McCormack, J.
I. Nature of Case ...28
II. Background ...28
1. Night of May 31, 1989 ...28
2. Year Following Beard's Disappearance...30
3. Oldson's Diary Excerpts (Exhibits 263 Through 271) ...31
4. Beard's Remains Found in 1992...32
6. Defense ...33
7. Verdict and Sentence ...36
III. Assignments of Error ...36
IV. Analysis ...36
1. Motion to Suppress ...36
2. Oldson's Journal Excerpts ...37
3. Witnesses Kittinger and Dasher: Hybrid Hobson's Choice With Right to Confrontation and Presumption of Innocence...54
4. Tampering With Witnesses ...56
5. Speedy Trial Under Due Process Clause ...61
6. Alleged Backus Diary ...63
7. Motion for New Trial ...67
8. Cumulative Error ...71
9. Sufficiency of Evidence ...71
10. Life Sentence ...72
V. Conclusion ...73
John R. Oldson appeals from his conviction of second degree murder and sentence to life imprisonment. The victim, Catherine Beard, disappeared in 1989. Her remains were found in 1992. Oldson makes numerous arguments on appeal, including that journal entries written by Oldson while incarcerated for another crime and entered into evidence against him at trial were inadmissible and that the testimony of certain witnesses should have been excluded because he was presented with a "Hobson's choice" of either conducting effective cross-examination that would bring to light other bad acts or not conducting an effective cross-examination. We affirm both the conviction and the sentence.
On December 5, 2012, Oldson was charged with first degree murder in relation to the death of Beard on or about May 31, 1989. The information alleged that the murder was premeditated or committed during the perpetration or attempt to kidnap or sexually assault Beard. The following evidence was presented at trial.
On May 31, 1989, Oldson, Oldson's father, Oldson's uncle, and two other members of a work crew, Lawrence Kittinger and Dale Hoppes, were laying brick. They were working on a project at the home of Bonnie McCartney and Roger McCartney. The testimony varied as to how long the project took. Hoppes testified that the project lasted approximately 3½ days. Roger McCartney testified that based on his review of the bills, the brickwork started after May 29 and took a couple of weeks to complete.
After work around 4:30 to 5 p.m., the crew went to the Someplace Else Tavern in Ord, Nebraska. Oldson, Kittinger, and Hoppes rode in Oldson's father's two-tone, cream-and-brown Ford pickup. Oldson's father drove. Oldson's father parked the pickup in the alley behind the bar. The back of the pickup was full of masonry tools.
Numerous witnesses testified that they saw Oldson speaking with Beard, who was sitting at the end of the bar in the Someplace Else Tavern. Though Oldson and Beard were acquainted with one another, there was testimony that they had never been romantically involved. Kittinger and Hoppes testified that Oldson went over to talk with Beard almost immediately after their arrival. Witnesses reported that Oldson and Beard went to stand close together near the jukebox and the pool table. At some point, Oldson had his hand or arm on Beard's shoulder.
Hoppes testified that Oldson asked his father for the keys to the pickup. Several witnesses saw Oldson and Beard walk out of the bar through the back door and into the back alley. It was approximately 6:30 p.m. when Oldson and Beard left the tavern
Beard left her half-finished drink, cigarettes, jacket, house key, and umbrella at the bar. When Beard's sister later checked Beard's room in the house where Beard resided with her mother, she found Beard's belongings undisturbed.
Oldson's father, Kittinger, and Hoppes waited for a while for Oldson to return with the pickup to give them a ride, but Oldson "never showed up." Oldson's father and Kittinger walked together back to Oldson's father's house. Kittinger testified that he and Oldson's father arrived at Oldson's father's house about an hour after Kittinger saw Oldson and Beard leave together. In a statement read to the jury by the defense, Oldson's father, deceased at that time of trial, reported to law enforcement that he and Kittinger left the tavern about 30 minutes after Oldson. It takes about 15 minutes to walk from the Someplace Else Tavern to Oldson's father's house.
When Oldson's father and Kittinger arrived at the house, Oldson was on his way out. Oldson appeared freshly showered. Kittinger asked Oldson if he had gotten "lucky," and Oldson responded that he had not. Instead, according to Kittinger, Oldson told him that "two guys had hustled her away from him in a pickup."
Roger McCartney (hereinafter Roger) testified that one evening after he got home from work, anywhere between 6:30 and 7 p.m., he tried to call Oldson's father at his home, but reached Oldson. Roger testified that he had concerns about the brickwork. This was the only time he called Oldson's home. Roger did not recall the specific date of the telephone call. He testified that if the call was on May 31, 1989, the crew would have had only 1½ days to have completed a substantial amount of brickwork. Roger recalled speaking to an investigator approximately 1 week after Beard's disappearance. In the report of that conversation, the officer reported that Roger said he made the telephone call around 7:30 to 8:30 p.m. on May 31. Roger testified that further reflection caused him to question the date given to the investigator.
Sharlene Whitefoot, an employee of the Someplace Else Tavern in 1989, discovered that Beard's personal items had been left at the bar, and she called Oldson at his father's home. Whitefoot testified that it was approximately 10:30 p.m. on May 31, 1989, when she spoke with Oldson. When Whitefoot asked Oldson if he had seen Beard, Oldson said he was just getting out of the bathtub and indicated that he did not know where Beard was. Whitefoot and the owner of the Someplace Else Tavern reported Beard as missing.
Around 3 a.m. on the day after Beard's disappearance, there was a robbery at an Ord motel, located 1 mile from the Someplace Else Tavern. Law enforcement never found any connection between the robbery and Beard's disappearance. The robbery was committed by Rex White and Glen Hall. The victim was a man from out of town.
White and Hall, accompanied by five acquaintances, including the robbery victim, had been at another bar in town from 3 to 7:30 p.m. on May 31, 1989. The victim was "flashing" around a lot of cash, wanted to have a party in his motel room, and offered White and Hall $100 each if they could "find him a girl." White and Hall went to the Someplace Else Tavern around
Kittinger testified that the day following Beard's disappearance, the crew was at the McCartney jobsite when they saw a marked police car nearby. Oldson's father wondered aloud what the police officer might want, to which Oldson replied, "It's probably something I did."
The day after Beard's disappearance, Oldson went back to the Someplace Else Tavern to confront Whitefoot. Oldson asked Whitefoot why she and the bar owner had reported Beard missing. Oldson reportedly said, "[W]hat's going to happen if her body comes floating down the river, who do you think they're going to blame?... [M]e."
Oldson explained to Whitefoot that he had grabbed Beard and had "ahold of her by her arms out in the alley but she got away." Whitefoot told Oldson that she did not believe him, because Oldson was a tall, muscular man and Beard was a very petite woman. At that point, Oldson left.
On or around June 2, 1989, Oldson was interviewed by Gerald Woodgate, who was the Valley County Sheriff at that time, and John Young, the Ord police chief. Oldson told him that when Oldson and Beard were in the alley, Oldson propositioned Beard for sex. Beard refused Oldson. Oldson said he went to his father's pickup with the intention of leaving. There was no indication by Oldson during this interview that he had grabbed or struggled with Beard.
As Oldson started to leave, he saw Beard go to another truck that had just pulled into the alley. Oldson described the truck as a "custom 150" Ford pickup about 7 years old, but shiny, with fog lights, and "88 county" license plates. Oldson described the driver as having long hair; he could not tell if the driver was male or female. Oldson gave a similar interview to another police officer around that time.
On June 6, 1989, Oldson was interviewed by an investigator for the Nebraska State Patrol. Oldson described that he saw Beard at the bar and asked her if she wanted to "play a little touch and feel outside." She said, no, that she did not think of him "in that way." However, when Oldson continued to ask Beard, she eventually agreed to go outside to "at least talk about it." Oldson reported that it was 7:30 p.m. when he and Beard stepped into the alley.
Oldson reported that he and Beard stood by the passenger side of his father's pickup. He again asked Beard if "she would like to do something." Beard again said that she did not think of him in that way. Oldson became upset and tried to grab Beard by her wrists to pull her into the pickup, but Beard pulled away from him. According to Oldson, Beard never entered the pickup.
Oldson reported that he slid over to the driver's side and began to drive away. As he was leaving, he noticed a dark blue or black Ford pickup pull into the alley. He saw Beard walk over to the pickup and begin talking with the driver. Beard then walked over to the passenger side of the truck and got in. Oldson described the driver of the truck as male, possibly with a mustache, possibly long, blond hair. He did not describe any other occupants.
Oldson reported that he went home and took a bath. He got out of the tub to answer a telephone call from Roger at about 7:45 p.m. After the brief call with Roger about work being done on the McCartney house, Oldson finished his bath. Oldson then gathered up clothes and detergent to go to the Laundromat. When he was on his way to the Laundromat, Oldson ran into his father and Kittinger. Oldson reported that Whitefoot called him later that night.
The state trooper testified that local law enforcement investigated the owners of all vehicles similar to Oldson's description located in county No. 88, or Loup County. All such individuals were ruled out as having any information or involvement in Beard's disappearance.
Three to ten days after Beard's disappearance, a local resident saw Oldson's father's pickup in the driveway with both doors open and the seat completely removed and lying on the ground. A water hose ran to the truck, and a bucket was nearby.
In 1990, an Ord resident observed Oldson with his girlfriend and future wife, Minnie Eggers (Minnie), at the Someplace Else Tavern. She testified that she overheard Oldson tell Minnie that "if she didn't do whatever it was he wanted that he would do the same thing to her that he had done to Cathy." She testified that Minnie seemed scared. Oldson looked around to see if anyone had heard him. Minnie told Oldson that she loved him and would do whatever he wanted.
Ord resident, Barbara Dasher, testified that she and Oldson would often converse at the Someplace Else Tavern. One day while conversing at the bar after Beard's disappearance, Oldson suddenly "look[ed] mean" and said "right in my ear" that "[t]hey'd never be able to find [Beard]." On another occasion, Oldson told Dasher that "Beard was dead and that we'll never see her again" and that "Beard deserved what she got."
Dasher testified that later, after Beard's remains were found, Oldson threatened her. Oldson told her that if she ever "said anything," she "could get the same thing as ... Beard."
Woodgate testified that between December 1989 and September 1990, he had "occasion to come into contact with ... writings of ... Oldson." His agency made copies of those writings, and he verified that nine exhibits, exhibits 263 through 271, were accurate copies, with certain portions redacted. The exhibits will be fully set forth in the analysis section below. They include Oldson's musing: "Maybe the problem has been my making girls too high a priority — and having real problems with accepting rejection. Which may be how all this got started. `Get it any way you can' (?) Doesn't sound like a good attitude. It got me in trouble." They also include Oldson's statement: "I really have no idea about what to do or where to go. My first priority is to get rid of something A.S.A.P.! That is, if I can still find them. The only ... link left between me and...." Another exhibit states that he "must rate C.B. as most gratifying, ... YUH! Go on and gitcha some!"
During cross-examination, the defense elicited testimony from Woodgate that the
Beard's remains were found in April 1992. Most of the remains were found in the alluvial fan of a pasture beyond a fence alongside a minimum maintenance road about 6 miles outside of Ord. Traveling the speed limit from the Someplace Else Tavern to the place where the remains were found takes 9 minutes. Traveling the speed limit from the place the remains were found to Oldson's residence also takes approximately 9 minutes.
A forensic anthropologist specializing in bone trauma testified that Beard's remains indicated perimortem blunt trauma to the chest, face, and skull. In addition, the remains indicated stab wounds in the ribs, the lumbar vertebrae, sacrum, and wrist. These together indicated "foul play and a violent death." While the blunt trauma could be consistent with being struck by either a vehicle or some sort of tool, the stab wounds could not have been caused by a pedestrian-vehicle collision.
A forensic pathologist similarly testified that Beard's death was a homicide and was caused by blunt force trauma to the head and trunk in association with sharp force injuries in the ribs and lumbar. The pathologist testified that when a pedestrian is hit by a moving vehicle, the pedestrian suffers a characteristic basilar fracture of the skull caused when the body lands while in rotation off of the vehicle. Beard did not suffer such a fracture.
A friend of Minnie's testified that when Beard's remains were discovered, Oldson and Minnie suggested they go to the site where the remains were found. Oldson was "driving like he was really anxious and nervous" and was "talking very excitedly" on the way there. The friend did not recall what Oldson said, though. Part of the time, Oldson was speaking with Minnie through sign language, which the friend did not understand.
A journalist interviewed Oldson after Beard's remains were found. Oldson generally denied being responsible for Beard's death. He said he was merely an acquaintance of Beard's. Oldson also claimed to be a virgin until he married Minnie.
Oldson told the journalist that he had tried to get Beard into his father's truck with him the night she disappeared. Oldson said that he had become more desperate as the night went on and that "`[f]inally I just reached the bottom of the barrel, what the hell, we'll try [Beard], and she wouldn't have anything to do with me.'" According to Oldson, she refused him, saying, "`[O]h, John, I like you as a friend but never in that way. No, no, get away. No, no.'" Then Oldson drove off. As he was leaving, Oldson saw Beard get into another truck.
While incarcerated awaiting trial for the murder of Beard, Oldson's conversations
Oldson explained that in May 1989, he had approached the "town floozy" at the "saloon" and said, "Hey baby come on out back." He got into the passenger side of the pickup, sat down, and said, "Come on in here with me and we'll go do something." But Beard told him, "No, I don't like you in that way." Oldson then tried to pull her into the truck. They "scrambled around a little bit," and Beard may have "bumped her head." Beard "managed to jerk herself away."
Oldson said he was embarrassed because the "town floozy" was not interested in him. Upset and angry, and unable to face his coworkers in the bar, he left with the pickup. He went to the jobsite and "did some things." Then he went home, took a bath, and grabbed some laundry. He ran into his father when he was on his way to the Laundromat.
In another conversation, Oldson again wondered what kind of evidence law enforcement might have. Oldson wondered whether law enforcement had found DNA evidence on his "brick hammer," the bumper of the truck, or on a gas can. He explained that his and Beard's DNA "would have mingled." Beard's DNA could have been in the truck and on him, because he had grabbed Beard by the arm and Beard had "struggled back."
The defense emphasized that no physical evidence was found linking Oldson to Beard, despite several searches. Without stating that Oldson was incarcerated at the time, the defense emphasized that when law enforcement executed the search warrant based on Oldson's journal entries, Oldson was "more or less quarantined and had no access to the house or the grounds or the trucks for a nine-month period." Furthermore, during the time the search warrants were sought and executed, Oldson had limited, supervised communication with the house's inhabitants. The defense also pointed out that Oldson indicated in his diary that he knew law enforcement was reading it.
Minnie testified for the defense. She said that there was nothing out of the ordinary in the way Oldson drove out to the site where the remains were found. Further, she did not think that Oldson would have been proficient enough in sign language to carry on a conversation with her at that time. Minnie denied that Oldson ever threatened to do to her what he had done to Beard. She testified that Oldson never made any incriminating statements to her concerning Beard. Minnie testified that Dasher had a reputation in the community for being untruthful.
The defense adduced evidence that it was common for Beard to leave the bar with different men. The defense then presented other likely suspects.
The defense presented the prior statements of former Ord resident, Michael Hawley, deceased at the time of trial. Hawley carried in his wallet a picture from a "dirty magazine" of a woman who looked like Beard. He said he did not like Beard and described her as a thief and a hustler, and he stated she had "narced off"
John Hopkins, deceased at the time of trial, had given a statement to law enforcement that shortly after Beard's disappearance, he had a conversation with White about where Beard might be. Hopkins was White's supervisor on a cement job. White told Hopkins, "`I know where she is. I can show you where she's at.... We skinned her alive and I think she liked it.'" Hopkins reported that White seemed to be telling the truth. Furthermore, Hopkins got the impression from the conversation that Beard was out in the open somewhere.
