Officer Kenneth Bovasso and the FBI convict this Omaha perp?

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Officer Kenneth Bovasso and the FBI convict this Omaha perp?

Postby sw » Mon Nov 02, 2009 8:26 pm

09/22/92 STATE NEBRASKA v. DANIEL D. SCHREIN


NEBRASKA COURT OF APPEALS


Docket Number available at www.versuslaw.com

Citation Number available at www.versuslaw.com

September 22, 1992

STATE OF NEBRASKA, APPELLEE,
v.
DANIEL D. SCHREIN, APPELLANT.

Appeal from the District Court for Douglas County: Jerry M. Gitnick, Judge.

J. William Gallup for appellant.

Don Stenberg, Attorney General, and James H. Spears for appellee.

Sievers, Chief Judge, and Connolly and Miller-Lerman, Judges.

SYLLABUS BY THE COURT

1. Evidence: Jury Instructions. As a general rule, errors in the admission of evidence may be cured by an instruction from the court.

2. Juries: Verdicts. Error that does not materially influence the jury in a verdict adverse to a substantial right of the defendant is harmless.

3. Judgments: Evidence: Appeal and Error. An appellate court may affirm a judgment if the court finds that the error in admission of evidence was harmless beyond a reasonable doubt.

4. : Trial: Evidence: Convictions: Appeal and Error. In the trial of a criminal case, erroneous admission of evidence which is not cumulative may constitute harmless error beyond a reasonable doubt when a defendant's conviction is supported by overwhelming evidence which has been properly admitted or admitted without objection.

5. : Trial: Evidence: Jurors: Verdicts. Evidence in a criminal trial is overwhelming if absent the forbidden evidence, honest, fair-minded jurors might very well have brought in a not-guilty verdict.

6. Rules of Evidence. In proceedings where the statutes embodying the Nebraska rules of evidence apply, the admission of evidence is controlled by rule and not by judicial discretion, except where judicial discretion is a factor involved in assessing admissibility.

7. Trial: Witnesses: Appeal and Error. A trial court is given large discretion in determining whether or not a witness' qualification to state an opinion has been established, and such discretion will not ordinarily be disturbed on appeal unless there is an abuse of that discretion.

The opinion of the court was delivered by: Connolly

CONNOLLY, Judge.

I. INTRODUCTION

Daniel D. Schrein appeals his conviction by a jury on five counts of sexual assault of a child, a Class IV felony. See Neb. Rev. Stat. § 28-320.01 (Reissue 1989). As to each count, Schrein was sentenced to 15 months' to 3 years' imprisonment, each sentence to be served consecutively, with credit for 244 days of time served. He was found to be a mentally disordered sex offender by the trial court and was committed to one of the regional centers. Schrein now appeals. Because we find that Schrein's right to a fair trial was compromised by the admission of irrelevant, immaterial, and prejudicial evidence, we reverse the judgment and remand the cause for a new trial.

II. FACTS

Daniel D. Schrein was a pediatrician practicing in Omaha, Nebraska. For many years, he served as an organizer and coach of a sports organization for gifted athletes called The Gladiators, which sponsored teams for grade school and junior high school students.

Schrein closed his practice, and he left Omaha on August 2, 1990, with the intention of moving to Hawaii and opening a practice there. Schrein traveled from Hawaii to California when he learned that charges for sexual assault had been brought against him. On September 5, Schrein was arrested in Los Angeles by the FBI. Schrein was charged with five counts of sexual assault of a child.

In addition to the 5 victims, the State's case included 10 additional witnesses who testified to uncharged misconduct similar to that on which the 5 charges were based. A motion in limine to exclude the testimony of these witnesses was overruled on the grounds that their testimony established intent. The appellant did not assign as error the admission of the testimony of the 10 witnesses to the uncharged conduct. Therefore, the overruling of the motion in limine is not considered in this appeal.

