State v. Oldson

293 Neb. 718

884 N.W.2d 10

State of Nebraska, appellee,

v.John R. Oldson, appellant

No. S–13–562

Supreme Court of Nebraska.

Filed June 10, 2016.

James R. Mowbray, Lincoln, and Sarah P. Newell, of Nebraska Commission on Public Advocacy, for appellant.

Douglas J. Peterson, Attorney General, and James D. Smith, Lincoln, for appellee.

Heavican, C.J., Wright, Connolly, McCormack, Miller–Lerman, and Cassel, JJ., and Bishop, Judge.

McCormack, J.

TABLE OF CONTENTS

I. Nature of Case...28

II. Background ...28

1. Night of May 31, 1989 ...28

(a) Oldson and Beard Leave Tavern Together ...28

(b) Oldson Goes Home ...29

(c) Possible Telephone Call to Oldson...29

(d) Sharlene Whitefoot Calls Oldson ...29

(e) Rex White and Glen Hall ...29

2. Year Following Beard's Disappearance ...30

(a) Oldson's Statement Heard by Kittinger ...30

(b) Oldson's Statements to Whitefoot ...30

(c) Oldson's Statements to Law Enforcement...30

(i) Statements on June 2, 1989 ...30

(ii) Statement on June 6, 1989 ...30

(d) Pickup Cleaned...31

(e) Witness to Oldson's Statements to Minnie Eggers ...31

(f) Oldson's Statements to Barbara Dasher...31

3. Oldson's Diary Excerpts (Exhibits 263 Through 271) ...31

4. Beard's Remains Found in 1992 ...32

(a) Cause of Death ...32

(b) Oldson Visits Site Where Remains Found ...32

(c) Oldson's Statements to Journalist ...32

5. Oldson's Statements While in Prison Awaiting Trial ...32

6. Defense ...33

(a) No Physical Evidence Linking Oldson to Crime ...33

(b) Minnie Denies Strange Behavior or Being Threatened...33

(c) Beard Commonly Left Tavern With Other Men ...33

(d) Michael Hawley ...33

(e) Rex White ...34

(f) Brian Mentzer and Carnival Workers ...34

(g) Reported Sightings of Beard After Her Disappearance ...34

(h) Sex Ranch Diary ...35

(i) Jerome Walkowiak ...35

7. Verdict and Sentence ...36

III. Assignments of Error ...36

IV. Analysis ...36

1. Motion to Suppress ...36

2. Oldson's Journal Excerpts ...37

(a) Standard of Review ...37

(b) Analysis ...37

(i) Rule 404 ...37

a. Forbidden Propensity Reasoning ...37

b. Other Acts Evidence to Show Propensity ...38

c. When Propensity Reasoning Is Permissible ...39

d. Other Acts Evidence Not for Propensity Purposes ...39

e. Proof of Other Acts ...40

f. Articulating Proper Purpose ...40

g. Limiting Instructions ...40

(ii) Rule 403 ...41

(iii) Application...42

a. Exhibit 266 ...42

i. Background...42 a) Theory of Logical Relevancy ...42

b) Court Concluded Exhibit Not Other Acts Evidence ...42

c) Court Gave Limiting Instruction ...42

ii. Analysis ...42

a) Probative Value: Whether Statement Referred to Beard Was Question for Jury ...42

b) Excerpts Not Taken Out of Context, and Defense Could Have Completed Evidence ...43

c) Hobson's Choice Argument ...43

d) “Pure” Character Evidence ...44

i) Oldson's Argument Abstracts Single Phrase ...44

ii) Statement Not Character Trait ...45

iii) Even if Statement Reflects Character, Admissible for Motive ...45

iv) “Character” Evidence Not Prohibited by Rule 404 When Admitted for Proper Purpose ...45

v) Conclusion ...46

e) Unfair Prejudice Did Not Outweigh Probative Value ...47

b. Exhibit 270 ...47

i. Background ...47

a) Theory of Logical Relevancy ...47

b) Limiting Instruction ...47

ii. Analysis ...48

a) Relevant for Consciousness of Guilt ...48

b) Sexual Contact With Beard Contemporaneous With Killing Is Not Other Acts Evidence ...49 c) List of Other Women ...49 i) Whether Oldson Had Sexual Contact With Other Women Listed Is Irrelevant to Logical Relevance of Excerpt ...49

ii) Limiting Instruction ...49

iii) Other Women Not Uncharged Misconduct to Be Proved by Clear and Convincing Evidence ...50

iv) Reference to Other Women Not Unfairly Prejudicial...50

d) No “Creepy” Fetish Reference...50

e) No Abuse of Discretion in Concluding Exhibit 270 More Probative Than Unfairly Prejudicial ...51

f) Not Inadmissible Because Relevance Dependent Upon Other Evidence Entered by State ...51

c. Exhibits 263, 264, 265, 267, 268, 269, and 271...51

i. Background ...51

ii. Analysis ...52

a) Exhibits Not Unfairly Prejudicial ...52

b) Future Intention Is Not Other Acts Evidence...52

c) Probativeness, Though Sometimes Limited, Not Outweighed by Unfair Prejudice ...53

d. Taking Exhibits Into Jury Room ...53

3. Witnesses Kittinger and Dasher: Hybrid Hobson's Choice With Right to Confrontation and Presumption of Innocence...54

(a) Background ...54

(i) Dasher ...54

(ii) Kittinger ...55

(b) Standard of Review ...55

(c) Analysis ...55

4. Tampering With Witnesses ...56

(a) Background ...56

(i) Objections and Rulings...56

(ii) 1989 Statement ...57

(iii) Multiple Interviews and Multiple Stories ...57

(iv) Walkowiak's Testimony at Hearing on Motion in Limine ...57

(v) 2011 Interview ...57

(vi) Walkowiak's Testimony at Trial ...58

(b) Standard of Review ...58

(c) Analysis... 58

5. Speedy Trial Under Due Process Clause ...61

(a) Background ...61

(b) Standard of Review ...62

(c) Analysis ...62

6. Alleged Backus Diary ...63

(a) Background ...63

(i) Mailed From Unknown Address in Omaha ...63

(ii) Backus' Deposition ...63

(iii) Handwriting ...63

(iv) Douglas Olson ...64

(v) Testimony by Private Investigator ...64

(vi) Douglas' Other Writings ...64

(vii) Consistencies of Diary With Real Events ...65

(b) Standard of Review ...65

(c) Analysis ...65

7. Motion for New Trial ...67

(a) Standard of Review ...67

(b) Ground One: Douglas Found After Trial ...67

(i) Background ...67 a. Telephone Conversation With Girlfriend ...67

b. Interview With Private Investigator and Police ...67

c. Douglas' Testimony at Hearing ...67 d. Defense Arguments at Hearing ...68

(ii) Analysis ...69

(c) Ground Two: Late Disclosure of DNA Report of Hairs on Sweater ...70

8. Cumulative Error ...71

9. Sufficiency of Evidence ...71

10. Life Sentence...72

(a) Standard of Review ...72

(b) Analysis ...72

V. Conclusion ...73

I. NATURE OF CASE

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.

II. BACKGROUND

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.

1. Night of May 31, 1989

(a) Oldson and Beard Leave Tavern Together

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 together. No one ever saw either Oldson or Beard return to the tavern that night. Beard never returned home.

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.

(b) Oldson Goes Home

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.”

(c) Possible Telephone Call to Oldson

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...