Hopkins' live-in girlfriend testified that she recalled coming home and finding Hopkins "sobbing." The girlfriend testified over the State's objection that Hopkins was upset because White had told him that White killed Beard. Specifically, White told Hopkins that he skinned Beard and buried her under concrete under a restroom project north of Ord where White was working. She and Hopkins drove to the jobsite and found a bag of lime missing.
In a statement to police, Mel Ellingson, a former boyfriend of Beard's and deceased at the time of trial, reported that Beard once told him that a person by the name of Brian Mentzer was going to kill her and had threatened her once in a bar. Ellingson also recalled Beard's telling him that two "`guys from the carnival'" she was acquainted with had called her because they were going to be visiting. Ellingson said the men drove a green pickup while they were in Ord. Ellingson also said that the owner of the carnival lived in Taylor, Nebraska, and therefore would have "88 county" license plates.
The defense further presented evidence that Beard may have been seen in the days following her disappearance. One witness testified that the night of Beard's disappearance, he saw an unfamiliar man and woman at the convenience store on the highway leading into Burwell, Nebraska, about 17 miles from Ord. The woman was approximately Beard's weight and stature, but had darker hair. She appeared "drunk or doped."
Two other witnesses had reported to law enforcement that on the day after Beard's disappearance, they saw someone who matched the picture and physical description of Beard walk into a cafe in Morrill, Nebraska, which is about 360 miles from Ord. She was carrying a jacket and a military green duffelbag. The bag was "full clear up to the top with clothing or personal items," and she appeared tired.
Ellingson said in a statement to police that he was traveling back to Ord from Valentine, Nebraska, the day after Beard's disappearance. En route, at about 6 p.m., he saw a vehicle traveling in the opposite direction. He was traveling about 60 miles per hour; the other vehicle was traveling about 90 miles per hour. He noticed there were three people in the vehicle and he "`could swear'" that Beard was seated in the middle between the driver and the other occupant. He believed he recognized the vehicle as belonging to a person who had previously lived across from
The defense suggested that Beard had been with Jean Backus and Wetzel Backus after her disappearance and ultimately was murdered by Jean Backus. The Backuses owned 2,300 acres in Garfield County, Nebraska, near Ord.
The defense called the current sheriff for Valley County, who indicated that in March 2012, he came into contact with handwritten pages from a diary. The diary contained information regarding the possible death of a woman by the name of "Kathy" from Ord. The sheriff testified that the diary facially appeared to belong to Jean Backus, who was married at that time to Wetzel Backus.
The diary indicated that "Kathy's" death, as well as the death of three other women, had occurred on the Backus ranch. The sheriff testified that the other women listed in the diary were Sharon Bald Eagle, Karen Weeks, and Jill Dee Cutshall. All these women were known to have disappeared. Bald Eagle disappeared in 1984, and Weeks and Cutshall disappeared in 1987.
The sheriff testified the diary indicated that the Backuses had found Cutshall during a trip to Fremont, Nebraska, walking and without any clothes, and that the Backuses had found Bald Eagle in South Dakota. Bald Eagle had in fact disappeared from a reservation in South Dakota. Cutshall's clothes had been found in a forest.
The diary referred to "Kathy" as missing from Ord in 1989, and the sheriff affirmed that the diary indicated a "local man" was being blamed for "Kathy's" disappearance. Further, the diary indicated the author of the diary had run "Kathy" over with a pickup.
The sheriff testified that he had conducted an investigation into the diary. The sheriff explained that Jean Backus denied writing the diary and had granted law enforcement permission to search the ranch. Law enforcement conducted a thorough search and was unable to find any human remains or other suspicious evidence on the Backus property. The sheriff did not believe the diary to be valid.
Over defense counsel's request to declare him unavailable and utilize only prior statements made to the police, Jerome Walkowiak testified that he was at the Someplace Else Tavern on May 31, 1989, and saw Beard talking with a man with a red beard and other "common-looking guys" with black beards. The man with the red beard had a ponytail and a knife "hanging on his side."
Walkowiak remembered that Oldson and Beard were also talking, and he saw Oldson and Beard go out to the back alley after Oldson went to the restroom. The bearded men had left the Someplace Else Tavern just before that. Walkowiak looked out the back alley and saw a blue, but not dark blue, truck with "88 county" license plates. The same men he saw Beard talking to in the bar were in the pickup. Walkowiak testified that he saw Oldson get into the truck with Beard and the other men.
Defense counsel then confronted Walkowiak with his statement from 1989 wherein he told law enforcement that he saw Oldson walk away and that Oldson did not get into the truck with Beard and the other men. Walkowiak testified that he did not know why he had said that. The defense proceeded to read extensively and repeatedly from Walkowiak's 1989 interview. Walkowiak testified that he did not remember the 1989 interview and that his
The jury returned a verdict of guilty of second degree murder. The court sentenced Oldson to life-to-life imprisonment.
Oldson makes 12 assignments of error. He assigns that the trial court erred (1) by admitting excerpts from Oldson's journals which were inadmissible under Neb. Evid. R. 404, Neb.Rev.Stat. § 27-404 (Cum. Supp. 2014), in violation of his rights to be presumed innocent, due process, and a fair trial; (2) by admitting excerpts from Oldson's journals which were inadmissible under Neb. Evid. R. 403, Neb.Rev.Stat. § 27-403 (Reissue 2008), in violation of his rights to be presumed innocent, due process, and a fair trial; (3) by allowing Oldson's journal excerpts to go back with the jury during deliberations, in violation of his rights to be presumed innocent, due process, and a fair trial; (4) by not admitting the alleged Jean Backus diary at trial, in violation of his rights to present a defense, due process, and a fair trial; (5) by failing to suppress evidence as requested by the defense, in violation of the 4th and 14th Amendments and their Nebraska counterparts; (6) by failing to dismiss the case as a violation of Oldson's right to a speedy trial under the Due Process Clause of the 5th and 14th Amendments and their Nebraska counterparts; (7) by forcing Oldson to choose between effectively cross-examining witnesses and opening the door to highly prejudicial evidence of other bad acts, in violation of Oldson's right to confrontation under the Sixth Amendment and its Nebraska counterpart; (8) by overruling his motion for a new trial, in violation of his rights to present a defense, due process, and to a fair trial; and (9) by giving Oldson a life sentence when the jury found him guilty of a lesser offense. Oldson also asserts that (10) the State's tampering with witnesses Rhonda Donnelson and Walkowiak violated Oldson's rights to a fair trial, to present a defense, and to due process under the 5th, 6th, and 14th Amendments and their Nebraska counterparts; (11) there was insufficient evidence to support the conviction; and (12) his conviction should be reversed on the ground of cumulative error.
We begin our analysis by addressing Oldson's assignment of error that the trial court erred in denying his motion to suppress. Oldson argues that by virtue of omitting exculpatory information, the affidavit in support of the warrant for Oldson's arrest contained deliberately or recklessly false information, in violation of the Fourth Amendment under Franks v. Delaware.
Where there has been a pretrial ruling regarding the admissibility of evidence, a party must make a timely and specific objection to the evidence when it is
We turn next to Oldson's journal excerpts, which are the subject of two assignments of error and the central focus of Oldson's appeal.
Whether evidence is admissible for any proper purpose under the rule governing admissibility of evidence of other crimes, wrongs, or acts rests within the discretion of the trial court.
It is within the discretion of the trial court to determine relevancy and admissibility of evidence of other wrongs or acts under the balancing rule and the other acts rule, and the trial court's decision will not be reversed absent an abuse of discretion.
The defense objected to exhibits 263 through 271 under either rule 403 or rule 404, often both. Oldson makes several unique arguments in this appeal as to the meaning and applicability of those statutes, based on his interpretation of their guiding principles. Before addressing the particular exhibits, therefore, we find it helpful to set forth in detail the guiding principles of rules 403 and 404. We begin with rule 404.
Rule 404, found at § 27-404, codifies the common-law tradition prohibiting "`resort by the prosecution to any kind of evidence of a defendant's evil character to establish a probability of his guilt.'"
Rule 404 thus prohibits the admission of "[e]vidence of a person's character
Though difficult to define, character has been described as the generalized disposition or tendency to act in a particular way in all the varying situations of life, caused by something internal to the actor that arises from that person's moral being.
The second part of the prohibition, to show that "he or she acted in conformity therewith," is to ask the trier of fact to infer what a person did from who that person is.
What the State cannot do through direct testimony of the defendant's character it cannot do indirectly through evidence of the defendant's acts for the purpose of illustrating bad character. The State cannot introduce other acts that are relevant only through the inference that the defendant is "`by propensity a probable perpetrator of the crime.'"
This approach of establishing guilt through other acts is even more egregious than presenting reputation or opinion evidence of the defendant's bad character. The admission of other acts evidence presents a special danger of confusion of the issues and undue prejudice. Not only might the jury infer action based on the defendant's general lawbreaking character, but the jury might subconsciously penalize the defendant for the proven misdeeds.
The prohibition against proving the character of a person in order to show action in conformity therewith — in other words, the use of propensity reasoning — is subject to limited exceptions. Those exceptions are generally favorable to the defendant's use of propensity evidence in his or her defense, while maintaining the prohibition against the prosecution's use of propensity evidence in its case in chief. Rule 404(1)(a) allows the defendant to offer a pertinent trait of his or her character, allowing the prosecution to rebut the same only if the defendant offers such evidence. Rule 404(1)(b) allows the defendant to present evidence of a pertinent character trait of the victim and allows the prosecution to rebut the same only if the defendant presents such evidence.
Under Neb. Evid. R. 405, Neb. Rev.Stat. § 27-405 (Reissue 2008), the manner in which either party can prove character in order to show action in conformity therewith, when allowed, is generally limited to reputation or opinion evidence. In accordance with the special danger that instances of misconduct entails, other prior acts can be introduced to show character in order to show action in conformity therewith only if a trait of character is an essential element of a charge, claim, or defense, or during cross-examination of reputation or opinion testimony.
Evidence of specific instances of conduct that only incidentally impugns a defendant's character is not prohibited by rule 404.
Rule 404(2) thus states that evidence of "other crimes, wrongs, or acts" are admissible for purposes other than "to prove the character of a person in order to show that he or she acted in conformity
Authorities note that uncharged misconduct evidence routinely supports two inferences — one legitimate and one illicit.
As a threshold matter, the evidence of the other act will be admissible only if the trier of fact could reasonably conclude that the act occurred and that the defendant was the actor.
In State v. Sanchez,
And since evidence of other acts submitted for a proper purpose may at the same time lead the jury to infer bad character and employ propensity reasoning, the trial court must, if requested by the defendant,
While, normally, the better practice is for a trial court to instruct the jury regardless of request, so as to ensure the evidence is not used for an improper purpose, the majority view is that the court does not have a duty to present a limiting instruction to the jury sua sponte.
We now turn more briefly to the principles underlying rule 403. All relevant evidence is subject to the overriding protection of rule 403, including other acts evidence. Rule 403 allows the exclusion of evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
Relevant evidence is that which has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
Most, if not all, evidence offered by a party is calculated to be prejudicial to the opposing party.
Applying these principles to the exhibits in question, we begin with exhibit 266.
In exhibit 266, Oldson writes: "Maybe the problem has been my making girls too high a priority — and having real problems with accepting rejection. Which may be how all this got started. `Get it any way you can' (?) Doesn't sound like a good attitude. It got me in trouble."
The theory of logical relevancy propounded by the State and adopted by the trial court was that this entire statement referred to Oldson's murder of Beard and his reason for killing her. The statement tied into other statements by Oldson that Beard had rejected him on the night of her disappearance.
The court concluded that the exhibit was admissible as evidence of motive and consciousness of guilt. In essence, the court found that the jury could reasonably infer from exhibit 266 that Oldson was acknowledging he had gotten himself into "trouble" because he attempted to "`[g]et it any way you can'" when Beard rejected him on the night of her disappearance.
The defense objected to this statement under rules 403 and 404.
The trial court specifically found that exhibit 266 was not evidence of another act under rule 404(2). The court also reasoned, "[t]he State is not offering this to prove [Oldson] has a character trait (problem with accepting rejection) that causes him or has caused him to murder other women" and, further, that the exhibit "does not indicate or imply that [Oldson] kills women who reject him."
In consideration of the proper purpose for which the court admitted the statement that Oldson had "problems with accepting rejection," the trial court sua sponte instructed the jury to limit its consideration of exhibit 266. The court orally instructed: "You have seen this evidence for a specific limited purpose. This evidence is being offered for the limited purpose to help you decide motive for the crime [Oldson] is currently charged with. You must consider this evidence only for this limited purpose."
We agree with Oldson that the obtuse style of Oldson's journal writing somewhat lessened the probative value of the journal excerpts.
The probative value of exhibit 266 depended upon the determination that Oldson
The trial court's gatekeeping function was limited to determining whether the jury could reasonably find that conditioning fact by a preponderance of the evidence.
As will be explained below, we find these other journal excerpts admissible in their own right and supportive of the reasonable inference that Oldson was referring in those excerpts to Beard. Viewing the exhibits together, the jury could reasonably infer that when Oldson referred in exhibit 266 to "trouble" and "how all this got started," he was referring, in a purposefully vague way, to the anticipated charges against him for the disappearance of Beard.
Oldson argues that the excerpts were unfairly prejudicial because they were taken from the journal out of context. We disagree. If the defense truly thought these excerpts were unfairly taken from the entire journal in a way that was misleading, the defense could have sought admission of other diary excerpts under the rule of completeness.
Neither was there a so-called Hobson's choice that rendered exhibit 266 inadmissible. The defense was free to present to the jury the contextual evidence that Oldson was incarcerated for the attempted assault of another woman at the time he wrote this journal entry.
Hobson's choice traditionally means no real choice at all — a choice of taking what is available or nothing at all.
Oldson presents no legal authority for this Hobson's choice claim. Oldson tries to incorporate rule 404 into his Hobson's choice argument, but rule 404 does not address the admissibility of evidence based on potential avenues of cross-examination. Furthermore, the logical relevance of any elicitation during cross-examination of the context of the writings would be independent of propensity and accordingly not prohibited under rule 404.
Admittedly, it might be a tough choice between standing silent and presenting evidence that Oldson was referring to an unrelated attempted assault conviction. But tough choices are not uncommon in trials. Hobson's choice arguments such as presented here are rarely found in case law. To the extent such arguments have been raised in similar contexts, most courts have rejected them.
For example, most courts reject "Catch 22" reasoning when considering whether the State can introduce escape as evidence of consciousness of guilt, when it is factually unclear whether the defendant was escaping from the crime he was being tried for or from other charges relating to other bad acts.
We are similarly unpersuaded here that the evidence may be rendered inadmissible because it presents a difficult strategic decision due to the defendant's criminal history. We find no legally supportable reason why Oldson's Hobson's choice meant the State could not admit exhibit 266 into evidence for the jury's consideration.
Oldson also argues that exhibit 266 was inadmissible because the statement that he had problems accepting rejection was "pure" character evidence, which he asserts is inadmissible under rule 404(1) under any circumstances.
In arguing that there is a "pure" character statement rendering exhibit 266 inadmissible, Oldson focuses solely on the phrase, "having real problems with accepting rejection," abstracted from the references to "how all this got started" and "[i]t got me in trouble." Oldson thus extracts this one phrase from any context that it referred to Oldson's actions with Beard on the night of her disappearance and his motive for those actions. We find this extraction approach to a single phrase in exhibit 266 unfounded.
In any event, we find no merit to Oldson's "pure" character arguments as they pertain to this statement. First and most fundamentally, we do not consider that "having real problems with accepting rejection" is a character trait as contemplated by rule 404. It is not a generalized disposition or tendency to act in a particular way in all the varying situations of life, arising from that person's moral being.