The incidents to which the 5 victims and 10 additional witnesses testified occurred over a period of 15 years, from 1975 to 1990. In general, the victims and witnesses testified that Schrein would diagnose that they were suffering from a rash or reddening of the penis, would have them lie on the examining table, and would then apply Neosporin Ointment to the end of the penis. They further testified that Schrein would then manipulate the penis for 5 to 10 minutes, or until ejaculation. He would then clean up the ejaculate with a tissue.

The medical records of most of the victims and witnesses, which records were prepared by Schrein, contained the diagnosis of meatitis, an inflammation or irritation of the opening of the penis. Some were also diagnosed as having meatal stenosis, a narrowing of the opening of the penis.

Several of the victims and witnesses testified that Schrein would hold them on his lap and talk with them about school, life, growing up, girls, masturbation, and whether they had ever had sex with males. B.S., one of the five victims, testified that while Schrein spoke of these subjects, he stroked the inside of B.S.' thigh and fondled the victim's penis. C.M., 1 of the 10 additional witnesses, testified to the only alleged incident that did not occur in the context of medical treatment in Schrein's office. C.M. said that while staying with Schrein in a hotel on a trip to Overland Park, Kansas, Schrein touched C.M.'s genitals through a pair of cutoff jeans C.M. was wearing. Schrein denied touching C.M.

The State's case included the testimony of Schrein's longtime nurse, Myra Langenfeld. Langenfeld testified that on two occasions, in 1975 and 1977, Schrein had been in an examining room with an adolescent male patient for an inordinately long time. Langenfeld testified, regarding one of those occasions, that when Schrein left the examining room, his face appeared "flushed." Langenfeld said she went into the room to clean it for the next patient and found a tissue in the wastebin. She testified, over objection, that she had smelled the tissue and detected the odor of semen.

Langenfeld also testified, over objection, that there was a picture of a male adolescent wearing only low-cut jeans in one of Schrein's examining rooms. Langenfeld thought this picture had sexual overtones. Apparently, it had been selected by Schrein's interior decorator, and it was sold with the other furnishings of his office at the time he anticipated moving his practice to Hawaii. The picture was not in evidence at trial.

The State's medical witness, Dr. Donald T. Glow, testified that meatitis and meatal stenosis are commonly associated with infants because of the presence of urine in their diapers. He said that in his practice, he had never observed meatitis in adolescents. However, on cross-examination, Dr. Glow admitted that he was a hospital administrator and that he had not practiced pediatrics for 13 years.

Schrein's defense was based on the theory that he had touched the adolescents only as a legitimate incident to treatment. Schrein testified that he had applied the Neosporin to adolescents who were suffering from meatitis.

Dr. Phillip Wayne Marsh, a witness for Schrein, testified that meatitis is often asymptomatic and that the normal treatment would be application of Neosporin to the opening of the penis. At least one of Schrein's patients, R.W., who was 14 years of age when he was treated, testified that Schrein had successfully treated him for meatal stenosis and prostatitis, inflammation of the prostate gland, caused by meatitis. Dr. Marsh testified that diagnosing 10 to 15 adolescents as having meatitis over the 26 years that Schrein had practiced would not be unusual and that he himself had observed the condition in adolescents.

Schrein testified that he regularly had his patients sit on his knee in order to examine the spine, knee, and shin. He said that he regularly talked with his adolescent patients, both male and female, about the changes incident to puberty.

The jury returned a verdict of guilty on all five counts. Judgment was entered, and Schrein was sentenced on May 15, 1991. Schrein then perfected a timely appeal.

III. ASSIGNMENTS OF ERROR

On appeal, Schrein assigns a number of errors, but we find it necessary to address only the following three: (1) The district court erred in admitting exhibit 60, a magazine article on child sexual abuse; (2) the district court erred in allowing Langenfeld to express an opinion concerning the odor of semen, because her opinion lacked the necessary foundation; and (3) the district court erred in allowing Langenfeld to express an opinion concerning a picture of a young man that hung in Schrein's examining room. The first assignment of error is discussed in parts 1 and 2 of the analysis. The second and third assignments of error are discussed in part 3 of the analysis.

