Petition for a Writ of Certiorari — Bittner v. Nebraska

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upreme Court, U. §,

ILE Copy FILED

JUL 3 1972

MICHAEL RODAK, JR..CLERK

In The

Supreme Court of the Ruited States

OCTOBER TERM 1972

—f}.

OE scceitdakiis

rey

GARY DEAN BITTNER,

Petitioner,

vs.

THE STATE OF NEBRASKA,

Respondent.

——- %

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF NEBRASKA

Leonarp P. VYHNALEK

212 No. Dewey

Box 548

North Platte, Nebraska 69101

Phone: 308-532-5090

Attorney for Petitioner

COCKLE PRINTING CO.. 1822 St. Marv’s Ave., Omaha

carats)

TABLE OF CONTENTS

Pages

Citations to Opinions Below 2

Jurisdiction 2

Questions Presented for Review 2

Constitutional Provisions and Statutes Involved ...... 3

Statement of the Case ........ 3

Reasons for Granting a Writ of Certiorari 2... «7

Conclusion 12

Appendix ‘‘A’’ ROPES ~ he dO he OP RE AER OC OO 14

Appendix ‘‘B’’—Constitution

Article VI 21

Article XIV ~ oe

Appendix ‘‘B-1”’

BE 123 :21-25; 124:1-18 . 24

BE 129 :19-25; 130 :1-19 24

Appendix ‘*C”

Article VI 25

Article XTV 26

Assignment of Errors 27

Appendix ‘*D”

Instruction No. 15 28

TABLE OF CONTENTS—Continued

CASES CITED

Pages

Alford v. United States, 282 U. S. 687, 75 L. Ed. 624,

51 S. Ct. 218 12

Brookhart v. Janis, 384 U. S. 1, 16 L. Ed. 2d 314,

86 S. Ct. 1245 12

Daggett v. State, 114 Neb. 238, 206 N. W. 735 .W.. 17

Hoffman v. United States, 341 U. S. 479, 71 S. Ct.

814, 95 L. Ed. 1118 16

Jahnke v. State, on rehearing, 68 Neb. 181, 104 N. W.

154 20

People v. Brown, 136 Cal. App. 2d 244, 288 P. 2d 984 17

People v. Vatek, 71 Cal. App. 453, 236 P. 163 0. 17

Pointer v. Texas, 380 U. S. 400, 13 L. Ed. 2d 923,

85 S. Ct. 1065 : 11, 12

Pricer v. Lincoln Gas & Electric Light Co., 111 Neb.

209, 196 N. W. 150 17

Rains v. State, 173 Neb. 586, 114 N. W. 2d 399, cert.

den., 371 U. S. 967, 83S. Ct. 549, 9 L. Ed. 2d 538... 19

Redmon v. State, 150 Neb. 62, 33 N. W. 2d 349 Ww. 18

Smith v. State of Ilinois, 390 U. S. 129, 19 L. Ed. 956,

88 S. Ct. 748 ....... 3 10, 11

Smith v. State, 169 Neb. 199, 99 N. W. 2d 8 ................ 19

Smith v. United States, 331 F. 2d 265 (8th Cir., 1964),

cert. den., 379 U. S. 824 18

iii

TABLE OF CONTENTS—Continued

Pages

State v. Cox (Mo.), 352 S. W. 2d 665 17

State v. Gamron, 186 Neb. 249, 182 N. W. 2d 428 ...... . 20

State v. Gress, 250 Minn. 337, 84 N. W. 2d 616 000. 17

State v. Peele, 67 Wash. 2d 893, 410 P. 2d 599 0. 17

State v. Wilson, 174 Neb. 86, 115 N. W. 2d 794 2000... 18

Swogger v. State, 116 Neb. 563, 218 N. W. 416 WW. 18

United States v. Cardillo, 316 F. 2d 606 (2d Cir., 1963) 18

STATUTES CITED

98 Usp. C., 1257 (3) D

Section 25-1210, R. R. S. 1948, Reissue of 1964............ 2, 5, 6,

16, 17, 25

In The

Supreme Court of the Ruited States

OCTOBER TERM 1972

ep een id

GARY DEAN BITTNER,

Petitioner,

vs.