Even if "having real problems with accepting rejection" were reflective of a character trait, it would not thereby be rendered inadmissible. Exhibit 266 was found by the court to be admissible for the limited purpose of showing Oldson's motive for killing Beard. We have explained that motive is the specific state of mind that leads or tempts a person to indulge in a specific criminal act.
Oldson asserts that because his journal entry is worded in a generalized and obscure fashion, it is "pure" character evidence and is inadmissible even for a proper purpose. Oldson argues that character demonstrated by anything besides other acts can never be admissible for a proper purpose.
We find no merit to this argument. If character evidence is admitted for a proper purpose, then, ipso facto, it is not admitted for the purpose of showing propensity. As such, it does not fall under the general, two-part prohibition found in rule 404(1), that evidence of a person's character or a trait of his or her character is inadmissible for the purpose of proving that he or she acted in conformity therewith.
And Oldson's underlying premise that there ought to be a distinction between when evidence is admissible for a proper purpose based on the form of the proof is inconsistent with the underlying policies of rule 404, which recognize the special danger of other acts evidence. As we have already discussed, indirect evidence of bad character through bad acts is even more harmful than direct opinion or reputation evidence of bad character, because the jury might subconsciously punish the defendant for the prior bad acts, in addition to his or her bad character.
Admittedly, we find it hard to imagine circumstances where a more traditional notion of a character trait — a generalized characteristic with moral connotations, such as being a violent or dishonest person —
To the extent that character under rule 404 could be seen as encompassing more particular thoughts or feelings, courts generally reject the argument that character can never be admitted for a proper purpose.
Most apposite to the case at hand, courts have found that a defendant's self-reflective statements indicating motive or state of mind for the crime he or she is being charged with are admissible for a proper purpose, especially if made in the context of an admission or statement against interest.
Exhibit 266 was not rendered inadmissible by virtue of being "pure" character evidence.
It is unclear what prejudicial inferences could be made from the phrase "having real problems with accepting rejection" outside of the inference that this statement referred particularly to Beard. That inference is not "unfair." In other words, to the extent Oldson's concern really is that the State is trying to obtain a conviction through a prohibited character attack, then we cannot fathom what bad character trait leading to a conviction could be derived from this so-called pure character statement. Many people dislike rejection. There is no inherent propensity inference that people who have problems with accepting rejection are violent to those who reject them.
Balancing the probative value of evidence against the danger of unfair prejudice is within the discretion of the trial court, whose decision we will not reverse unless there is an abuse of discretion.
We turn next to exhibit 270.
Oldson states:
Defense counsel argued that the exhibit was inadmissible in its entirety. The defense objected at trial to exhibit 270 under rules 403 and 404(1) and (2). The defense resisted any compromise that would strike portions of this excerpt.
In allowing exhibit 270 into evidence, the trial court implicitly determined that exhibit 270 supported the reasonable inference that Oldson had sexual contact with Beard on the night of her disappearance. The court also specifically stated that exhibit 270 was relevant to "disprove an exculpatory statement made by [Oldson] that he did not have sex until he was married and/or that he did not have sex with ... Beard."
The court did not specifically instruct the jury as to exhibit 270, but generally instructed, sua sponte, as to all the journal excerpts as follows:
Oldson makes several disparate arguments on appeal concerning exhibit 270. First, Oldson argues that the sentence referring to Oldson's affinity for the midriff area is, similarly to the "having real problems with accepting rejection," inadmissible "pure" character evidence. Oldson claims that the sentence indicates a "stomach fetish" and that the State was attempting to influence the jury to convict Oldson because of his "creepy" sexual interests.
Second, Oldson argues that it was improper for the State to introduce this excerpt for "impeachment" purposes when the inconsistent statements Oldson made indicating he was a virgin and that he had no sexual relationship with Beard were introduced by the State, not by Oldson.
Third, Oldson argues that in order for the diary excerpt to be relevant for any proper purpose, the State needed to prove by clear and convincing evidence that sexual "acts" with all the women listed actually occurred.
Fourth, and apparently alternative to his third argument, Oldson asserts that the excerpt is ambiguous — that the list of names might refer "merely to fantasies" instead of actual acts.
Finally, Oldson generally argues that any probative value of exhibit 270 was outweighed by its unfair prejudice and its tendency to confuse and mislead the jury.
We agree with the trial court that exhibit 270 was relevant insofar as it supported the reasonable inference that Oldson had sexual contact with Beard. Evidence that Oldson had sexual contact with Beard was circumstantial evidence of his guilt because Oldson had stated he was a virgin, Oldson and Beard had apparently not had a sexual relationship prior to her disappearance, and Oldson said that Beard rejected Oldson's sexual advances on the night of her disappearance.
In other words, if Oldson had sexual contact with Beard, then at least some of his prior exculpatory statements about his relationship with Beard and the events of the night of her disappearance were false. Prior false exculpatory statements are probative of the defendant's consciousness of guilt.
Evidence supporting the reasonable inference that Oldson had sexual contact with Beard on the night of her disappearance does not present a rule 404 issue, because it does not concern "other" acts. Rather, it concerns an act intrinsic to the crime. The State's theory of the case was that Oldson killed Beard in the course of a sexual assault. That the jury did not ultimately convict on that concurrent assault charge does not retrospectively change the nature of the evidence to be of "other acts."
The trial court explicitly stated that exhibit 270 was not to show that Oldson had sexual contact with the other women listed. The relevancy of this list of names, as the State pointed out, was to support the inference that "C.B." referred to Beard.
In a list of names, "C.B." is the only person referred to solely by two initials. In his brief on appeal, even Oldson recognizes that "the entire list is needed to demonstrate that Oldson is referring to... Beard."
Oldson's argument that the other women listed could have been mere fantasies does nothing to further the argument that the list of women somehow fell under rule 404. Such a possibility likewise does not undermine the logical relevance of the list of women. In other words, it would not follow that because Oldson's sexual "experiences" with the other women listed were fantasies, the "most gratifying" "experience" with "C.B." was also a fantasy.
We have already rejected Oldson's Hobson's choice arguments and find them no more persuasive in the context of exhibit 270.
We find it pertinent that the court specifically instructed the jury with regard to the diary excerpts that it was to focus on the limited purposes of the nature and extent of any relationship Oldson had with Beard and the credibility of Oldson's prior statements. While it may have been appropriate to give the jury a more specific limiting instruction for exhibit 270, defense counsel did not request any such limiting instruction. Thus, the defense has waived any error in the failure to give one.
Because the relevancy of the references to other women did not depend on the occurrence of any actual sexual acts with those women, there was nothing that needed to be proved under rule 404(3) by clear and convincing evidence.
Any unfair prejudice from other acts inferences that the jury could have derived as to the other women listed would be minimal. When the evidence merely implies uncharged misconduct, courts tend to find any error in admitting the evidence to be harmless.
Turning our attention to the first sentence of exhibit 270, we are generally unconvinced by Oldson's characterization of exhibit 270 as "character evidence" of a "creepy" "stomach fetish."
To begin with, Oldson's perspective on this sentence seems clouded by a plethora of evidence and a theory of the prosecution that was never presented to the jury. Although the State sought to introduce evidence that Oldson had a fetish that involved cutting the abdomen area and that Beard's abdomen had been cut in the course of her murder, it was not allowed to do so. Such evidence, had it been presented, would have portrayed Oldson's midriff affinity in a darker light.
But the only evidence presented to the jury even remotely touching upon Oldson's sexual preferences was the first sentence of exhibit 270: "Love that gut, tummy, belly, abdomen, stomach, midriff, middle, torso, etc." The jury was presented with absolutely no evidence that such an affinity for the midriff area was connected with violence, or that Beard's murder involved her midriff area.
Reference to a female body part simply clarified the sexual nature of the other sentences. This illustrated that the "experiences" Oldson referred to throughout the excerpt were sexual experiences, either real or imagined. As even defense counsel noted, "[Y]ou can't understand what this means without seeing the stomach issues and talking about the sexual interests."
This brings us to another point. If the defense was particularly concerned about references to the midriff area, it could have sought a compromise whereby that sentence was stricken and substituted with a more general explanation of context. Instead, defense counsel pursued a scorched earth policy. We will not allow defendants to gain an advantage on appeal by failing to pursue strategies at trial to minimize prejudice.
We have already rejected Oldson's arguments pertaining to so-called pure character statements when used for nonpropensity purposes. The logical relevancy of Oldson's affinity toward midriffs did not depend upon propensity reasoning. And
Whether Oldson was referring to Beard and a sexual experience with Beard the night of her disappearance was for the jury to decide, and the inferences that might follow from such determination would not be unfairly prejudicial. Balanced against this probative nature of exhibit 270 was the possible inference of promiscuity, an affinity for midriffs, and the extremely remote inference of incest that defense counsel arguably waived by failing to ask the court to strike one name from the list of names in the excerpt. The trial court did not abuse its discretion in its exercise of its gatekeeping function by determining that the probative value of exhibit 270 outweighed the danger of unfair prejudice.
Finally, we find no merit to Oldson's argument that the admission of exhibit 270 was improper because its relevance depended in part upon Oldson's previous statements, introduced by the State, which indicated that he did not have sexual contact with Beard. The case law Oldson relies on does not stand for the proposition he propounds. We have said that impeachment may not be utilized as an artifice for the purpose of putting before the jury substantive evidence that is otherwise inadmissible.
The remaining excerpts from Oldson's journal concern Oldson's apparent reflections on being a suspect in police investigations of Beard's disappearance, and we address them together.
In exhibit 263, Oldson writes: "I guess the whole import of this thing with the `missing one' has not hit home, yet. But it should, as they are now looking for charges. If they do prefer charges, well —? I don't see how they can hang me for anything."
In exhibit 265, he writes: "Well, it looks as if this foolishness about the missing doo-doo has reached a point where the end is in sight. That's good. I like it — perhaps now I can ease my mind."
In exhibit 267, Oldson writes:
In exhibit 268, Oldson writes: "Well, there it is. What's next, I wonder? It's gettin' closer — and G.S. and the Fried Eggplant gang aren't movin' — although they still could, conceivably. How, I don't know — in fact, [illegible] wonder if there is any way he could even manufacture something? I doubt it."
Finally, in exhibit 269, Oldson writes:
For the most part, Oldson argues only that these exhibits were inadmissible under rule 403. Oldson argues that these excerpts have limited probative value due to their ambiguity. Oldson claims this ambiguity is due, in part, to the excerpts' being taken out of context. Oldson asserts that the exhibits' limited probative value must be balanced against the unfair prejudice of the Hobson's choice Oldson was faced with in deciding whether to give the excerpts more proper context for the jury.
We have already discussed at length the Hobson's choice theory formulated by Oldson in this appeal, and we find no merit to it. Moreover, we find no basis for concluding that the excerpts have been manipulated into a disingenuous light by being taken out of the overall context of the journal.
Specifically, our reading of the exhibits in the context of the entirety of the journal supports the inference that Oldson was referring in these exhibits to Beard and not to the crime for which he was incarcerated at the time the diary was written or for some other crime for which he was under investigation. Surrounding these excerpts, Oldson repeatedly expressed his frustration that he was not allowed a work release. He mentions Beard by name, stating that the Valley County Attorney was "so obsessed with Beard." It appears Oldson thought he was not getting a work release because the county attorney and other law enforcement, which he called the "Fried Eggplant gang," considered him the primary suspect in Beard's disappearance. As Oldson approached his release date, he expressed concern that law enforcement did not want to let him out of jail and that he would have to come back.
Although Oldson points out that when he wrote about getting rid of something "A.S.A.P.," he was incarcerated and therefore could not have access to whatever thing he wished to get rid of, he was approximately 2 months from release. The surrounding context of that excerpt indicates Oldson was writing about his plans upon release.
We reject any suggestion by Oldson that writing one's future intention to destroy evidence is evidence of other acts within the purview of rule 404. The writing, stating an intention to get rid of evidence, was not itself a legally cognizable act. Moreover, we have said that destruction of evidence of the crime charged is
We agree with Oldson that many of these exhibits are "barely inculpatory."
As Oldson points out, exhibits 268 and 269 are largely exculpatory. Oldson opines in exhibits 268 and 269 that the only way law enforcement could bring charges against him is if it manufactured evidence. But, for the most part, we disagree with Oldson's characterization of the exhibits as painting Oldson to be a "strange and obnoxious" character.
In exhibits 269 and 271, Oldson admittedly expresses some unseemly disdain for law enforcement. But balanced against the prejudicial nature of the expressions of disrespect for law enforcement, exhibits 269 and 271 are probative of Oldson's guilt. The jury could reasonably infer from exhibit 269 that Oldson thought he would "get away," because law enforcement was going to make mistakes. The jury could reasonably infer from exhibit 271 that law enforcement would not find any incriminating evidence, because Oldson had particular knowledge about the evidence.
The oblique nature of Oldson's references to Beard in exhibits 263, 264, 265, and 267 or evidence relating to her disappearance — "the `missing one,'" "certain things," "the missing doo-doo," and Oldson's stating he needed to "get rid of something A.S.A.P." — are even more probative and less "unfairly" prejudicial. These excerpts support the inference of a guilty conscience. "`No one doubts that the state of mind which we call "guilty consciousness" is perhaps the strongest evidence... that the person is indeed the guilty doer; nothing but an hallucination or a most extraordinary mistake will otherwise explain its presence.'"
Consciousness of guilt may generally be inferred from the intent of or an attempt by the accused to conceal, alter, or remove evidence of the crime. In this case, consciousness of guilt could be inferred from Oldson's reference to a need to "get rid of something A.S.A.P."
The court did not abuse its discretion in finding exhibits 263, 264, 265, 267, 268, 269, and 271 admissible under rule 403.
Oldson's last argument and assignment of error pertaining to all the journal excerpts is that the court erred in allowing them in the jury room during
Oldson's journal was neither an examination nor a preparation for use at trial. It was not introduced as a substitute for live testimony. We decline Oldson's invitation to reconsider our opinion in Vandever. Therefore, we conclude that the trial court did not abuse its discretion in allowing exhibits 263 through 271 to go back to the jury room like any other exhibit entered into evidence during trial.
Oldson next makes several arguments pertaining to witnesses Dasher and Kittinger, asserting that the admission of their testimony presented a different kind of Hobson's choice: one that violated his right to confrontation and the presumption of innocence.
Dasher testified at trial that both Oldson and Oldson's father had threatened her in order to prevent her from reporting the comments Oldson had made to her concerning Beard. When Dasher testified that Oldson's father had threatened her, the defense moved for a mistrial. The defense argued that the fact that Dasher was mentioning the threat by Oldson's father for the first time at trial indicated her credibility was questionable. The defense then argued it was not in a position to attack Dasher's credibility in the way it fully merited "because of the 404 issues."
The defense elaborated outside the presence of the jury that according to past statements, Dasher had heard Oldson also threaten his sister. The defense claimed that Dasher was making things up and that the defense was unable to properly cross-examine Dasher without presenting prior bad acts to the jury concerning Oldson's relationship with his sister. The defense also noted that Dasher had previously made allegations against Oldson that were never pursued by law enforcement or corroborated, but it did not want to present those accusations to the jury.
The court overruled the motion for mistrial. When Dasher continued to testify that she did not report Oldson's statement to law enforcement right away because she did not think Oldson was guilty, the defense again moved for a mistrial, arguing that the line of questioning was "walking down a path or expecting her to say ... I didn't say it because I was scared of him which are 404 issues." The second motion for mistrial was overruled. Little testimony was elicited from Dasher afterward.