IV. ANALYSIS

1. Admission of the Magazine Article

Schrein moved for a mistrial on the basis of the admission into evidence of exhibit 60, a five-page article in Redbook magazine coauthored by a professor of psychiatry and his wife and titled, "The Child Abuser: How Can You Spot Him?" The article begins with a statement in large, boldface type:

He's a man you trust. He's a man your children trust. He's a teacher, a coach, a Cub Scout leader--someone your family knows well. And he's much more likely to sexually abuse little boys than little girls, according to a landmark study of 403 sex offenders. In this shocking report, the doctor who headed the research team offers a profile of the typical child abuser--and tells you how to protect your children.

Gene G. Abel and Nora Harlow, The Child Abuser: How Can You Spot Him?, Redbook, Aug. 1987, at 98. Underlined portions of the article say that most molesters are male and that they usually molest male children. The article attacks the stereotype of the demented loner, claiming instead that child molesters are often otherwise exemplary citizens:

Most of us think that a child molester is a rather slimy individual--a stranger in town, sitting in his car near a schoolyard, luring children with candy. Our findings reveal that, on the contrary, the child molester is not a stranger, but is someone we know well. He often is a man we trust, a man our children trust.

Many child molesters try to move themselves into positions or occupations within the community that will allow them to spend time alone with children without attracting much notice. Molesters often become youth ministers, day-care workers, Boy Scout leaders, teachers, Big Brothers and pediatricians.

(Emphasis supplied.) Id. at 99.

According to the article, child-victims are often reluctant to come forward because the molester threatens them or because the molester chooses his victims carefully, selecting those who will obey adults, those who will keep secrets, or those whose parents are unquestioningly trustful of the molester. The authors say that when victims do come forward, the typical societal reaction is to blame the victim and reject the possibility that an erstwhile pillar of the community could be a child molester.

The article was introduced by the State for the purpose of rehabilitating a witness, Sgt. Kenneth Bovasso. On cross-examination, Bovasso was asked the following questions by defense counsel:

Q- . . . Didn't you talk to [M.M., the mother of one of Schrein's patients who was not a witness]?

A- Yes, I said I did, yes.

Q- Wasn't there some Discussion with her about pedophiles?

A- Yes.

Q- Didn't you give her literature on pedophiles?

A- Yes, I did.

Q- Didn't you imply that Dr. Schrein was a pedophile?

A- I told her that we--

Q- Just answer yes or no. Did you tell her that Dr. Schrein was a pedophile?

A- No.

Q- Did you make that implication?

A- I-- No.

Q- Why did you give her literature on pedophiles?

A- Because we were investigating a case possibly of that nature.

Q- Okay. And you were convinced and told her that Dr. Schrein was a pedophile; isn't that true?

A- I didn't tell her that Dr. Schrein was a pedophile.

On redirect, the State offered exhibit 60, with the following foundational examination to show its relevance:

Q- . . . Officer, did you give that article to [M.M.]?

A- Yes.

Q- Did you give it to anybody else connected to the investigation?

A- Yes.

Q- Do you know who else or how many others?

A- Several others, but I know [another mother] got a copy of it.

The trial court stated, "[The article] has nothing to do with whether the doctor's guilty or innocent of these charges, but it has everything to do with what the officer did in his interviews." However, the court believed Bovasso's credibility as a witness was called into question by the implication during cross-examination that Bovasso had been trying to stir up potential witnesses with inflammatory literature on pedophilia. The court received the exhibit to allow the State to explain the materials that were distributed by Bovasso.

Schrein repeatedly objected to exhibit 60 on relevancy and moved for a mistrial on grounds of its admission. After renewing his objection on relevancy, Schrein withdrew his objection to a court-drafted limiting instruction, which was presented to the jury.