THE STATE OF NEBRASKA,

Respondent.

ray

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF NEBRASKA

ry.

Petitioner prays that a writ of certiorari issue to

review the judgment of the Supreme Court of the State

of Nebraska entered in the above entitled case on April

7, 1972.

CITATIONS TO OPINIONS BELOW

The opinion of the Supreme Court of the State of

Nebraska entered on April 7, 1972, is printed in Appendix

‘*A’’ hereto, infra p. 14, and is reported in 188 Neb,

298, — N. W. 2d —, — S8.C.J. —.

JURISDICTION

The judgment of the Supreme Court of Nebraska was

entered on April 7, 1972. The jurisdiction of this Court

is invoked pursuant to the provisions of 28 U.S. C., 1257

(3). No motion for a rehearing was had and no exten-

sions of time have been sought or granted with regard

to filing this petition for a writ of certiorari.

QUESTIONS PRESENTED FOR REVIEW

Whether the petitioner was denied confrontation of

the witnesses against him and denied the right to cross-

examination under and pursuant to the Sixth and Four-

teenth Amendments to the Constitution of the United

States; whether petitioner was denied his right to con-

frontation of the witnesses against him and his right

to cross-examination of such witnesses pursuant to the

Sixth and Fourteenth Amendments to the Constitution

of the United States where the principal witness against

said petitioner invoked her privileges pursuant to Sec-

tion 25-1210, R. R. S. 1943, Reissue of 1964, that »rovides

as follows:

‘‘Witnesses; answer subjecting to criminal liability;

disgracing answer; privilege. When the matter

sought to be elicited would tend to render the wit-

ness crimirally liable, or to expose him to public

ignominy, he is not compelled to answer, except as

provided in Section 25-1214.’’

LY.

—

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

The constitutional provisions involved are United

States Constitution, Amendments Six and Fourteen, and

are found in Appendix ‘‘B’’ infra p. 21.

The Nebraska Statutes involved are Section 25-1210,

R.R.S. 1948, Reissue of 1964, and Section 25-1214,

R, R. 8S. 1943, Reissue of 1964, and are found in Appendix

“B’’, infra p. 23.

STATEMENT OF THE CASE

The petitioner herein was convicted by a jury on the

23rd day of June, 1971, in the District Court in and for

Lincoln County, Nebraska of unlawfully possessing a

forged instrument. At the time of trial Rachel Ann Wil-

liams, an alleged accomplice of the petitioner, testified

that she and the petitioner, Gary Dean Bittner, came to

Lincoln County, Nebraska on April 2, 1971, by automo-

bile and that their luggage contained money orders. There

was a shirt in one of the items of luggage and the shirt

belonged to the petitioner. When the pair first got to

North Platte, Nebraska, cn the evening of April 2, they

went to the Tomahawk filling station. They then went

to another small filling station and then to the Skelly

filling station where the accomplice, Miss Williams, went

into the restaurant and attempted to cash a travelers’

money order check. The petitioner remained in the car.

After cashing the check the accomplice, Miss Williams,

went back to the car and said she gave the money to the

petitioner. She then went to the restroom and changed

her clothing, and after that the two went to another {fill-

ing station. They then went to the Safeway Store with

the petitioner driving. At the Safeway Store the ac-

complice went in and tried to cash one of the money or-

ders. The petitioner remained in the car. The accom-

plice left the Safeway Store and went to the car and

thought they had been caught. The petitioner started to

drive away and the two were arrested by the Nebraska

State Safety Patrol and were taken to the Nebraska

State Safety Patrol Building. The witness gave certain

statements to the State Patrol inculpatory of the peti-

tioner and exculpatory of herself. During the time of

trial, and upon cross-examination of the alleged accom-

plice, Rachel Ann Williams, relied upon her Fifth Amend-

ment rights to remain silent and said that all the state-

ments she had made prior to the time of trial were untrue

and that her statements at the time of trial implicating

the petitioner were true.