Subsequently, a hearing was held for purposes of creating a record for appellate review on the motion for mistrial. The defense entered into evidence investigative reports of interviews which the defense argued demonstrated Dasher's inconsistent statements and lack of truthfulness. The reports generally describe transgressions
The defense had moved in limine to exclude Kittinger's testimony reporting that the day after Beard's disappearance, when a law enforcement vehicle approached, Oldson said law enforcement was probably looking for him. As relevant here, the defense objected on the ground that Kittinger's testimony presented a Hobson's choice, wherein the defense would be unable to effectively cross-examine Kittinger without opening the door to inadmissible prior bad acts, in violation of rule 404(2). In this regard, the defense explained that in a prior statement to law enforcement, Oldson's father, deceased, said that the statement Kittinger referred to had really occurred after a different incident in November 1989, for which Oldson was ultimately incarcerated in 1990.
Defense counsel was allowed to question Kittinger, under oath, outside the presence of the jury. But the defense did not question Kittinger about whether Oldson's statement could have been made at a later date, sometime in November 1989. The court overruled the motion in limine.
A trial court has the discretion to determine the relevancy and admissibility of evidence, and such determinations will not be disturbed on appeal unless they constitute an abuse of that discretion.
Oldson argues broadly that the admission of the testimony of Dasher and Kittinger violated his right to confrontation and the presumption of innocence by placing him in a Hobson's choice. Oldson claims both witnesses were actually recalling unrelated other acts. He argues that, at the very least, this Hobson's choice rendered the testimony of these witnesses more prejudicial than probative under rule 403. He does not argue specifically that the court erred in denying his motion for mistrial on these grounds. Thus, we consider these arguments in the context of the admissibility of Dasher's and Kittinger's testimony, and whether the trial court abused its discretion in allowing those witnesses to testify.
An accused's constitutional right of confrontation is violated when either (1) he or she is absolutely prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness or (2) a reasonable jury would have received a significantly different impression of the witnesses' credibility had counsel been permitted to pursue his or her proposed line of cross-examination.
Under the presumption of innocence, the State must establish guilt solely through the probative evidence introduced at trial.
While rule 404 may prevent the admission of other acts evidence for propensity purposes as a protection of the presumption of innocence,
We turn next to Oldson's argument that, in violation of due process principles concerning the right to present a complete defense, the police tampered with witnesses Donnelson and Walkowiak. With regard to Donnelson, the defense moved in limine to exclude her testimony. And, although the motion was overruled, she was not called as a witness by the State. The defense did not articulate at trial a due process, witness tampering claim outside of the motion to exclude Donnelson's testimony. We conclude that the defense has presented no cognizable assignment of error concerning any alleged witness tampering of Donnelson that was preserved below. Therefore, we address only the allegations regarding Walkowiak.
The defense moved in limine to prevent "any law enforcement officer to testify in any manner to rebut ... Walkowiak's past recollection recorded using any information that was obtained from an interview that law enforcement conducted on August 24, 2011." The court granted the motion. The court found that a significant number of the 2011 statements were obtained in an "unfair manner," as they were based on questions that misrepresented facts and confused the witness.
Defense counsel asked the court, further, to declare Walkowiak incompetent to testify and unavailable, so that rather than allowing Walkowiak to testify at trial, the defense could simply publish to the jury a statement Walkowiak made to law enforcement in 1989. The defense argued that Walkowiak's recollection was irreparably confused by the 2011 interview and that the only reliable evidence as to what Walkowiak witnessed on the night of Beard's disappearance was what he had said in the 1989 interview. The court overruled the defense's motion to declare Walkowiak unavailable.
In a 1989 statement to law enforcement, Walkowiak said that he looked out the window of the back door to the alley after Oldson and Beard walked out. He witnessed Beard get into a medium-blue Ford pickup truck with "88 county" license plates. He said there were two men in the truck. The driver had a red beard and a ponytail, and the other man had a black beard and black hair. Oldson was still standing in the alley, and Walkowiak saw Oldson walk away.
Law enforcement interviewed Walkowiak multiple times after the 1989 interview. These other interviews were apparently conducted in 1990, 1992, and 2010 and are not in the record.
At a hearing outside the presence of the jury, Walkowiak testified that when interviewed more recently in 2011, law enforcement told him there was no window in the back door at the Someplace Else Tavern. Walkowiak said when he insisted that he must have opened the door, the officer became upset and threatened to throw him in jail.
Walkowiak testified that he still vaguely remembered some parts of what had occurred on May 31, 1989. He was presented with the 1989 interview to refresh his recollection. Walkowiak testified that he remembered Beard voluntarily crawled into a blue truck with "88 county" plates. The driver had a red beard and carried a "big knife on his side." Walkowiak testified that he saw Oldson climb into the truck with Beard and the red-bearded man.
A full transcript of the 2011 interview was entered into evidence for purposes of the hearing. In the beginning of the interview, Walkowiak testified that he saw Beard leave with Oldson out the back door into the alley. He said he did not see Oldson or Beard after that. The door to the alley, Walkowiak said, was solid; there was no window in it. When thereafter confronted with his 1989 interview, Walkowiak recalled that there was a window in the door to the alley and that he had watched Beard climb into a pickup with a man with a red beard.
When, moments later, law enforcement assured Walkowiak that he had nothing to fear from Oldson anymore, Walkowiak said he did not see anything after Beard and Oldson left through the back door of the Someplace Else Tavern. When law enforcement officers pressed Walkowiak to tell him who had him make up the story about the "88 county" truck, Walkowiak denied that anyone had told him to tell the story. He could not recall why he had told that story before. Then Walkowiak said that sometimes he thought the red-bearded man story was the truth and that sometimes he thought it was not.
The officers tried to focus Walkowiak's attention on getting justice for Beard and closure for Beard's sister. The officers emphasized that they knew Walkowiak was not involved in Beard's disappearance but that they needed him to tell the truth. At some later point in the interview, as tensions rose, an officer suggested that there was no window in the back door of the bar, so the statement in 1989 could not be accurate. Walkowiak said he simply did not remember giving the statement in 1989.
Shortly after that, however, upon the law enforcement officers' suggestions, Walkowiak confirmed he probably had just heard the story around town and repeated it. Five minutes later, Walkowiak said that that was a lie; he did not hear the story from anybody. When one of the officers eventually pointed out that they were "just going in a big circle," Walkowiak responded, "Yeah, I know it. I wish I could get off the circle. I don't want to be in no circle anymore." When asked by law enforcement what they were supposed to think, Walkowiak responded, "That I'm a confused person on this."
As set forth in the background section, Walkowiak testified before the jury that he was at the Someplace Else Tavern on May 31, 1989, and saw Beard talking with a man with a red beard and other "[c]ommon-looking guys" with black beards. The man with the red beard had a ponytail and a knife "hanging on his side." Walkowiak also saw Oldson and Beard talking and go out together to the back alley. The bearded men had left the Someplace Else Tavern just prior to that. Walkowiak looked out the back alley and saw a blue truck with "88 county" license plates. The same men he saw Beard talking to in the bar were in the pickup. It seemed like an "awful crowded pickup." Walkowiak testified that he saw Oldson get into the truck with Beard and the other men.
Defense counsel confronted Walkowiak with his statement from 1989 wherein he said that Oldson had walked away and did not go into the truck. Walkowiak testified that he did not know why he had said that. The defense proceeded to read extensively and repeatedly from Walkowiak's 1989 interview. Walkowiak testified that he did not remember the 1989 interview and that his memory of the night of May 31, 1989, was better now than it was then.
It is within the discretion of the trial court to determine whether the unavailability of a witness under Neb. Evid. R. 804, Neb.Rev.Stat. § 27-804 (Reissue 2008), has been shown.
It is not entirely clear what precise error Oldson asserts the trial court made. Oldson was denied his request to have Walkowiak declared unavailable so that Oldson could submit to the jury only prior police reports in which he said he saw Beard leave with other men on the night of her disappearance. Oldson sought to avoid the jury's learning of Walkowiak's more recent recollection that Oldson
Oldson's argument that Walkowiak was unavailable — despite his presence, willingness to testify, and affirmation that he recalled the events of the evening in question — was based loosely on accusations that the police had deliberately confused Walkowiak during questioning in order to turn what were once exculpatory accounts into inculpatory ones. Rule 804 sets forth the examples of witness unavailability. The most pertinent provisions are in rule 804(1)(c) and (d): "(c) Testifies to lack of memory of the subject matter of his statement; or (d) Is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity." Rule 804 also generally provides: "A declarant is not unavailable as a witness if his exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of his statement for the purpose of preventing the witness from attending or testifying."
Oldson does not rely on rule 804, however. He relies on broad due process propositions to argue Walkowiak was unavailable. He points out that whether rooted directly in the Due Process Clause of the 14th Amendment or in the Compulsory Process or Confrontation Clause of the 6th Amendment, the federal Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense.
The right to present a defense is not unqualified and is subject to countervailing public interests such as preventing perjury and investigating criminal conduct.
Webb v. Texas
The U.S. Supreme Court reasoned that in light of the great disparity between the posture of the presiding judge and that of the witness, and the unnecessarily strong terms used, the judge "could well have exerted such duress on the witness' mind as to preclude him from making a free and voluntary choice whether or not to testify."
We similarly held in State v. Ammons,
Oldson argues that the police, during the 2011 interview, acted on behalf of the State in intimidating Walkowiak into changing his eyewitness report. But even in the context of confessions by an accused, lying, good cop/bad cop, and other tactics designed to play on the interrogee's sense of responsibility or guilt have been held under the circumstances not to violate due process. For example, the U.S. Supreme Court, in Frazier v. Cupp,
We have rejected in several cases the assertion that police imposition of psychological pressure rendered a defendant's confession involuntary under the circumstances presented.
The Second Circuit describes three basic elements of any claim under the right to present a defense: (1) deprivation of material and exculpatory evidence that could not reasonably be obtained by other means, (2) bad faith or misconduct on the part of the government, and (3) that the absence of fundamental fairness infected the trial and prevented a fair trial.
Assuming without deciding that due process could mandate witness unavailability because of intimidating or deceptive police questioning, the defense has failed to demonstrate a due process violation. The defense did not call the interviewing officers to testify at the hearings on the motions in limine or the motion to declare Walkowiak unavailable. And there is little to suggest from the 2011 interview itself that the officers acted in bad faith when interviewing Walkowiak. Oldson claims law enforcement confused Walkowiak into believing there was no window in the door, but Walkowiak himself began his 2011 interview saying that there was no window in the door and that he did not see Beard or Oldson after they walked to the alley. It is not even clear that the officer who later pressed upon Walkowiak that there was no window in the door in 1989 knew that statement to be false; there was no longer a window in that door at the time of questioning. And regardless, lying and emotional manipulation are usually insufficient to violate due process.
We find no merit to Oldson's assignment of error concerning the alleged tampering with Walkowiak.
We turn next to Oldson's speedy trial arguments.
The allegation that the State violated Oldson's constitutional right to a speedy trial formed the basis of both Oldson's plea in abatement and motion for new trial, which were both overruled by the trial court. Oldson asserted that the State deliberately delayed for purposes of obtaining a tactical advantage and that this was evidenced by the fact that there was no evidence submitted at trial that was not available in the early 1990's. The State pointed out that there was no intended or actual advantage from the delay and that the State had attempted to be exceptionally accommodating with regard to the defense's use of residual hearsay. The record is unclear as to why the delay in prosecution occurred.
A criminal defendant's claim of denial of due process resulting from preindictment delay presents a mixed question of law and fact.
The Fifth Amendment's Due Process Clause has only a "`limited role to play in protecting against oppressive delay'" in the criminal context.
Thus, the Due Process Clause requires dismissal only if a defendant can prove that the preindictment delay caused actual prejudice to his or her defense and was a deliberate action by the State designed to gain a tactical advantage.
Oldson argues that the State waited and reinterviewed witnesses until their memories improved to the advantage of the State. He generally asserts that evolving town gossip turned against Oldson as the subsequent assault conviction became known and that this also affected witnesses' memories.
Oldson illustrates that one witness, a local resident, did not mention seeing the Oldson family truck's being cleaned shortly after Beard's disappearance until his third statement to police in October 1992. Oldson also illustrates Donnelson's and Walkowiak's changing reports. Oldson generally asserts that nearly every favorable witness has died during the State's delay, but he does not illustrate which favorable witnesses he might be referring to.
The reason for the delay in bringing the indictment is less obvious here than it was in a similar case of State v. Watson,
It is the defendant's burden to prove both bad faith on the part of the government in intentionally delaying prosecution in order to gain a tactical advantage and substantial actual prejudice resulting from the delay. This burden in not sustained through speculation over what witnesses' memories would otherwise be or through the defense's inability to "imagine" any explanation for the delay other than intentional calculation.
Next, Oldson assigns as error the trial court's refusal to admit into evidence photocopies of a diary that Oldson claims was written by Jean Backus (hereinafter Backus).
As previously described, the defense was able to adduce at trial testimony that a diary had been found and that the diary was purportedly authored by Backus. The defense was also able to adduce testimony detailing the events described in the diary, such as the abduction and sexual abuse of the missing women and the killing of "Kathy" from Ord. And the defense adduced evidence that the diary's description of the missing women was somewhat consistent with real events.
But the defense was unable to enter the diary pages themselves into evidence. After a separate hearing, the court had sustained the State's objection to the admission of the diary pages on the ground of lack of authenticity. The court explained that there was insufficient evidence to support a finding that the writing was what Oldson purported it to be.
The parties had stipulated at the hearing that the purported diary pages were mailed from an unknown address in Omaha, Nebraska, to Oldson's home address while he was awaiting trial. The mailing envelope was handwritten in print and indicated it was from "Lonnie," with no return address. Inside were 54 pages of handwritten entries by an unnamed authorship, which appeared to have been torn from a bound diary, and are contained in the record pursuant to Oldson's offer of proof.
The defense submitted Backus' deposition testimony at the hearing. Backus was 88 years old at the time of her deposition. Backus testified that she never kept a diary or journal. She did not recognize the leather diary cover or the diary pages presented to her. She did not recognize the handwriting of the inscription or the diary pages.
Although defense counsel obtained several exemplars of Backus' handwriting during the deposition, no handwriting analysis was conducted. Nor did defense counsel argue at the hearing that a jury might find, pursuant to Neb.Rev.Stat. § 25-1220 (Reissue 2008), that the diary was written in Backus' handwriting.
Facially, the handwriting on the envelope seems to match to a handwritten inscription on what was purportedly the inside of the diary's cover. Although it is not entirely clear from the record where the diary cover was found, the exhibit is a photograph of a leather-bound diary with
A person of some acquaintance with Backus, Douglas Olson (Douglas), was suspected by all parties of having mailed the diary pages to Oldson. Backus testified in her deposition that Douglas worked at a sale barn in O'Neill, Nebraska, where she sold her cattle. Sometimes, Douglas would work for her at the ranch hauling and vaccinating her cattle.
Defense counsel's private investigator testified at the hearing that Katie Bowers, Douglas' former live-in girlfriend, had found that Douglas possessed three boxes of information that appeared to pertain to Backus, including Backus' mail. Bowers had turned these items over to law enforcement, and a private investigator had gained access to them. In addition, Bowers had directly given the private investigator other writings that Douglas had sent her since she had turned over the boxes to law enforcement. Bowers worked at the veterinary clinic where Backus brought her animals. Bowers had a protection order against Douglas.
The private investigator testified that as of the time of the hearing, he had been unable to locate Douglas. Douglas' last known residences were a halfway house in Omaha and, prior to that, the Regional Center in Norfolk, Nebraska.
In support of the authenticity of the diary pages, the defense presented copies of several letters apparently either sent by Douglas to Bowers or found in the boxes of Backus-related items kept by Douglas in Bowers' house. These included several typed letters from an unnamed author to Bowers and sent in a handwritten envelope to her, in handwriting facially similar to that of the envelope in which the diary pages had been mailed to Oldson and similar to the diary cover inscription.