The threshold question on appeal, then, is whether the trial court abused its discretion by admitting exhibit 60 over Schrein's relevancy objection. "'There are two components to relevant evidence: materiality and probative value.'" State v. Baltimore, 236 Neb. 736, 740, 463 N.W.2d 808, 812 (1990). Evidence is relevant if it has a tendency to make the existence of a fact that is of consequence more or less probable than it would be without the evidence. Neb. Evid. R. 401, Neb. Rev. Stat. § 27-401 (Reissue 1989). The factual assertion by the State that the article was noninflammatory was made more or less probable by offering into evidence the article itself. However, as indicated above by Baltimore and rule 401, to be relevant, evidence must be not only probative, but also material. "'Materiality looks to the relation between the propositions for which the evidence is offered and the issues in the case.'" Baltimore, 236 Neb. at 740, 463 N.W.2d at 812. Evidence is material only if offered to prove "a matter in issue," a matter "within the range of the litigated controversy. Id. Bovasso admitted during cross-examination that he had passed out literature to parents of potential witnesses. On redirect, the State offered exhibit 60 to prove the noninflammatory content of the pedophilia literature distributed by Bovasso, thereby repairing supposed damage to Bovasso's credibility during the exchange with defense counsel detailed above. The important fact was that Bovasso passed out literature on pedophilia. Beyond that, the exact wording of the literature had perhaps an infinitesimal impact on the credibility of Bovasso and had no material value to any issue of consequence in the case.

Bovasso, his credibility, and the nature of the literature he distributed were not facts of consequence in this case. They were not matters in issue. They were not within the range of the litigated controversy. The testimonial evidence given at trial contained the factual evidence of consequence. Evidence concerning factual questions about the literature Bovasso passed out was irrelevant because matters related to Bovasso's distribution of literature were not material facts on which the case turned.

Even if a colorable argument could be made for exhibit 60's relevancy to a material issue in the case, the article was of dubious probative value. "'The probative value of a piece of evidence involves a measurement of the degree to which the evidence persuades the trier of fact that the particular fact exists and the distance of the particular fact from the ultimate issues of the case.'" State v. Bostwick, 222 Neb. 631, 639, 385 N.W.2d 906, 912 (1986) (quoting Andrew K. Dolan, Rule 403: The Prejudice Rule in Evidence, 49 S. Cal. L. Rev. 220 (1976)). Accord, State v. Wilson, 225 Neb. 466, 406 N.W.2d 123 (1987); State v. Clancy, 224 Neb. 492, 398 N.W.2d 710 (1987). Again, offering the article itself obviously made more or less probable the factual assertion that the article was noninflammatory. However, as the trial court noted, the inflammatory or noninflammatory nature of the article was a factual question completely unrelated to the ultimate issue in the case.

Had it been material and probative, exhibit 60 still should not have been admitted into evidence because relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, see Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403 (Reissue 1989), and the article's dubious probative value was dwarfed by its prejudicial effect. Unfair prejudice is "'a tendency to suggest a decision on an improper basis.'" Wilson, 225 Neb. at 471, 406 N.W.2d at 127. The article singles out, among others, the pediatrician, the well-respected professional who inspires and cultivates the trust of his patients, as the classic child molester. The prejudicial effect of the exhibit was magnified by the article's Discussion of why complaints against erstwhile exemplary citizens are slow to materialize, as was the case with Schrein. The use of exhibit 60 in this kind of case for the purpose of rehabilitating a tangential witness on a tangential factual question was akin to using a sledgehammer to swat a fly on the kitchen window. The equitable balance between probativeness and prejudice that rule 403 seeks to preserve was shattered by the admission of exhibit 60.

The trial court abused its discretion and erred by admitting exhibit 60, because the article was irrelevant to any material issue of fact, and its tendency to create unfair prejudice substantially outweighed whatever probative value it may have possessed.

2. Harmless Error Analysis

Despite a finding of abuse of discretion, an appellate court may affirm a trial court judgment if the error in admission of evidence was harmless beyond a reasonable doubt. See State v. Christian, 237 Neb. 294, 465 N.W.2d 756 (1991).