During the course of the testimony of the principal

witness, the accomplice, testified that she and petitioner

came to Lincoln County, Nebraska where they attempted

to pass checks and were then arrested.

Upon her cross-examination, the accomplice witness,

whose court-appointed counsel was present in Court dur-

ing the time she was testifying, took her Fifth Amend-

ment privileges against self-incrimination and further

invoked her rights under Section 25-1210, R.R.S. 1943,

Reissue of 1964, with regard to giving testimony which

would subject her to possible criminal liability and pub-

lic abuse and ignominy. During the course of her testi-

mony the witness was removed from the Courtroom dur-

ing a recess for the purposes of having her cautioned with

regard to her constitutional rights against self-inerimina-

tion on the chance she could possibly be charged with

offenses in counties other than Lincoln County, Nebraska.

The Court allowed such a recess and the witness was

counseled by her attorney. Upon a resumption of the

trial the witness again continued taking her Fifth Amend-

ment privileges and refused to answer questions such as:

Where the two parties were going at the time of the com-

mission of the alleged offense; where the two parties

were going from North Platte, Lincoln County, Nebraska;

questions concerning the route which was taken to North

Platte; where they purchased gas and oil and what the

witness’ occupation was in Omaha, Nebraska where she

lived; whether or not the witness was a prostitute; and

also any questions concerning activity outside of Lincoln

County, Nebraska, were not allowed and the witness was

allowed to take her privileges pursuant to the Fifth

Amendment to the Constitution of the United States.

The witness further refused to answer questions concern-

ing the time that the parties left Omaha and she did not

answer questions as to how she earned her money.

The right to cross-examine was raised by the de-

fense by a motion to compel the witness, Rachel Ann Wil-

liams, to answer the questions placed before her on cross-

examination on the grounds that by the witness taking

her Fifth Amendment privileges the right to confronta-

tion and the right to cross-examination was being denied

the defendant (BE 123:21). See Appendix ‘‘B-1’’ infra

p. 24. This motion was overruled by the Court and

also the defense made an offer-of-proof to the effect

that in the event that the witness, Rachel Ann Williams,

was allowed to testify in response to questioning con-

cerning her alleged occupation as a prostitute she would

answer ‘‘yes’’ and pointed out to the court that the

defense would be allowed to go into any matters that re-

late to the Witness, her veracity, truthfulness, compe-

tency as a witness, and again further offered proof on the

grounds that the defendant was being denied effective

confrontation on cross-examination, all in violation of his

constitutional rights (BE 129:19). See Appendix ‘‘B-1”

infra pp. —. Court-appointed counsel, on behalf of the

witness, objected to the offer of proof under the pro-

visions of Nebraska Reissue Revised Statute, Section

25-1210, in that the matter sought to be elicited would

tend to render the witness criminally liable or expose

her to public ignominy. The objections to the offer-of-

proof both by the State and the court-appointed attorney

for the witness were sustained.

Also with regard to Exhibit No. 7, allegedly a sweater

of the petitioner, admitted at the time of trial, the wit-

ness refused to answer questions as to whether or not

the petitioner had ever worn the sweater again invoking

her Fifth Amendment rights.

All of the assignments of error submitted to the

Supreme Court of the State of Nebraska were preserved

by the petitioner’s motion for a new trial with the trial

court and the motion for a new trial prior to appeal was

overruled by the trial court.

The petitioner assigned as error on his appeal to the

Supreme Court of the State of Nebraska that it was

error for the Court to allow Rachel Ann Williams, the

accomplice, to give testimony in the case and allow her

to invoke her Fifth Amendment rights on cross-examina-

tion thereby curtailing the defendant’s rights to cross-

examination and confrontation of witness. Further, these

questions were raised as being violative of the petition-

er’s Sixth and Fourteenth Amendment Rights under the

Constitution of the United States. The assignments of

error in the Supreme Court of Nebraska are set forth in

Appendix ‘‘C’’, infra p. 27.

