmony's protocols that are designed to avoid leading questions or nonverbal cues. The [290 Neb. 997] interviewer described that it is preferable that a qualified forensic interviewer be able to speak to the child victim before the child is questioned by anyone else on the subject of the abuse. The forensic interviewer testified that about 80 percent of child victims do not disclose abuse right away, and she outlined the various reasons why that is the case.
M.G. and H.G. testified at trial. At the time of trial, the girls were 9 years old and starting fourth grade. Both M.G. and H.G. described how Armstrong would rub their vaginal area while sitting in Armstrong's lap watching television. H.G. testified that Armstrong would keep his hand on top of her underwear, but her underwear often " would go inside my baby hole." M.G. and H.G. testified that they never discussed the abuse with each other. Their testimony indicates that neither girl witnessed the other being abused.
There were no eyewitnesses to the alleged sexual abuse. The girls' parents testified that the chair where the assaults allegedly took place was immediately visible upon walking into the house from the usual entrance from the garage. H.G. described that when the assaults took place, no other adult was at home, and her sister and brother were not in the room. M.G. described that neither Armstrong's wife nor granddaughter were home when the assaults occurred but that H.G. and her brother were sometimes in the room when she was being assaulted.
(i) Armstrong's Granddaughter
The State closed, and Armstrong presented his defense. Armstrong's granddaughter was the first witness to testify. The granddaughter testified that she lived in the Armstrongs' home from December 2006 to March 2008. She explained that she was " frequently" around the living room area when the children were being babysat on Wednesdays after school. She was usually at the Armstrongs' home from the time they were picked up at school until shortly before the children were to be picked up by their parents. The granddaughter testified that Armstrong's wife was usually home by 2:30 p.m. and was typically present when the children were there as well.
[290 Neb. 998] The granddaughter testified that the children loved to play " pretend games." She testified that the children also liked to sit on Armstrong's lap while watching television. The children would try to push each other off of Armstrong. Sometimes Armstrong would get on the floor with the children, who would then climb over him.
The granddaughter never observed the children anxious or nervous around Armstrong. The children never acted like they wanted to leave when their mother or father came to pick them up. According to the granddaughter, the children often stayed while their parents visited with the Armstrongs and, " [v]ery often," the children would stay for a while even after their parents had gone home.
(ii) Armstong's Son-in-Law
Armstrong's son-in-law was the next witness to testify in Armstrong's defense. He testified that he had seen the children
interacting with Armstrong on many occasions when visiting the Armstrongs' home. He often observed the children " jump all over" Armstrong. He never observed the children demonstrate any reluctance to be around Armstrong.
The son-in-law testified that he was present during the incident in which one of the girls was being passed over the fence and said " 'don't touch my privates.'" The son-in-law testified that, in fact, he heard the girls say " 'don't touch my privates'" casually in other contexts--at least four or five times. Once, the girls said this when they were sitting on his wife's lap. It seemed to the son-in-law that the girls " were just saying it," sometimes " giggling" when they did. He indicated that the girls said this when they were not actually being touched in an inappropriate way.
During cross-examination, the State questioned the son-in-law at length about what materials he had reviewed prior to trial. The son-in-law explained that he had read the girls' pretrial depositions. Furthermore, the son-in-law confirmed that he had seen the Project Harmony video interviews of the girls. Upon further questioning, the son-in-law indicated that he, his wife, ...