(a) Cumulative Evidence

The error in this case is not harmless based on a cumulative evidence theory because exhibit 60 was not offered to prove a point on which other evidence had been offered. See State v. Coleman, 239 Neb. 800, 814, 478 N.W.2d 349, 358 (1992) ("'cumulative evidence'" means tending to prove the same point to which other evidence has been offered). Exhibit 60 was the only piece of evidence offered to rehabilitate Bovasso's credibility.

(b) Impact on Jury Rendered Harmless by Overwhelming Evidence

Error that does not materially influence the jury in a verdict adverse to a substantial right of the defendant is harmless. State v. Pettit, 233 Neb. 436, 445 N.W.2d 890 (1989). Error that is by itself not harmless can be rendered harmless by overwhelming evidence that was properly admitted. Coleman, supra. Coleman and Pettit followed the U.S. Supreme Court's approach in Harrington v. California, 395 U.S. 250, 89 S. Ct. 1726, 23 L. Ed. 2d 284 (1969), for determining whether error in admission of evidence in a criminal trial is harmless. Defendant Harrington, who was white, and his three black codefendants were convicted of first degree murder and attempted robbery. Each of the codefendants confessed, and the error at trial consisted of the admission of references in two of the confessions to the "white guy," which the Court assumed identified Harrington. Admission of the codefendants' confessions was a violation of Harrington's Sixth Amendment right of confrontation under Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968), but the Court held that the Bruton violation was harmless error because the improperly admitted evidence was cumulative and that the remaining evidence against Harrington was so overwhelming in showing guilt that the conviction need not be set aside.

Overwhelming evidence can render harmless an admission error, but the standard is rigorous. The existence of legally "sufficient evidence on which the could have been convicted without the evidence complained of" does not satisfy the standard for overwhelming evidence. See Fahy v. Connecticut, 375 U.S. 85, 86, 84 S. Ct. 229, 11 L. Ed. 2d 171 (1963). "The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction." 375 U.S. at 86-87. Evidence is legally overwhelming only if the properly admitted evidence is so convincing that there is no reasonable possibility that the improperly admitted evidence affected the jury's decision.

Though the State presented substantial evidence against Schrein, with Fahy, Harrington, and Coleman as our guides, we cannot characterize the evidence against Schrein as overwhelming, nor can we safely say under Pettit that the admission error did not materially influence the jury to convict Schrein. To the contrary, Schrein presented substantial evidence that he touched the boys only for medical purposes and that he never caused any of them to ejaculate. Evidence was presented that the alleged victims were at Tanner stages I to III, developmental stages of the male sex organs at which boys are incapable of ejaculating. Dr. Marsh testified that it was not unusual to see two to three patients a year who suffered from meatitis. Schrein himself took the stand in his own defense. Essentially, it was his word regarding his intent in performing the acts at issue against the word of the State's witnesses. The jury had to choose between two theories of essentially the same set of events, each theory bolstered by testimonial evidence. The magazine article written by presumed experts in the field may very well have been the crucial factor in negating a reasonable doubt in the mind of a juror.

This is not a Harrington case involving an evidentiary landslide in favor of one party. This case is analogous to Chapman v. California, 386 U.S. 18, 25-26, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967), described by the Court as a case "in which, absent the . . . forbidden comments, honest, fair-minded jurors might very well have brought in not-guilty verdicts." Without the article, and considering the trial record as a whole, it might well have been very difficult for a juror to push beyond the barrier of reasonable doubt and convict Schrein.

As a general rule, errors in the admission of evidence may be cured by an instruction from the court. State v. Klingelhoefer, 222 Neb. 219, 382 N.W.2d 366 (1986). Despite the limiting instruction of the trial court regarding exhibit 60, the effect of the admission of the article into evidence was to allow an evidentiary Trojan horse into the jury room. The State was able to slip two expert witnesses, the coauthors of the article, into the jury room as de facto rebuttal evidence witnesses. These "bonus" witnesses pontificated in print to the jurors about the profile of the typical child molester, a profile that arguably fit Schrein. Free from the rigors of cross-examination and of any foundational review of their qualifications and the bases for their opinions, the coauthors undermined two critical elements of Schrein's defense: (1) the seemingly inexplicable contrast between the nature of the criminal charges and the unassailable moral and professional character of the appellant and (2) the suspiciously long delay in bringing the complaints. Therefore, we hold that it was not harmless error for the trial court to admit exhibit 60, and we reverse the district court's judgment of conviction.