—— 4)

REASONS FOR GRANTING A WRIT OF CERTIORARI

The federal question concerning the restriction of

cross-examination of a prosecution witness was not de-

cided by the Nebraska Supreme Court in accordance with

previous holdings of the United States Supreme Court

TIPPER OE Or I a fi

EE ee

7 Me

and, further, the question concerning impeachment on

moral grounds has not been directly decided by the United

States Supreme Court and a division of opinion on this

question exists between the various jurisdictions. To

deny impeachment solely on moral grounds or grounds

which may be of both a moral and collateral nature, and

to deny cross-examination on details surrounding the

commission of an alleged crime is to further deny a

criminal defendant the right of cross-examination and

confrontation under the Sixth and Fourteenth Amend-

ments to the Constitution of the United States.

1. In the Nebraska Supreme Court’s opinion, Ap-

pendix ‘‘A’’, infra p. 14, the Court sets forth as follows:

‘*She (the prosecuting witness) was represented when

testifying by a court-appointed attorney and upon

his advice refused to answer certain questions pro-

pounded on cross-examination on the grounds that

the answers would tend to incriminate her. No pos-

sible prejudice appears except in regard to the ques-

tion of whether the witness was a prostitute.’’

Further, the Court in its opinion at p. 14 sets forth:

‘‘Defendant insists that his right to confrontation

was denied by the restriction of cross-examination

in the area above mentioned. We cannot agree. The

restrictive questioning dealt only with the collateral

matter bearing solely on the credibility of the wit-

ness, not upon facts brought out on direct examina-

tion and not on facts pertaining to the guilt or inno-

cence of the defendant.’’

In regard to the cross-examination of the prosecuting

witness it appears from the record in this case that the

defense attempted to draw from the prosecuting witness

certain details leading up to the commission of the alleged

crime and surrounding the commission of the alleged

crime and also attempted to elicit certain details about

the prosecuting witness’ background and personal life

primarily with regard to her place of residence, her em-

ployment, and how she earned her money. These ques-

tions did at one point in the trial settle around whether

or not the witness earned her living as a prostitute.

However, the cross-examination was twofold: 1. Directed

toward details leading up to and surrounding the crime,

and 2. With regard to her personal background which,

of course, reflects on her credibility and veracity.

The right to cross-examination extends not only to

the testimony of the witness as given orally with regard

to the offense allegedly committed but also goes to his

appearance, background, place of residence, the manner

in which he testifies and general demeanor while testify-

ing. Since not only is the testimony of the witness but

his entire personality and person presented to the jury

then by necessity all of these factors constitute confronta-

tion. In fact, in the instant case the jury was instructed

in Instruction No. 15:

“You are the sole judges of the credibility of the

witnesses and the weight to be given to their testi-

mony. In determining the weight which the testi-

mony of the witnesses is entitled to receive you

should consider * * * 2. Their conduct and demeanor

while testifying.”

The total instruction as given to the jury is found in

Appendix ‘‘D’’, infra p. 28. Further, the Nebraska

Supreme Court in dealing with the question of credibility

of the witness and the right to cross-examination said

at page 300 of the opinion:

‘*As usual, in such cases the record fails to throw

any light on the situation of the witness in this re-

spect.’’ (prostitution)

Nowhere in the Sixth Amendment is there provision

made that a criminal defender must collaterally attack

a witness as to credibility and as to the material aspects

of testimony given but the right is given to confrontation

and cross-examination.

In regard to the right of cross-examination of prose-

euting witnesses, the Supreme Court of the United States

said in Smith v. State of Illinois, 390 U. S. 129, 19 L. Ea.

956, 88 S. Ct. 748:

‘‘In the present case there was not, to be sure, a

complete denial of all right of cross-examination but

the petitioner was denied the right to ask the prin-

cipal prosecution witness either his name or where

he lived, although the witness admitted that the name

he had first given was false. Yet when the credibility

of a witness is in issue, the very starting point in

‘exposing falsehood and bringing out the truth’

through cross-examination must necessarily be to

ask the witness who he is and where he lives. The

witness’ name and address open countless avenues

of in-court examination and out-of-court investiga-

tion. To forbid this most rudimentary inquiry at the

threshold is effectively to emasculate the right of

cross-examination itself.’’