The letters themselves are largely incomprehensible. They seem to refer to a conspiracy, with the ultimate end of Backus' keeping the ranch and other parties' gaining money. The letters also refer to a man being held for several weeks, drugged, in Douglas' basement and Douglas' attempts to free him. There is no reference in these letters to a diary or to kidnapped women kept at the Backus ranch.
The private investigator also obtained a handwritten letter that was in the possession of the owners of the O'Neill sale barn where Douglas had worked. The letter, offered for purposes of the hearing, had been addressed to Douglas and had been sent to the sale barn. It purported to threaten Douglas and made reference to having "her diary," that "Jean will lose her ranch," and that Douglas should "[k]eep [his] mouth shut or [he] could wind up sleeping with the others."
Another letter sent to Bowers in 2011 — in an envelope with writing similar to the one in which the diary pages were sent to Oldson — contained a handwritten note: "KATE THEY DONT KNOW I MADE COPIES." The note appears to be in the same distinctive handwriting as the mailing envelopes and the diary inscription. An attached map, in what appears to be the same handwriting, is written on the back of a 2010 correspondence to Backus from her optometrist. The map refers to a gun, Backus, and "BURN THIS WHEN DONE." A typed letter from "Marie" to "JORGE," and contained in the same envelope, referred to the directions on the map for the pickup point for a rifle. It
In addition to this supposed chain of custody evidence, defense counsel's argument for the authenticity of the diary pages as being authored by Backus was that the entries could be corroborated by real events. The defense pointed out the real kidnappings of Cutshall, Weeks, and Bald Eagle.
Defense counsel also pointed out that neighbors who were mentioned in the diary were Backus' actual neighbors. The diary also described cattle escaping and wandering onto the neighbors' property, and Backus confirmed in her deposition that sometimes that occurred. The diary indicated that Backus and Wetzel Backus preferred Hereford cows and that they had horses. Backus also confirmed those things to be true.
One diary entry states, "[F]riday we get to go to SD to look for our new guest we can have 3 guest[s] stay in there we have 3 sets of the shackles but can make more." Defense counsel pointed out that Backus admitted in her deposition that they had sometimes gone to South Dakota to buy bulls.
On September 18, 1989, the diary states that Wetzel, born in January 1910, had died. Defense counsel pointed out that these dates of Wetzel's birth and death are correct.
Thereafter, a diary entry states, "what to do with Kathy now," then describes that "Kathy" ran away and will not come back, and "I hit her with pickup will haul her to some place else as they R lookin for her." Defense counsel emphasized that the blunt trauma found on Beard's remains could be consistent with being struck by a vehicle.
Because authentication rulings are necessarily fact specific, a trial court has discretion to determine whether evidence has been properly authenticated. An appellate court reviews the trial court's ruling on authentication for abuse of discretion.
An abuse of discretion, warranting reversal of a trial court's evidentiary decision on appeal, occurs when a trial court's decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence.
We find that the trial court did not abuse its discretion in determining that the purported Backus diary had not been properly authenticated. Authentication or identification of evidence is a condition precedent to its admission and is satisfied by evidence sufficient to prove that the evidence is what the proponent claims.
Under such provision, other courts have found a writing to be adequately authenticated when, for instance, the writing was attributed to someone who was the only known resident of an isolated and remote area where the writings were found.
But the circumstances of the diary pages' having been apparently in Douglas' possession and mailed by Douglas do not uniquely authenticate them as being written by Backus. Furthermore, none of the corroborated facts mentioned in the diary are the kind of facts that only Backus would know. The corroborated facts are either public record or facts Douglas could have discovered in his work at the ranch and at the sale barn.
These facts did not satisfy Oldson's burden to present evidence sufficient to support a finding that the diary was written by Backus. And they must be viewed in light of the fact that Backus denied writing the diary. In addition, there was no evidence that the diary pages were ever seen in Backus' possession or in a place where Backus solely had access.
Finally, it would have been natural for the trial court to have considered the elephant in the room: Why, despite being in possession of the alleged author's writing exemplars, obtained during Backus' deposition, did Oldson make no attempt to demonstrate or even argue that the diary pages were written in Backus' handwriting.
While not a high hurdle, as Oldson points out, it is still the burden of the proponent of the evidence to provide the court with sufficient evidence that the writing is what it purports to be. And to establish on appeal that the trial court abused its discretion in finding that the evidence was not properly authenticated is a higher hurdle. An abuse of discretion occurs only when the decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence.
Shortly after trial, Douglas was finally found and arrested. The defense moved for a new trial based on this event as well as on the ground that there had been a late disclosure of the DNA evidence presented at trial determining that hairs found on Beard's sweater belonged to cows and to a DNA technician. Oldson asserts on appeal that the trial court erred in denying his motion for new trial on both these grounds.
The standard of review for the denial of a motion for new trial is whether the trial court abused its discretion in denying the motion.
Douglas was interviewed by defense counsel's private investigator and by law enforcement, and those interviews were entered into evidence in support of a motion for new trial. The defense also offered a recorded conversation between Douglas and his girlfriend while Douglas was in jail. Finally, the defense called Douglas to testify at the hearing.
In the telephone conversation with his girlfriend, Douglas stated that he cannot tell law enforcement what he knows or "they" will hurt his mother. Douglas said he knew Backus had a diary and knew where she buried it and why it did not burn in a fire on her property. He denied writing the diary. Douglas later made reference to how "these people have told me everything what to write and what to do," but it does not seem from the context that he was referring to the diary.
In the interviews with law enforcement and with defense counsel's private investigator, Douglas denied sending the diary pages or writing the diary. He was confronted with the fact that his DNA was found on the envelope the pages were mailed in. Douglas explained that he had envelopes and stamps in his backpack. Douglas speculated that when he was staying at a homeless shelter, the backpack was stolen.
In the interview with defense counsel's private investigator, Douglas made oblique references to Backus' having once told him she had had young girls living with her on the ranch in the past to help with washing and cooking. Douglas also talked about hauling scrap metal out of a wood shanty built into a hill. Douglas denied any knowledge of kidnappings at the ranch.
In the interview with law enforcement, Douglas referred to having just passed a mental evaluation in Norfolk. He explained that he had most recently been living at a homeless shelter in Omaha and spent most of his days at the library looking on the Internet at the local news.
Douglas explained that he previously worked odd jobs for Backus. Douglas said that Backus owed him money. Douglas described that, one day, three men who said they worked for Backus threatened Douglas and told him to forget he had ever seen them. Douglas thought that Backus and these men were "moving drugs." Douglas explained that sometime after that, he woke up in the hospital with no recollection of why he was there.
In his testimony at the hearing on the motion for new trial, Douglas said he started doing odd jobs for Backus at the ranch in 2007. He testified that Backus stopped paying him. Douglas eventually again stopped working for Backus; Douglas testified that Backus owed him over $30,000 for work he had done for her. Douglas claimed some of what was owed him was eventually paid by a man named "Claire," last name unknown, who lived near Chambers, Nebraska. Douglas came into contact with "Claire" after "a guy that had worked for [Backus] before called me and told me, he said if you want to get paid to go see this Claire."
Douglas testified that he had seen Backus writing cattle prices and similar things in a journal that she carried with her when she went to the sale barns. He had never touched the journal, but had once seen it lying open and saw entries about her cattle.
Even though defense counsel submitted evidence that Douglas' DNA was found on the seal and the stamp of the envelope in which the diary pages had been mailed to Oldson, Douglas continued to deny having either written or mailed the diary. Douglas testified that he did not recognize the diary pages that defense counsel showed him at the hearing. Douglas also testified that he did not recognize the handwriting in the diary pages as Backus', although he stated that "[i]t's similar...."
Douglas stated that there were balloons in a spot on the ranch where Backus told him one of her cutting horses was buried. Douglas also reiterated that he had torn apart a structure built into a hill on the ranch and had found heavy chains in 50-gallon barrels that were inside the structure. He saw two bedframes in the structure. Douglas reiterated that Backus had told him that she once had girls living on the ranch who helped with the chores.
Douglas mentioned that one day, he opened a "wood shell box" that Backus carried around with her. In that box were "napkins and stuff" with writing on them, including several small books. He saw a reference to "Barbara" and how she had run away. Also, once when he proposed digging on the ranch to place a water line, Backus "blew up right away and told me you ain't digging nothing on my land."
Douglas testified that he was scared of "[t]he guy in Grand Island that [Backus] had with her," an "Antonio Rodriguez," because Rodriguez had threatened Douglas several times. Douglas described a dog that became sick after eating "white powder" that looked like "drug stuff" in a box in the back of Backus' truck. Douglas said that Rodriguez made him take care of the dog and "keep [Douglas'] mouth shut," so that Backus would not get in trouble. Later, Douglas purportedly found a list of names that Backus and Rodriguez were "delivering stuff to." He said he was threatened to keep quiet.
At the hearing on the motion for new trial, defense counsel argued that DNA evidence confirming that the diary was in Douglas' possession somehow further authenticated the diary — apparently by providing a better chain of custody. Defense counsel also pointed out that Douglas did not know Oldson and had no motive for fabricating a diary and sending it to Oldson in order to exculpate him. Defense counsel's theory was that Douglas was trying
Oldson makes arguments on appeal similar to those made below. Oldson also makes new arguments about the authenticity of the diary that have little to do with finding Douglas. Oldson asserts for the first time on appeal that Backus was able to alter her handwriting for purposes of the deposition and asserts that Backus used similar shorthand abbreviations in the deposition exemplars as those in the diary. Oldson also argues that Backus' request to speak with counsel during the deposition, as well as Backus' evasive behavior during her deposition, such as "well-timed heart palpitations," "punctuate [Backus'] culpability."
We find no abuse of discretion in the trial court's determination to deny the motion for new trial based upon information gleaned after Douglas' arrest. A trial judge is accorded significant discretion in granting or denying a motion for new trial, because the trial judge sees the witnesses, hears the testimony, and has a special perspective on the relationship between the evidence and the verdict.
Neb.Rev.Stat. § 29-2101 (Reissue 2008) provides that a new trial may be granted for any of the following grounds affecting materially the defendant's substantial rights: (1) irregularity in the proceedings which prevented the defendant from having a fair trial; (2) misconduct of the jury, the prosecuting attorney, or the witnesses for the state; (3) accident or surprise which ordinary prudence could not have guarded against; (4) the verdict is not sustained by sufficient evidence or is contrary to law; (5) newly discovered evidence material for the defendant which he or she could not with reasonable diligence have discovered and produced at trial; (6) newly discovered exculpatory DNA or similar forensic testing evidence obtained under the DNA Testing Act; or (7) error at law occurring at trial.
We address whether a new trial was warranted on the ground that locating Douglas was newly discovered evidence material to Oldson's case. A criminal defendant who seeks a new trial because of newly discovered evidence must show that if the evidence had been admitted at the former trial, it would probably have produced a substantially different result.
Oldson apparently believes that Douglas' testimony would have, in conjunction with the other corroborating evidence, sufficiently authenticated the diary as a writing by Backus, thereby making it admissible. Oldson also apparently believes that the
We find no abuse of discretion in the trial court's conclusion that the additional evidence did not cure the foundational and reliability deficiencies that existed prior to finding Douglas. Douglas' arrest provided little more than the circular foundation of Douglas' own statements to support his assertion that he did not write the diary and his insinuations that Backus did. Oldson did not present at the hearing any independent evidence corroborating Douglas' testimony, including that Backus kept a diary, that Backus had a shanty built into a hill with beds and chains in it, that Douglas was an unwilling witness to Backus' apparent illegal drug operations, that Backus owed him a substantial amount of money, or that Rodriguez had threatened Douglas and possibly assaulted and kidnapped him.
Moreover, even if the court should or would have admitted the diary pages into evidence had it been presented with Douglas' statements during trial, Oldson failed to establish the probability that the jury would have reached a different result if the evidence had been admitted at trial. The jury had already been presented with the theory that Backus was the real killer. The jury had been told that there was a diary purportedly written by Backus in which she had described kidnapping and killing Beard and the other missing women.
The jury clearly rejected this theory, in spite of testimony that there was "corroborating evidence," such as the diary listing the correct names, dates, physical descriptions, and other correct details pertaining to the missing women named in the diary. It is unclear exactly how Oldson hypothesizes that presenting to the jury the photocopies of the actual diary pages or Douglas' testimony would have probably resulted in the jury's accepting the theory that Backus and Wetzel kept several kidnapped women as sex slaves and that Backus killed Beard by running her down with a truck.
We conclude that, as relates to the alleged Backus diary, the trial court did not abuse its discretion in denying Oldson's motion for new trial.
There was testimony at trial, without objection, that a hair found on Beard's sweater ultimately was found to belong to a DNA technician and that other hairs found on the sweater were cow hairs. According to defense counsel, the defense did not receive a copy of the DNA report concerning the hairs until approximately 2 weeks before trial. Beside the fact that this argument appears waived by the failure to object at trial, it is unclear from Oldson's cursory arguments how the alleged nondisclosure would fall under one of the grounds listed in § 29-2101 or how the alleged nondisclosure materially affected his substantial rights. Oldson does not allege that the State violated Brady v. Maryland,
Having found no error, we find no merit to Oldson's assertion that cumulative error warrants a new trial.
Neither do we find merit to Oldson's claim that the evidence admitted at trial was insufficient to sustain the verdict.
The law imposes a heavy burden on a defendant who claims on appeal that the evidence is insufficient to support a conviction.
Oldson asserts that the only evidence supporting his conviction are Oldson's own statements and the fact that he was last seen leaving the Someplace Else Tavern with Beard on the night of her disappearance. Oldson argues, "Given the plethora of other suspects, ... the lack of physical evidence, and the implausibility of the State's scant theory, this conviction cannot stand."
We have reviewed all the evidence submitted at trial and find it sufficient to support the verdict. While there is no physical or eyewitness evidence directly linking Oldson to the crime, circumstantial evidence is not inherently less probative than direct evidence. In finding a defendant guilty beyond a reasonable doubt, a fact finder may rely upon circumstantial evidence and the inferences that may be drawn therefrom.
Beard was last seen leaving the Someplace Else Tavern with Oldson. Oldson's own statements indicated that he took Beard out to the alley behind the bar, where some violence occurred in his attempt to get her into his truck. Oldson was expected to come back to the Someplace Else Tavern and give his father and Kittinger a ride home, but he did not. Instead, Oldson's father and Kittinger arrived at home to find Oldson freshly showered and on his way to the Laundromat.
There was evidence from which the jury could reasonably infer that from the moment Oldson left the Someplace Else Tavern until the time he arrived home to shower, Oldson had enough time to kill Beard and leave her remains outside of Ord. Viewing the evidence in a light most favorable to the prosecution, there was also evidence that Oldson indicated to his wife, Minnie, he would kill her just as he had killed Beard.
It was the province of the jury to reject Oldson's story that after an unsuccessful and somewhat violent attempt to get Beard into his truck, Beard immediately left the Someplace Else Tavern in the truck of an unidentified person, leaving all her personal belongings inside the bar. And it was the province of the jury to reject the notion that Beard was killed by Hawley, White, Mentzer, or unidentified carnival workers, or that she became involved in a sex-slave operation at the Backus ranch and was eventually run over by Backus' truck. In sum, viewing the evidence
Lastly, Oldson asserts that the trial court erred in sentencing him to life-to-life imprisonment when the jury found him guilty of the lesser offense of second degree murder. Oldson argues that imposing the maximum sentence for second degree murder, which corresponds to the mandatory sentence for first degree murder, constitutes an abuse of discretion and undermines the sentencing structure created by the Legislature. He also argues his sentence is excessive.
An appellate court will not disturb sentences that are within statutory limits, unless the district court abused its discretion in establishing the sentences.