3. Langenfeld's Testimony

Schrein assigns as error the trial court's admission into evidence of Langenfeld's testimony regarding semen on tissues in the wastebin of Schrein's examining room and her testimony that a picture in Schrein's examining room was "sexy" and "suggestive."

In proceedings where the statutes embodying the Nebraska rules of evidence apply, the admission of evidence is controlled by rule and not by judicial discretion, except where judicial discretion is a factor involved in assessing admissibility. State v. Timmerman, 240 Neb. 74, 480 N.W.2d 411 (1992). Exercise of judicial discretion is authorized when assessing the qualification of a witness. Neb. Evid. R. 104, Neb. Rev. Stat. § 27-104 (Reissue 1989). A trial court is given large discretion in determining whether or not a witness' qualification to state an opinion has been established, and such discretion will not ordinarily be disturbed on appeal unless there is an abuse of that discretion. Schmidt v. J. C. Robinson Seed Co., 220 Neb. 344, 370 N.W.2d 103 (1985).

(a) Semen

Langenfeld's testimony regarding semen was admissible under Neb. Evid. R. 701, Neb. Rev. Stat. § 27-701 (Reissue 1989). The statute allows nonexpert opinion testimony when the opinion is "(a) rationally based on the perception of the witness and (b) helpful to a clear understanding of [the witness'] testimony or the determination of a fact in issue." Langenfeld's opinion that the tissues were covered with semen was rationally connected to her perception. "The rational connection test means only that the opinion or inference is one which a normal person would form on the basis of the observed facts." 3 Jack B. Weinstein & Margaret A. Berger, Weinstein's Evidence P701[02] at 701-18 (1992). Langenfeld's opinion was also helpful to a determination of a fact in issue, namely, whether Schrein touched the victims with the intent of bringing them sexual gratification.

(b) Picture

Though relatively insignificant, we briefly discuss the assignment of error regarding Langenfeld's opinion about the picture in Schrein's office, for the benefit of the trial court in the event of a retrial. As to the picture of the adolescent clad in low-cut jeans, we cannot conclude that Langenfeld's opinion was rationally based on her perception, since the picture was unavailable to the trier of fact. The tendency of the testimony about the picture to create unfair prejudice substantially outweighs any probative value it might arguably have. The court should have excluded the testimony concerning the picture.

V. CONCLUSION

The judgment of the district court is reversed, which reversal results, first, from the unbridled prosecutorial zeal in offering the Redbook article (with strategically placed underlining) and, second, from the failure of the trial court to intercept the magazine article, which was of dubious relevancy, but was obviously extremely prejudicial to the appellant, Schrein, and potentially highly inflammatory to the jury. A prosecuting attorney has a duty to conduct his or her portion of a criminal trial in a fair manner. See, State v. Costello, 199 Neb. 43, 256 N.W.2d 97 (1977); State v. Davis, 185 Neb. 433, 176 N.W.2d 657 (1970).

We must vigilantly safeguard a defendant's right to a fair trial and intervene where that right has been compromised, as happened here.

REVERSED AND REMANDED FOR A NEW TRIAL.

19920922

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lazy

Postby sw » Tue Nov 03, 2009 8:57 am

I got lazy with the above post. I had wanted to throw it in because I thought it odd that this Omaha peditrician would leave the state in 1990 and at the same time, the FBI and the OPD would go after him for sex crimes of youth.

Why him and not the others? Were they trying to show the people of Omaha that they were legit and hadn't just screwed the justice system with Franklin?
sw
 
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