The Court said further:

‘*The extent of cross-examination with respect to an

appropriate subject of inquiry is within the sound

discretion of the trial court. It may exercise a rea-

sonable judgment in determining when the subject

is exhausted * * *. But no obligation is imposed on

the court, such as that suggested below, to protect a

witness from being discredited on cross-examination,

short of an attempted invasion of his constitutional

protection from self incrimination, properly invoked.

* * #))

Further, the opinion of the Nebraska Supreme Court,

at page 300 thereof, sets forth:

‘‘The courts are divided upon the question of wheth-

er or not impeachment on moral grounds is permis-

sible.’’ Citing the case of State v. Cox, (Mo.) 352

S. W. 2d 665.

Nebraska follows the rule that impeachment on moral

grounds may be undertaken only if the case on its merits

involves the question.

It would appear here that since confrontation and

cross-examination are integral parts of the Sixth Amend-

ment to the Constitution of the United States as the Court

said in the ease of Smith v. Illinois, supra, citing the care

of Pointer v. Texas, 380 U. S. 400, 13 L. Ed. 2d 923, 85

S. Ct. 1065:

‘Tt cannot seriously be doubted at this late date that

the right of cross-examination is included in the

right of an accused in a criminal case to confront the

witnesses against him. * * *” |

Since the various jurisdictions are divided on tho

question of whether or not a witness may be impeached

solely upon moral grounds this question should be re-

viewed by the United States Supreme Court as a denial

of the right to impeach on such grounds would be an un-

due restriction of the right to cross-examination. Fur-

ther, at page 299 of the opinion of the Nebraska Supreme

Court in the instant case, the statement is made:

‘«* * * that no possible prejudice appears * * *.’’

We submit to the Court that a showing of prejudice is

not necessary and the denial of cross-examination and

confrontation in that to deny such in and of itself is

prejudice of constitutional magnitude. As the Court said

in the case of Alford v. Untted States, 282 U. 8. 687, 75

L. Ed. 624, 51 S. Ct. 218:

‘‘Prejudice ensues from a denial of the opportunity

to place the witness in his proper setting and put

the weight of his testimony and his credibility to a

test without which the jury cannot fairly appraise

them * *# m9

Further, the United States Supreme Court said in

the case of Pointer v. Texas, supra, citing the case of

Brookhart v. Janis, 384 U. S. 1, 16 L. Ed. 2d 314, 86

S. Ct. 1245:

‘‘Kiven more recently we have repeated that a denial

of cross-examination without waiver would be con-

stitutional error of the first magnitude and no amount

of showing of want of prejudice would cure it.’’

CONCLUSION

The petitioner here was not permitted to cross-ex-

amine the principal prosecuting witness against him on

matters surrounding the commission of the alleged crime

and details leading up to the commission of said crime.

Further, he was denied the right to go into the question-

ing of the chief prosecution witness as to her background,

place of employment, and the fashion in which she earned

her money. Therefore, he was denied the right to con-

frontation and cross-examination within the meaning of

the Sixth Amendment of the Constitution on appeal of

the United States and a Writ of Certiorari should be

granted herein.

Respectfully submitted,

Leonarp P. VyYHNALEK

Of Beatrry, Morcan & VYHNALEK

P. O. Box 548

212 No. Dewey Street

North Platte, Nebraska 69101

Attorneys for Petitioner

APPENDIX “A”

STATE VS. BITTNER

(Filed April 10, 1972, Clerk District Court)

38304 Filed April 7, 1972

1. The Constitutions of Nebraska and most of the

United States provide that no person shall be compelled

to give evidence against himself of an incriminating

nature.

2. By statute, a witness cannot ordinarily be com-

pelled to answer when to do so would expose him to

public ignominy.