When dispositive issues on appeal present questions of law, an appellate court has an obligation to reach an independent conclusion irrespective of the decision of the court below.
Statutory interpretation is a question of law that an appellate court resolves independently of the trial court.
Murder in the first degree without a notice of aggravating circumstances is a Class IA felony.
Where a sentence imposed within the statutory limits is alleged on appeal to be excessive, the appellate court must determine whether the sentencing court abused its discretion in considering and applying the relevant factors as well as any applicable legal principles in determining the sentence to be imposed.
This case concerns a brutal murder. The trial court explained that in reaching its sentence, it considered the amount of violence involved in the commission of this crime. The court explained, "Although we are not certain as to the exact circumstances surrounding ... Beard's death, there is no doubt it was vicious and violent." The court also considered Oldson's prior convictions for third degree assault in 1989, attempted third degree sexual assault in 1992, and intentional child abuse in 1998. The court noted Oldson's failure to accept responsibility for his actions and his failure to express remorse or empathy for Beard or the victims of his other crimes.
An abuse of discretion occurs when a trial court's decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence.
For the foregoing reasons, we affirm the judgment below.
AFFIRMED.
Stephan, J., not participating.
Connolly, J., concurring.
I concur in the judgment. But I disagree with the majority opinion in three key respects:
• First, I disagree with the majority's analysis of the court's admission of exhibits 263 through 266 and exhibits 268 through 271. I believe the trial court improperly admitted seven of these redacted pages from Oldson's journal to show his consciousness of guilt and one to show his motive for killing Cathy Beard.
• Second, I disagree with the majority's mischaracterization of our evidentiary admission standard under Neb. Evid. R. 404.
• Third, I believe the majority similarly ignores our precedent under Neb. Evid. R. 403
Because the majority has drifted from our rule 404 jurisprudence, I believe it is necessary to restate the rule's admission requirements under our precedents. Apart from exceptions that are not at issue here, rule 404(1) provides that "[e]vidence of a person's character or a trait of his or her character is not admissible for the purpose of proving that he or she acted in conformity therewith on a particular occasion...." Section 27-404(2) similarly prohibits proving a defendant's conforming behavior with a character trait through evidence of a defendant's acts that are extrinsic to the charged crime:
In 1987, this court held that evidence showing a defendant's consciousness of guilt is relevant to support an inference that the defendant committed the charged crime. We further held that rule 404(2) governs consciousness of guilt evidence.
To be independently relevant for a proponent's stated purpose, evidence offered under rule 404(2) must not depend upon a forbidden propensity inference about the defendant's character:
We have specifically held that evidence of a defendant's extrinsic act lacked
We first set out this procedural requirement and our admissibility standard of independent relevance in 1999.
The majority does not state that a fact finder's chain of reasoning must not depend on propensity reasoning about the defendant's character. Instead, it cites a legal encyclopedia and states that extrinsic evidence that "only incidentally impugns a defendant's character is not prohibited by rule 404." It cites a legal commentator who has pointed out that evidence of a defendant's extrinsic bad acts always contains legitimate and illegitimate inferences. From this, the majority makes a giant leap to draw this erroneous conclusion:
(Emphasis supplied.) But we have rejected this reasoning by adopting our independent relevance standard.
Moreover, the two Nebraska cases that the majority cites do not support its conclusion. One of the cited cases, State v. McGuire,
Our independent relevance standard guards against the danger that jurors will overestimate the value of extrinsic acts and convict a defendant for an improper reason.
Finally, and most important, the majority's statements are contrary to the statute itself. Rule 404(2) does not provide that extrinsic acts are admissible if the proponent's sole purpose is not to prove the defendant's conforming behavior. Rule 404(2) precludes the use of extrinsic acts to prove a defendant acted in conformity with a character trait — period. It does not provide that extrinsic acts are admissible as proof of a defendant's "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." It provides that extrinsic acts evidence may be admissible for such purposes:
So, contrary to the majority's statement, the question is not whether a proponent has offered extrinsic acts evidence solely to prove a defendant's propensity to act in conformity with a character trait. Such evidence would clearly be inadmissible in Nebraska. Under our independent relevance test, the question is whether the proponent's evidence is relevant for an ostensibly legitimate purpose only through the forbidden propensity reasoning. Although the majority's statement may reflect the admissibility standard for a defendant's extrinsic acts in some other jurisdictions,
The majority, not satisfied with misstating our admissibility standard for rule 404(2) evidence, goes even further. It states that "[i]f character evidence is admitted for a proper purpose, then, ipso facto, it is not admitted for the purpose of showing propensity." This is misleading. We do not determine whether a court's stated purpose for admitting rule 404(2) evidence was proper in a vacuum. The purpose is only proper if a fact finder could conclude the evidence is relevant to establish the proponent's intended proof without engaging in propensity reasoning about the defendant's character.
As stated, our independent relevance standard and procedures for admitting evidence under rule 404(2) has been the law since 1999. Yet, the majority has not overruled any of these cases, nor could it convincingly do so. When we have interpreted or established a rule, the doctrine of stare decisis applies. It requires us to adhere to our previous decisions "unless the reasons therefor have ceased to exist, are clearly erroneous, or are manifestly wrong and mischievous or unless more harm than good will result from doing so."
And major legal commentators have advocated our independent relevance standard.
By requiring appellate courts to adhere to their previous decisions in most circumstances, the doctrine of stare decisis
And the doctrine should apply with greatest force to our decisions on evidentiary issues because lower courts and practitioners must predictably apply these rules daily. But the important point here is that the majority has not overruled our established precedent. Under the doctrine of stare decisis then, the standard of admissibility under rule 404(2) continues to be independent relevance — as we have defined and applied it. That means that the trial court properly admitted evidence of Oldson's extrinsic acts or statements only if it was relevant to a fact of consequence independent of an inference that Oldson acted in conformity with a character trait. But before addressing that issue, I turn to the meaning of independent relevance as it specifically relates to a defendant's consciousness of guilt.
As stated, rule 404(2) governs the admissibility of consciousness of guilt evidence.
Our reasoning in Clancy is consistent with legal authorities who agree that under rule 404(2), consciousness of guilt evidence is logically relevant to establish a defendant's guilty "knowledge" of the charged crime under rule 404(2). The guilty knowledge, in turn, serves as an intermediate inference to prove the defendant's "identity" under rule 404(2). That is, guilty knowledge is an intermediate inference that the defendant is the perpetrator of the charged crime.
But our statement in Clancy that "`nothing but an hallucination or a most extraordinary mistake will otherwise explain its presence'"
Courts have found that many different types of acts are relevant to show a defendant's consciousness of guilt. Many of these acts have involved a defendant's flight or avoidant behavior to escape arrest or detection, or a defendant's attempt to influence jurors or witnesses.
In a case involving a defendant's alleged flight from a burglary, we stated the following rule:
Similarly, we affirmed a court's admission of flight evidence to show the defendant's consciousness of guilt when the "testimony indicate[d] that [the defendant] could have only leapt out of a second-story window to avoid apprehension."
But not all evidence will justify an inference of a defendant's guilty knowledge. There are limits to how far a trial court can allow the State to stretch inferences from circumstantial evidence that is relevant to prove the elements of a crime beyond a reasonable doubt. An inference resting on speculation or conjecture cannot support a criminal conviction.
Under rule 403, a court may exclude relevant evidence if it presents a danger of unfair prejudice, of confusing the issues, or of misleading the jury that substantially outweighs its probative value. Evidence is unfairly prejudicial if it has a tendency to suggest a decision on an improper basis.
Regarding flight fact patterns, legal commentators and other courts have extensively discussed how circumstances unrelated to a defendant's guilt of a charged crime can often explain a defendant's alleged avoidance or flight from law enforcement officials.
In a seminal case, the Fifth Circuit held that the court erred in admitting evidence of the defendant's flight because it could not support the third inference: consciousness of guilt for the charged crime. In United States v. Myers,
And the same reasoning applies to the string of necessary inferences to conclude that the excerpts from Oldson's journal showed his guilt. In these excerpts, Oldson
Because a chain of inferences is necessary to reach a determination of guilt, the extrinsic evidence should reasonably support each inference in the chain of logic. Especially under these circumstances, it is insufficient to conclude that the evidence supports an inference that Oldson was guilty of a crime if it does not also reasonably support an inference that he was conscious of his guilt for the charged crime.
Second, although the State can show a defendant's consciousness of guilt from the defendant's inculpatory statements, instead of acts, such statements should also reasonably support an inference of the defendant's guilty knowledge of the charged crime. An example would be a verbal threat to a State's witness, as in Clancy. Our decision in State v. Ellis
In Ellis, the inculpatory statements made by the defendant, Roy Ellis, showed his guilty knowledge of facts specific to a child's murder before the State charged him with the crime. We concluded that the trial court erred under rule 404 in admitting evidence that he had sexually assaulted his stepdaughters 10 years earlier to show his intent for the child's murder. We reasoned that this evidence was relevant only through classic propensity reasoning, but we concluded that the error was harmless. In doing so, we emphasized witnesses' testimonies about suspicious statements that the defendant made while he was in jail for unrelated crimes. We concluded the witnesses had described details that they could not have known unless they had learned them from the person who killed the child:
The reason for requiring the State's evidence to reasonably support each inference necessary to a determination of guilt should be apparent. Consciousness of guilt evidence usually casts the defendant in an unfavorable light and always requires more than one inference to reach a determination
So under our case law, the ultimate test of admissibility should be whether a juror could reasonably conclude — i.e., without relying on speculation or propensity reasoning — that the circumstantial evidence shows a defendant's guilt for the charged crime. Having established the relevant admissibility standard for rule 404(2) evidence generally and consciousness of guilt evidence specifically, I turn to the court's admission of Oldson's statements in his journal.
Beard disappeared from Ord, Nebraska, on May 31, 1989. In June, local and state law enforcement investigators interviewed Oldson at least three times about his interactions with Beard on the night she disappeared. Evidence not presented to the jury showed that in July, officers arrested Oldson for assaulting a woman in Burwell, Nebraska. While he was serving the sentence for this assault in the county jail, he kept a journal. From December 1989 to September 1990, when Oldson was not in his cell, county jail officers copied the pages of Oldson's journal every other week during searches of his cell. Almost 2 years later, in April 1992, investigators found Beard's remains in a pasture outside of Ord. In January 2012, 23 years after Beard's disappearance, a sheriff's officer in Missouri, where Oldson was then living, arrested him for Beard's murder.
On the sixth day of Oldson's trial, the court conducted an in camera hearing on the admissibility of evidence. The State sought to submit nine redacted pages from Oldson's journal while he was in jail for committing the assault in Burwell. It argued that a rule 404(3) hearing was unnecessary. The prosecutor stated that "every single admission or inculpatory statement that's made in that diary specifically addresses what took place and the facts and circumstances between Mr. Oldson and Cathy Beard on May 31st, 1989, nothing else."
In response to Oldson's objections to this argument, the court went through the redacted pages individually. Oldson's attorney explained that in a proceeding to obtain a search warrant, an officer stated that county jail officers had found Oldson's journal in the trash. But when the court later asked the prosecutor what the State's foundation would be for one of these pages, the prosecutor gave a different account. He said that while Oldson was in jail, county jail officers performed cell checks every other week. At these times, the officers would remove Oldson from his cell, take him to the library, and then copy his journal. The prosecutor said that this went on from December 1989 to September 1990, when the State released Oldson.
The court admitted Oldson's entire 230-page journal to rule on the admissibility of the redacted pages. The next day, the court issued a written order admitting
After the court instructed the jury not to speculate about the text that had been redacted, the State published these excerpts to the jury. Except for exhibits 266 and 270, the court provided no explanation to the jury for why these exhibits were relevant to prove a fact of consequence in the prosecution. Out of the jury's presence, the court overruled Oldson's motion for a mistrial. Later, the court submitted exhibits 263 through 271 to the jury for review during its deliberations.
In exhibit 263, Oldson wrote the following entry: "I guess the whole import of this thing with the `missing one' has not hit home, yet. But it should, as they are now looking for charges. If they do prefer charges, well —? I don't see how they can hang me for anything."
The court ruled that exhibit 263 was admissible to show that Oldson knew he was a suspect: "Further, the content directly relates to this charge. This is not character evidence and is not unfairly prejudicial."
I assume that in exhibit 263, Oldson's reference to the "`missing one'" was a reference to Beard. But I believe the court erred in admitting this evidence to show that Oldson knew he was a suspect in Beard's disappearance. It is true that Oldson's statement that he doubted investigators could "hang [him] for anything" could be reasonably interpreted to mean he knew he was a suspect. But that evidence was unnecessary. Oldson knew that he was a suspect because investigators had questioned him at least three times in June 1989. And standing alone, his knowledge that he was a suspect was not probative of any fact of consequence. So the court's implicit agreement with the State that exhibit 263 showed Oldson's consciousness of guilt was speculative.
I agree that Oldson's statement could reasonably support an inference that he doubted the State would charge him with a crime. But apart from speculation, that inference could not support the further inferences of Oldson's guilty knowledge about the crime or his guilt of murder. And it could equally support an inference that he was innocent of Beard's murder but concerned that investigators would suspect him of being involved in her disappearance because he was allegedly the last man to have been seen with her. Another reasonable inference could be that Oldson was expressing a doubt that investigators would manufacture evidence against him. He explicitly questioned whether investigators might try to manufacture evidence against him in exhibit 268. And the majority
It is true that Oldson's statement could have also been interpreted to mean that he doubted investigators would find evidence that he murdered Beard. That interpretation would have supported the State's argument that Oldson's statement was relevant to show his consciousness of guilt. But the actual meaning of his statement in exhibit 263 requires guesswork. To interpret his statement to mean that he doubted investigators would find evidence that he murdered Beard required a fact finder to engage in complete speculation about Oldson's meaning.
As stated, courts generally exclude speculative evidence as irrelevant and unfairly prejudicial under rule 403. It encourages jurors to determine an issue by drawing an unreasonable inference.
The majority ignores the court's error under rule 403 in admitting exhibit 263 to show (1) Oldson's knowledge that he was a suspect and (2) implicitly, his consciousness of guilt. Instead, it zeros in on the State's alternative argument at trial.
In a single paragraph, the majority summarily opines that the "oblique nature of Oldson's references to Beard ... or evidence relating to her disappearance" in exhibit 263, 264, 265, and 267 support an inference of Oldson's consciousness of guilt. It incorrectly reasons that his consciousness of guilt can be "inferred from the secretive way in which Oldson referred to Beard throughout his writings." If this analysis of "secretive" references seems weak, it is because the majority necessarily avoids scrutinizing the State's reasoning. The majority states that evidence showing a defendant's consciousness of guilt is strong evidence of guilt because nothing else will explain the evidence. Yet, the majority concludes that the court did not abuse its discretion under 403 in admitting these "oblique" references to Beard or the facts of her disappearance.
There are two problems with this reasoning. First, the trial court gave the jurors no instructions on how they were to consider exhibit 263. Oldson would not have requested a limiting instruction because he argued that the evidence was inadmissible for any purpose. So even if the majority's alternative reasoning were correct, the court's failure to limit the jury to considering exhibit 263 for a proper purpose would have only compounded its error in admitting it for a speculative purpose. Because the jurors would have assumed that the evidence was relevant for proving Oldson's guilt, the danger was high they would have speculated about the meaning of his statement.