3. The trial court, in the exercise of a sound discre-

tion, must determine whether a witness’ claim of privi-

lege is justifiable.

4. The eredibility of a witness in a criminal case

eannot be impeached by showing that his reputation for

morality is bad, but such an attack must be addressed

directly to his reputation for truth and veracity.

5. When chastity is not an issue, evidence of general

reputation that a female witness is, or has been, not

law-abiding, unchaste, or a prostitute, is admissible for

the purpose of impeaching the witness either upon cross-

examination or by way of rebuttal; nor can these facts

be shown for the purpose of impeachment by evidence as

to specific acts or instances.

6. The right to confrontation provided by the Sixth

Amendment to the Constitution of the United States

is not violated when a witness’ claim of privilege re-

stricts cross-examination on collateral matters bearing

only on eredibility and not on facts brought out on direct

examination or pertaining to a defendant’s guilt or inno-

cence.

7. Ordinarily the uncorroborated testimony of an

accomplice who has been guilty of a conscious falsehood

may sustain a conviction if a proper cautionary instruc-

tion is given.

8. Where a sentence has been imposed within statu-

tory limits, it will not be disturbed in the absence of an

abuse of discretion.

Heard before White C. J., Spencer, Boslaugh, Smith,

McCown, Newton, and Clinton, JJ.

NEWTON, J.

The defendant was convicted of possession of a

forged instrument. He was sentenced to serve not less

than 2 nor more than 4 years in the Nebraska Penal and

Correctional Complex and to pay a fine of $250 and costs.

On appeal defendant presents three assignments of error,

namely: Prejudicial restriction of his right to cross-ex-

amine the State’s principal witness; conviction on the

uncorroborated testimony of an accomplice; and the im-

position of an excessive sentence. We affirm the judg-

ment of the district court.

The defendant and one Rachel Ann Williams had

driven from Omaha, Nebraska, to North Platte, Nebraska,

where she cashed one forged instrument and where they

were apprehended when she tried to cash another. The

witness pled guilty to a similar charge but had not been

sentenced at the time of defendant’s trial. She was rep-

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resented, when testifying, by a court-appointed attorney

and upon his advice, refused to answer certain questions

propounded on cross-examination on the ground that the

answers would tend to incriminate her. No possible pre}-

udice appears except in regard to the question of wheth-

er the witness was a prostitute. Objection to the question

and witness’ claim to privilege was based upon Article I,

‘section 12, Constitution of Nebraska, and upon section 25-

1210, R. R. S., 1943. Both provide that a witness cannot

be required to incriminate himself and the cited statute

further provides that a witness cannot be compelled to

answer when to do so would ‘‘expose him to public ig-

nominy.’’ Although generally forbidden by city ordinance,

to be a prostitute or to engage in prostitution, does not

constitute a crime under state or federal law. This being

true, it is difficult to see how answering the question

would tend to incriminate the witness unless she had been

guilty of some sexual offense, such as adultery, where,

in the event of prosecution, such an admission might be

damaging. As usual in such cases, the record fails to

throw any light on the situation of the witness in this

respect. In Hoffman v. United States, 341 U. S. 479, 71

S. Ct. 814, 95 L. Ed. 1118, it is said: ‘‘The witness is not

exonerated from answering merely because he declares

that in so doing he would incriminate himself—his say-so

does not of itself establish the hazard of incrimination.

It is for the court to say whether his silence is justified,

* * * and to require him to answer if ‘it clearly appears

to the court that he is mistaken.’’’ It was further held

that the guarantee against compulsory self-incrimination

‘‘must be accorded liberal construction in favor of the

right it was intended to secure.” On the record before

us, this court cannot say that the trial court was guilty

of an abuse of discretion. It is entirely possible that

such an admission could constitute a link in a chain of

evidence required to convict her of some other offense.