Equally important, the majority's alternative theory of relevance — to show Oldson's
First, a review of Oldson's entire journal, which the court received for ruling on these excerpts, shows that there is no other reference to the "`missing one.'" Second, the majority acknowledges that Oldson directly referred to Beard by her last name when he wrote that the Valley County Attorney was "`so obsessed with Beard.'" Oldson also mused about "Cathie" in at least three journal entries, which writings may have also been references to Beard. At least, the record does not show they are not. So Oldson's journal, viewed as a whole, suggests with an equal degree of confidence that he was not attempting to conceal his writings about Beard. Third, Oldson referred to other people by derogatory labels throughout his journal. So his mere use of a label in exhibit 263 is insufficient to show that he deliberately concealed references to Beard. In sum, his references to Beard as the "`missing one'" in exhibit 263 did not reasonably support an inference that he was deliberately concealing his references to Beard. That interpretation is speculative.
More important, even accepting the majority's premise that Oldson was attempting to conceal his references to Beard, exhibit 263 did not show his consciousness of guilt. Even a hundred "oblique" references to Beard could not do that unless the statements themselves were sufficient to support a reasonable inference that he had guilty knowledge of the charged crime. The majority fails to set out the chain of necessary inferences to conclude that Oldson had guilty knowledge of Beard's murder from his statement in exhibit 263. The reason for its omission is clear. As explained above, exhibit 263 could not support that inference apart from speculation. And even if the trial court considered exhibit 263 with exhibits 264, 265, and 267, they do not reasonably support that inference.
The State redacted all but one sentence of exhibit 264: "Well, one doesn't write certain things in his journal, does he?" The court concluded that this page was admissible because it "contains an inference that [Oldson] is hiding something and is inculpatory. It is not character evidence."
The court's admission of exhibit 264 to show that Oldson was hiding something was even more improper under rule 403 than its admission of exhibit 263 — because inferring Oldson's meaning in exhibit 264 was even more speculative. This statement could only be probative of a fact of consequence if it showed that Oldson was hiding his guilty knowledge about murdering Beard. But it was equally plausible that Oldson was musing about a fantasy that he did not want to reveal. Or that he was musing about his desire to kill a cellmate, his regret of a previous bad act, or the facts of murdering Beard. But short of using a Ouija board, no fact finder could divine what Oldson was writing about.
The majority's conclusion that exhibit 264 was admissible to show Oldson's consciousness of guilt through his cryptic references to Beard is similarly wrong. Under
In exhibit 265, the court admitted the following redacted statement: "Well, it looks as if this foolishness about the missing doo-doo has reached a point where the end is in sight. That's good. I like it — perhaps now I can ease my mind." In its order, the court stated, "This is not character evidence. These are statements made by [Oldson] that are directly related to this charge. The jury is allowed to make whatever inferences they choose about this statement."
The trial court incorrectly reasoned that exhibit 265 was admissible because Oldson's statement directly related to the charged crime. I assume that the reference to the "missing doo-doo" was another reference to Beard. As stated, however, other evidence established that Oldson knew he was a suspect. So it was not incriminating for Oldson to express relief that the investigation was almost over. An innocent person could have expressed that sentiment, and Oldson's characterization of the investigation as "foolishness" strengthens an innocent interpretation of the statement. But that interpretation was irrelevant to a fact of consequence.
The trial court may have alternatively reasoned that Oldson's statement was directly related to the charged crime by interpreting it to mean that he was relieved to be getting away with murdering Beard. But again, Oldson's actual meaning required guesswork. The exculpatory and inculpatory interpretations of his statement are both speculative. And because a fact finder could only find that the evidence was relevant to a fact of consequence through speculation, the court's admission of exhibit 265 for any purpose at all virtually ensured that the jurors would speculate about Oldson's meaning. So under rule 403, the court erred in allowing the jurors to speculate that Oldson had guilty knowledge of Beard's murder.
Furthermore, the alternative reasoning in the majority opinion does not cure the problem under rule 404(2). As a reminder, the majority concludes that exhibit 265 was also admissible to show Oldson's consciousness of guilt through his cryptic references to Beard or evidence related to her disappearance. But Oldson's reference to Beard here as the "`missing doo-doo'" fails to show that this was a term he used to conceal his writings about Beard. Knowing that he was a suspect in Beard's disappearance, this label was no more secretive than his reference to the "`missing one'" in exhibit 263. Additionally, he specifically referred to other people in his journal as "doo-doos." And he used worse derogatory labels for others throughout his journal. So in context, his use of labels illustrates only his insensitivity to others, not an encryption. Finally, as noted, Oldson directly referred to "Beard" and mused about an unidentified "Cathie" in other entries. So when his journal is
As I explain later, I agree that exhibit 267 was probative of Oldson's consciousness of guilt for Beard's murder. In that exhibit, Oldson stated that his first priority upon his release was to get rid of something that linked him to an unnamed person or thing. But that single statement cannot show a pattern that proves Oldson was secretly writing about Beard in other excerpts to conceal his guilty knowledge of the crime. It is the content of exhibit 267 that evidences Oldson's consciousness of guilt, not proof of a pattern that shows he used secret references for Beard. Even if the court considered exhibit 267 with the other exhibits offered to show Oldson's attempt to conceal his references to Beard, it failed to show a pattern. There is no nonspeculative pattern in these exhibits. So the majority incorrectly fails to consider each excerpt separately to determine whether it was properly admitted to show Oldson's consciousness of guilt.
The journal entry that the court admitted as exhibit 266 originally read as follows:
The State redacted all but the last three sentences of this entry "[j]ust to be as cautious as possible." So exhibit 266, as presented to the jury, provided the following: "Maybe the problem has been my making girls too high a priority — and having real problems with accepting rejection. Which may be how all this got started. `Get it any way you can' (?) Doesn't sound like a good attitude. It got me in trouble."
The State argued that exhibit 266 was admissible to show Oldson's state of mind when he interacted with Beard outside the bar on May 31, 1989, because he was writing about that specific event. It additionally argued that exhibit 266 was relevant to show Oldson's motive for the charged crime: his refusal to accept rejection.
Oldson's attorney argued that exhibit 266 was too speculative to show that he was writing about Beard. She reminded the court that Oldson wrote that this "may
The court admitted Oldson's statements that he had problems accepting rejection and that his "`[g]et it any way you can'" attitude had got him into trouble to show his motive and consciousness of guilt for Beard's murder:
Despite this ruling, just before the State published exhibit 266 to the jury, the trial court changed course. It instructed the jurors that exhibit 266 was being admitted "to help you decide motive.... You must consider this evidence only for this limited purpose." So the court admitted exhibit 266 to show only motive, not consciousness of guilt.
The majority agrees that exhibit 266 was logically relevant to show Oldson's reason for killing Beard. But to reach that conclusion, it first reasons that the evidence shows Oldson's consciousness of guilt. It states that the court "[i]n essence... found that the jury could reasonably infer from exhibit 266 that Oldson was acknowledging he had gotten himself into `trouble' because he attempted to `[g]et it any way you can' when Beard rejected him on the night of her disappearance." Citing Huddleston v. United States,
The majority concludes that the court was required to consider other evidence, "especially the other journal excerpts." It concludes that the jury could reasonably draw the inference that Oldson was writing about Beard because his other journal entries independently supported an inference that he referred to Beard in a purposefully vague way. It finds nothing in Oldson's journal excerpts to undermine this conclusion. So it concludes that the "jury could reasonably infer from exhibit 266 that Oldson was reflecting upon the fact that he had killed Beard because she rejected him."
On appeal, Oldson argues that the court should have excluded exhibit 266 because he could not rebut the motive inference
Finally, the majority concludes that exhibit 266 did not present a rule 403 problem. It implicitly reasons that the exhibit did not create a propensity inference because Oldson was writing about killing Beard. But it alternatively reasons that because there is no character trait involved in having a problem with rejection, he could not have been prejudiced by improper propensity reasoning. As the final nail in the coffin, the majority states that only rarely, and only under "`extraordinarily compelling circumstances,'" will this court reverse a trial court's rule 403 determination.
To summarize, the majority's confusing analysis concludes that when read in context with his other cryptic statements, Oldson's statement in exhibit 266 was direct evidence of his motive: He was explaining why he killed Beard. Because he was writing about Beard's murder, it was not evidence of his character. Through this reasoning, it dodges Oldson's argument that exhibit 266 was character evidence. Worse yet, the majority concludes that because exhibit 266 showed that Oldson's motive for killing Beard was rejection, exhibit 266 was properly admitted under rule 404 even if it was character evidence. It reasons that the court's admission of Oldson's statement is not nearly as bad as statements that courts have admitted in some other cases. And the danger of unfair prejudice did not outweigh the exhibit's probative value under the majority's new standard of rarely questioning a court's ruling under rule 403. Finally, requiring Oldson to produce evidence of an unrelated assault to rebut a motive inference was not unfairly prejudicial because he could have cross-examined the State's witness about the extrinsic evidence without relying on propensity inferences about his character.
The court's admission of exhibit 266 to show Oldson's motive for murdering Beard was wrong for three reasons. It required speculative reasoning when offered as direct evidence of Oldson's motive. It required propensity reasoning when offered as circumstantial evidence of Oldson's motive. Finally, the jurors were highly likely to have engaged in speculative or propensity reasoning because they did not know that Oldson was probably writing about the extrinsic Burwell incident. And Oldson could not have presented the extrinsic evidence without painting himself as a person who was likely to have committed the charged crime.
The majority ignores much of our precedent to uphold the admission of this single exhibit in a single case. I disagree with its reasoning, and I particularly disagree with its suggestion that we should abdicate our role to uphold our evidentiary standards
The circumstances known to the court showed that Oldson was likely writing about his incarceration for assaulting a woman in Burwell. That offense was the closest in time to his journal entry and the only crime that had actually "got [him] in trouble." So he was more likely to have been writing about that crime. And because the court knew these circumstances, it knew that the jurors would be speculating to conclude that Oldson was writing about why he murdered Beard. For that reason alone, rule 403 should have precluded its admission. The unfair prejudice from drawing a speculative — and thus unreasonable — inference about Oldson's motive outweighed any probative value.
Although the majority states that the court was required to consider other evidence when considering whether to admit exhibit 266, it apparently does not include in that mandate the court's knowledge that when Oldson wrote this, he was serving a sentence for assaulting another woman. Instead, the only evidence that the majority thinks the trial court should have considered are Oldson's other journal entries.
But Oldson's other journal entries fail to show that he was writing about why he murdered Beard in exhibit 266. His labels and silence in the other exhibits are too inconsistent to show that he used a pattern of cryptic references for Beard or that he omitted her name whenever he wrote about her. And most of them are simply not incriminating. So they do not show that Oldson was secretly writing about why he murdered Beard in exhibit 266. It is only because the majority ignores the speculation problem in detecting a pattern in Oldson's references to Beard that it can avoid the speculation problem in reasoning that Oldson was writing about Beard in exhibit 266. Equally important, Oldson's full statement in exhibit 266 showed that he was ruminating about his problems with women generally. Only by extracting the three selected sentences from their context could the State convincingly argue that Oldson was writing about why he murdered Beard.
So I disagree with the majority's reasoning that there is no support in Oldson's journal to show that the admission of exhibit 266 was misleading and unfairly prejudicial. And if these statements are unambiguously direct evidence of the reason that Oldson killed Beard, a reader must wonder why the State waited so long to prosecute him when they were aware of his statements soon after he wrote each journal entry.
As a reminder, exhibit 266 comprised this statement: "Maybe the problem has been my making girls too high a priority — and having real problems with accepting rejection. Which may be how all this got started. `Get it any way you can.'"
The majority incorrectly states that the probative value of this statement depended upon a finding that Oldson was writing about Beard. Remember, the court instructed the jurors only that exhibit 266 was admissible to help them decide Oldson's motive for killing Beard. It did not condition their consideration of the evidence on a finding that Oldson was writing about why he killed Beard, and Oldson never referred to Beard in the statement. Because it was not direct evidence of Oldson's guilt, its admission allowed the jury
Other than speculating that exhibit 266 was direct evidence of Oldson's motive for killing Beard, the jurors could have only considered it to be proof of his motive by reasoning that he was probably acting in conformity with a character trait. That trait was Oldson's propensity to "`[g]et it any way you can'" if he was rejected. But this theory of logical relevance conflicted with rule 404(1)'s forbidden propensity reasoning. Apart from exceptions that do not apply, rule 404(1) provides that "[e]vidence of a person's character or a trait of his or her character is not admissible for the purpose of proving that he or she acted in conformity therewith on a particular occasion...."
The majority rebukes Oldson for extracting the meaning of his statement "from any context that it referred to Oldson's actions with Beard on the night of her disappearance and his motive for those actions." But it is the majority that has extracted the statement from its context, both from the context of his full statement in exhibit 266 and from the circumstances known to the trial court. The majority, with a surgeon's scalpel, even attempts to extract his statement that he had problems accepting rejection — which it declares is not a character trait — from his statement that his attitude of "`[g]et it any way you can'" got him into trouble. Nonetheless, the jury would have got the point that the two traits were connected. The prosecutor specifically argued in closing that exhibit 266 provided a glimpse of Oldson's mindset and showed that he was unable to accept Beard's rejection of him. And the State argues on appeal that Oldson's journal writings "reflect that Oldson got in trouble because he [could] not handle being rejected."
The majority apparently recognizes the propensity problem in the State's argument because it resorts to again undermining our rule 404 jurisprudence. It states, "If character evidence is admitted for a proper purpose, then, ipso facto, it is not admitted for the purpose of showing propensity" and rule 404(1) does not apply. But regardless of whether subsection (1) or (2) of rule 404 governs Oldson's statement, it was not independently relevant as circumstantial evidence of his motive. Under that theory of relevance, the primary purpose of presenting the evidence was to establish Oldson's propensity to do whatever it takes to get sex if rejected — his character trait. Only by establishing this inference could the State use the statement to show his motive for the charged crime. And we have previously held the State cannot rely on propensity reasoning to show motive.
In sum, the jurors could only conclude that Oldson was writing about why he killed Beard through an inference resting on speculation. Alternatively, they could only conclude that his writing was circumstantial evidence of his motive through a propensity inference about his character. Either inference was unreasonable. Because the inferences were unreasonable,
The majority dismisses Oldson's argument that he could not rebut the inference created by the admission of exhibit 266 as a tough strategical choice. It cites cases in which a court upheld the admission of flight or escape evidence to show a defendant's consciousness of guilt even though the defendant was sought or being held for more than one crime. But these cases primarily show that even when the defendant has committed multiple crimes, the circumstantial evidence is admissible if it reasonably supports one of two inferences: (1) the defendant was primarily attempting to evade capture or escape custody for the charged crime
Some of the cases that the majority relies on are older and arguably inconsistent with the majority of cases that require courts to be cautious in admitting evidence of a defendant's alleged flight or evasive conduct. But to the extent they are inconsistent, they should be interpreted to mean that a trial court must be sensitive to the facts of the case.
Similarly, in rejecting Oldson's argument that exhibit 266 was character evidence, the majority relies on hate crime cases or cases in which a defendant expressed a desire to kill or harm a random member of a group.
What matters here is that inferring motive from exhibit 266 required an unreasonable inference. And the majority recognizes
The rebuttal dilemma underlies the requirement that the evidence used to show a defendant's consciousness of guilt must reasonably support each necessary inference in the chain of logic for that proof. The Fourth Circuit discussed this problem in a flight case where the defendant left the jurisdiction immediately after an investigator left a note at his residence for him to contact the investigator. In United States v. Beahm,
Other courts have similarly reasoned that the introduction of propensity evidence can unfairly put a defendant in a position of explaining extrinsic misconduct or a character trait.
Twenty-seven days before he was released from jail in 1990, Oldson again ruminated about the Beard investigation: "Well, there it is. What's next, I wonder? It's gettin' closer — and G.J. and the Fried Eggplant gang aren't movin' — although they still could, conceivably. How, I don't know — in fact, [illegible] wonder if there is any way he could even manufacture something? I doubt it."
In this statement, I accept that the initials "G.J." are reasonably interpreted as a reference to the Valley County Attorney at that time and that the "Fried Eggplant gang" was a derogatory label for the investigators. The court ruled that exhibit 268 was admissible to show Oldson's knowledge that he was a suspect and to show why he might have wanted to get rid of evidence "as can be inferred from [exhibit 267]."
The court erred in admitting exhibit 268 to show Oldson's knowledge that he was a suspect and to show why he needed to get rid of something. Oldson only needed to dispose of evidence connected to Beard's murder if he was guilty of committing that crime. But exhibit 268 did not reasonably support an inference that Oldson had guilty knowledge of Beard's murder. Oldson only wondered if the Valley County Attorney might still charge him with a crime and if investigators would manufacture evidence for that purpose. An innocent man might also wonder if investigators would manufacture evidence against him when he knew he was a suspect. And the majority concedes that Oldson's statement in exhibit 268 was "largely exculpatory." Nonetheless, it concludes that the court did not abuse its discretion in admitting exhibit 268 under rule 403. Not so.
The majority's statement that exhibit 268 was largely exculpatory shows that an innocent interpretation was the most probable interpretation and, minimally, an equally speculative interpretation. Nor does the majority point to any fact of consequence or intermediate inference for which exhibit 268 was probative. Oldson's meaning in exhibit 268 was too speculative to prove a fact of consequence. So the court erred in admitting evidence that allowed the jurors to speculate that the exhibit showed Oldson's guilt of murdering Beard.
In this excerpt, Oldson disparaged the investigators for not investigating whether anyone else was involved in Beard's disappearance and stated that he was going to "get away":
The court ruled that exhibit 269 was admissible for the same reason as exhibit 268: to show Oldson's knowledge that he was a suspect and to show why he might have wanted to get rid of evidence "as can be inferred from [exhibit 267]."
As with exhibit 268, the majority seems to agree with Oldson that exhibit 269 was largely exculpatory: "Oldson opines in exhibits 268 and 269 that the only way law enforcement could bring charges against him is if it manufactured evidence." Nonetheless, it concludes that exhibit 269 is probative of Oldson's guilt. It reasons that a fact finder could infer from exhibit 269 that Oldson thought he would "`get away,' because law enforcement was going to make mistakes." So the majority implicitly reasons that exhibit 269 could show his consciousness of guilt by interpreting the statement to mean that Oldson believed he would "`get away'" with murder. It concludes that the court did not abuse its discretion in admitting the evidence under rule 403.
The problem with the majority's reasoning is that the trial court knew that Oldson was in jail for the unrelated crime in Burwell when he wrote this. Oldson made
When viewed in the context of Oldson's journal entry on the preceding day, his statement that "I'm gonna get away" is reasonably interpreted to mean that he was going to "get out of jail," instead of going to "get away with murder." Even without the context of his previous day's entry, the majority concedes the statement was largely exculpatory.
But because the jurors did not know that Oldson was in jail for another crime when he wrote this statement, they were highly likely to draw the conclusion that he had guilty knowledge of the charged crime. Remember, the jurors only knew that Woodgate was sheriff of Valley County in 1989 when Beard disappeared and that he had obtained Oldson's writings between December 1989 and September 1990. Because the context of the writings was unknown to the jurors, the danger was high they would speculate that Woodgate had obtained them through a search during the investigation of Beard's murder. Disconnected from the context of Oldson's incarceration for unrelated crime, the excerpt supported a damning inference that Oldson was writing about getting away with murder. But the trial court knew the actual context and should have excluded exhibit 268 because it would allow the jurors to speculate that Oldson believed he would get away with murdering Beard. Had they known the context, they could have just as easily speculated that he thought he would get out of jail before investigators manufactured evidence against him.
Sixteen days before he was released, Oldson wrote the following journal entry:
The court ruled that the statement was relevant to show Oldson's knowledge that he was a suspect and to show why he might have wanted to get rid of evidence "as can be inferred from [exhibit 267]."
As with Oldson's other journal excerpts, exhibit 271 could only show why Oldson would need to dispose of evidence if it supported a reasonable inference that he had killed Beard. The majority states that Oldson's statement is probative of his guilt because a fact finder could infer that "law enforcement would not find any incriminating evidence, because Oldson had particular knowledge about the evidence." The majority implicitly reasons that he meant investigators would not find any evidence because he has destroyed it or
It is true that the statement could have meant that Oldson was confident investigators would not find the evidence that he had destroyed or hid. But it could have meant that investigators would not find incriminating evidence because he was innocent. And in holding that exhibit 271 was admissible to show Oldson's consciousness of guilt, the majority again ignores the absolute speculation required to draw either conclusion. Because it did not support a reasonable inference of guilt, the court should have excluded it under rule 403.
In exhibit 270, Oldson expressed his attraction to the stomach of listed persons with whom he had had "experience":
In its written order, the court admitted exhibit 270 for the following reason:
The court overruled Oldson's objections. It implicitly agreed with the State that a limiting instruction could cure any prejudicial effect from the admission of exhibit 270. But contrary to the court's ruling in its order, before the State published exhibit 270, the court gave this limiting instruction:
Under this limiting instruction, the court admitted exhibit 270 only as proof that Oldson was lying about not having a sexual relationship with Beard. The instruction precluded the jurors from considering the statement as proof that he had lied when he said he was a virgin until he got married.
The majority states that the court implicitly determined that exhibit 270 was logically relevant to show that Oldson had sexual contact with Beard on the night that she disappeared. It rejects Oldson's argument that exhibit 270 could simply be a reference to his sexual fantasies. It states that false exculpatory statements of fact which are sufficient to justify an inference of guilt are admissible even if they could be explained another way. It concludes that exhibit 270 was sufficient to support an inference that Oldson made false exculpatory statements of fact when he said that "he was a virgin, Oldson and Beard had apparently not had a sexual relationship prior to her disappearance, and ... Beard rejected Oldson's sexual advances on the night of her disappearance." It also concludes that exhibit 270 did not present a rule 404 problem because Oldson's statement proved conduct that was intrinsic to the charged crime:
In short, the majority concludes that the statement shows both that Oldson had a sexual relationship with Beard before she disappeared and that he sexually assaulted her on the night that she disappeared.
Although Oldson referred to other people with whom he had had "stomach" experiences, the majority states that the other names in exhibit 270 were relevant only to show that the sole person Oldson referred to by initials was "C.B." The majority concludes that Oldson was not prejudiced by evidence suggesting that he had similar sexual experiences with other people: "While promiscuity or even sexual fantasies might be considered by some people to be reflective of a bad character trait, it is hardly the kind of character trait that would compel a jury by improper propensity reasoning to convict a defendant of murder."
So for the other listed names, Oldson's stated experience with them could be real or imagined. There was no deviant sexual propensity suggested in the excerpt because his reference to a "female body part simply clarified the sexual nature of the other sentences. This illustrated that the `experiences' Oldson referred to throughout the excerpt were sexual experiences, either real or imagined." (Emphasis supplied.) But for "C.B.," Oldson's implied sexual experience was with Beard, it was real, and it happened on the night that Beard disappeared.
The majority's reasoning is contrary to the court's ruling and internally inconsistent. The court did not allow the jury to consider the evidence as proof that Oldson had lied when he said he was a virgin until he married. Nor did it admit this evidence as a confession, i.e., to show that Oldson sexually assaulted Beard on the night that she disappeared or on any other
Even if the court had given such an instruction, exhibit 270 is completely speculative to prove Oldson had sexual contact with Beard on the night she disappeared. To begin with, it is too speculative to determine that Oldson was even writing about Beard. In this regard, the majority incorrectly states that Oldson only referred to "C.B." by initials. He also referred to a "K.P." by initials. The word in the superscripted parenthetical beside the initials "K.P." is illegible and its meaning unclear. But other names in this excerpt also have superscripted parentheticals with no comprehensible common meaning. So to the extent that the majority has interpreted the superscript beside the initials "K.P." to be a last name, it is speculating. Additionally, as Oldson's attorney argued at trial, Oldson also referred to "Cathie" in this excerpt. He also referred to "Cathie" in two additional excerpts and directly referred to "Beard" in another excerpt.
So the trial court knew, or should have known, that allowing the jurors to determine that "C.B." referred to Beard would be a speculative inference. The other listed names did not cure that speculation. And because it was speculative to conclude that "C.B." was a reference to Beard, the inference that Oldson was writing about his sexual experiences with her was unreasonable under rule 403.
The majority implausibly doubles down on this speculation. Even if Oldson's statement in exhibit 270 had been sufficient to show that he had a sexual relationship with Beard, it would have been too speculative to show that he had sexually assaulted her on the night she disappeared. The trial court at least recognized the speculative inferences required for that conclusion because it did not instruct the jury to consider it for that purpose. Even the majority recognizes that some of Oldson's listed experiences could have been fantasies. But it denies that Oldson's experience with "C.B." could have been a fantasy: "[I]t would not follow that because Oldson's sexual `experiences' with the other women listed were fantasies, the `most gratifying' `experience' with `C.B.' was also a fantasy."
Actually, it does follow. There was no logical reason to conclude that Oldson's gratifying experience with "C.B." was different in kind from his "comfortable" experience with Sandy. And by conceding that some of these "experiences" could have been fantasies, the majority undermines its own reasoning that Oldson's experience with "C.B." was real — even more so its reasoning that Oldson was writing about sexually assaulting Beard on the night she disappeared.
And exhibit 270 was inadmissible character evidence under rule 404. To prove that Oldson was lying, the State needed to
The only way that the jurors could have concluded from exhibit 270 that Oldson had a sexual relationship with Beard before she disappeared was by reasoning that he had actual sexual experiences with all of the people whom he listed in exhibit 270. Exhibit 270 is either too speculative to prove that his "experiences" with any of the listed people were real sexual experiences or it proves that they all were. So exhibit 270 put before the jurors Oldson's sexual experiences with many people, accompanied by the strong suggestion that he rated those experiences based on his unusual sexual preference for stomachs.
Finally, both the court's written order and limiting instruction show that it considered exhibit 270 relevant to prove Oldson's extrinsic sexual acts with Beard to prove his consciousness of guilt: i.e., that he was lying when he said that he had never had a sexual relationship with Beard. So under rule 404(3), before admitting the statement, the court had to find by clear and convincing evidence that the State had proved the extrinsic sexual act(s). It did not. This fatal procedural defect is apparently why the majority unconvincingly opines that exhibit 270 was sufficient to prove that Oldson sexually assaulted Beard on the night she disappeared. Only by claiming that the alleged sexual contact was intrinsic to the murder charge — i.e., Oldson was writing about sexually assaulting Beard on the night he murdered her — can the majority avoid the procedural requirement under rule 404(3).
But even if that procedural defect did not exist, the majority opinion is unpersuasive. The question is not whether the State's evidence can support any inference supporting the proof for which the evidence was offered. The question is whether it can support a reasonable inference that does not rest on speculation or propensity reasoning.
In sum, I conclude that the court erred in admitting exhibit 270 to show that Oldson had lied when he said he never had a sexual relationship with Beard. Concluding that Oldson was writing about Beard in this excerpt required speculation. Even if exhibit 270 could show that he was writing about Beard, it could not show that he had sexually assaulted her on the night she disappeared. And concluding that Oldson was writing about a sexual experience with Beard rested on the inference that Oldson was writing about his sexual experiences with all of the people he listed in exhibit 270. The inference that he had listed his sexual experiences could not be separated from his first statement, showing an unusual sexual preference for the stomach. In context, exhibit 270 listed his sexual experiences that coincided with his stomach fetish. The potential for jurors to reason that he acted in accordance with a
In summary, I conclude that the court erred in admitting eight of the nine redacted excerpts from Oldson's journal. In a jury trial of a criminal case, an erroneous evidentiary ruling results in prejudice to a defendant unless the error was harmless beyond a reasonable doubt.
I believe that the court improperly admitted exhibit 266 to show Oldson's motive for killing Beard: he sexually assaulted her when she rejected him and then killed her. It improperly admitted the remaining seven journal excerpts to show his consciousness of guilt.
But one journal excerpt did show that Oldson had guilty knowledge of Beard's murder. The court properly admitted exhibit 267 for that purpose.
In exhibit 267, the court admitted this redacted statement:
From the bench, the court stated that Oldson's statement about the "only ... link left" was more likely to be a reference to the Beard investigation than any other bad act Oldson had committed. The court ruled that exhibit 267 was admissible to show his consciousness of guilt, i.e., that he needed to destroy evidence, which the jury could infer related to his charge.
I agree with the court that a fact finder could reasonably infer from exhibit 267 that Oldson was concerned about destroying evidence related to the Beard investigation. He wrote this when he was serving a sentence for committing an assault in Burwell, so he would not have been worried about evidence connected to that crime. Beard's murder was the only active investigation against him, and he knew he was a suspect. Moreover, in Oldson's other journal entries, he was not reticent about expounding on his moral failings, sexual fantasies, or sexual behaviors that he needed to control or abandon. So his attorney's argument that in exhibit 267, he could have been writing about a character flaw or pornography that he needed to "get rid of" was not persuasive. The court correctly determined that the statement supported a reasonable inference of his guilty knowledge.
Additionally, the State presented other, stronger evidence of his consciousness of
In the 2012 conversations, Oldson was generally trying to explain why officers had arrested him for murder and speculating that new DNA testing techniques might have shown his DNA was mixed with Beard's DNA on some item or on an area of his father's pickup. To rationalize how investigators might find a mixed DNA sample in his father's pickup, Oldson admitted that he had struggled with Beard and tried to pull her into the pickup with him:
In another excerpt, Oldson speculated about where investigators might find a mixed DNA sample from Beard and himself:
But in 1989, Oldson gave a different version of his physical interactions with Beard. On June 2, Oldson told local officers only that he had tried to get Beard to come with him and that she had refused. He got into the pickup after she refused and, in the rearview mirror, saw her leave with someone else. A retired investigator for the Nebraska State Patrol testified that on June 5, Oldson said that while he was standing outside of the open passenger door of his father's pickup, he asked Beard again if she wanted to do something and she again declined. Oldson admitted that he grabbed her by the wrists and was going to pull her inside the pickup, but he said that she pulled away. The investigator's
From these conversations, a juror could have reasonably inferred that Oldson changed his story because he was concerned that new DNA testing procedures would reveal incriminating evidence that Beard had been inside the pickup, contrary to what he had stated in 1989. And Beard's DNA on his hammer or the pickup's bumper would have been consistent with the blunt force injuries that Beard sustained. In sum, Oldson's attempt to explain why investigators might find such evidence strongly supported an inference of his guilty knowledge that such evidence existed. And his concern in 2012 that a mixed DNA sample might be found on his hammer or other items sufficient to have caused Beard's death is strikingly similar to the concern expressed in exhibit 267 that he had to get rid of the "only ... link left between me and...."
This evidence was before the jurors. The State played the excerpts from the telephone conversations. And the prosecutor specifically argued in closing that Oldson had changed his story in his telephone conversations with his wife and said for the first time that he had wrestled with Beard and tried to pull her into the pickup with him. So there was strong cumulative evidence of Oldson's consciousness of guilt to offset the court's erroneous admission of speculative evidence for that proof. Because the evidence reasonably supported a consciousness of guilt inference, the jurors could properly rely on it to find Oldson guilty of murder. And because he admitted to trying to pull Beard into the pickup with him when she rejected him, the jurors could have reasonably inferred from the 2012 conversations that he had a motive for murder: forcing sexual contact upon Beard or covering up that crime.
To sum up, the speculative evidence that the court erroneously admitted was cumulative to evidence that the court properly admitted for the same purpose. Because I agree with the majority that other sufficient competent evidence supported Oldson's conviction, I conclude he was not prejudiced by the erroneous admissions of his journal excerpts.
Miller-Lerman, J., joins in this concurrence.