The courts are divided upon the question of whether

or not impeachment on moral grounds is permissible. In

State v. Cox (Mo.), 352 S. W. 2d 665, a prosecution for

murder, defendant asked a prosecution witness if she was

a prostitute and an objection to the question was sus-

tained. The court stated: ‘‘The credibility of a witness

in a criminal case cannot be impeached by showing that

his reputation for morality is bad, but such an attack

must be addressed directly to his reputation for truth and

veracity.” Of similar import are People v. Vatek, 71 Cal.

App. 453, 236 P. 163; People v. Brown, 136 Cal. App. 2d

244, 288 P. 2d 984; State v. Gress, 250 Minn. 337, 84 N. W.

2d 616; State v. Peele, 67 Wash. 2d 893, 410 P. 2d 599.

Generally speaking Nebraska follows this rule and it has

been promulgated by statute. See 4 25-1210, R. R. S. 1943.

In Pricer v. Lincoln Gas & Electric Light Co., 111 Neb.

209, 196 N. W. 150, it was held: ‘‘ ‘When the matter

sought to be elicited would tend to render him (the wit-

ness) criminally liable, or to expose him to public ig-

nominy, he is not compelled to answer, * * *.’ ”’

In Daggett v. State, 114 Neb. 238, 206 N. W. 735,

it was held: ‘‘Evidence of general reputation that a

female witness is, or has been, not law-abiding, unchaste,

or a prostitute, is inadmissible for the purpose of impeach-

ing the witness either upon cross-examination or by way

of rebuttal; nor can these facts be shown for the purpose

of impeachment by evidence as to specific acts or instance

es.’’

In State v. Wilson, 174 Neb. 86, 115 N. W. 2d 794,

it was held: ‘‘Evidence which does not tend to impeach

any witness on a material point and which is not substan-

tive proof of any fact relative to th» issue is propérly

excluded.’’ See, also, Swogger v. State, 116 Neb. 563, 218

N. W. 416.

There is a recognized exception to the Nebraska rule

in cases involving sexual offenses where chastity is an

issue. See Redmon v. State, 150 Neb. 62, 33 N. W. 2d 349.

Defendant insists that his right to confrontation was

denied by the restriction of cross-examination in the area

above mentioned. We cannot agree. The restricted ques-

tioning dealt only with a collateral matter bearing solely

on the credibility of the witness, not upon facts brought

out on direct examination, and not on facts pertaining to

the guilt or innocence of the defendant. In United States

v. Cardillo, 316 F. 2d 606 (2d Cir., 1963), and in Smith v.

United States, 331 F. 2d 265 (8th Cir., 1964), cert. den.,

379 U. S. 824, it is stated: ‘‘‘* * * reversal need not re-

sult from every limitation of permissible cross-examination

and a witness’ testimony may, in some cases, be used

against a defendant, even though the witness invokes his

privilege against self-incrimination during cross-examina-

tion. In determining whether the testimony of a witness

who invokes the privilege against self-incrimination dur-

ing cross-examination may be used against the defendant,

a distinction must be drawn between cases in which the

assertion of the privilege merely precludes inquiry into

collateral matters which bear only on the credibility of the

witness and those cases in which the assertion of the priv-

ilege prevents inquiry into matters about which the wit-

ness testified on direct examination. Where the privilege

has been invoked as to purely collateral matters, there is

little danger_of prejudice to the defendant and, therefore,

the witness’s testimony may be used against him.”

From a practical standpoint, it is difficult to see how

prejudice could result in the present instance.

Defendant protests that his conviction is dependent

upon the uncorroborated evidence of an accomplice who

had previously given false or contradictory statements.

Examination of the statements previously given discloses

a complete lack of any false or contradictory statement.

The witness is corroborated in part. The evidence of oth-

ers discloses that defendant was driving the automobile

when a stop was made at a filling station and a forged

money order cashed by the accomplice. Also, a stop was

then made at a Safeway Store where an attempt was made

to cash a second forged money order and on being re-

fused, the acco.nplice ran to the automobile, spoke to the

defendant, and he attempted to hastily drive away. The

present rule in this state governing situations of this char-

acter may be found in Smith v. State, 169 Neb. 199, 99 N.

W. 2d 8, and Rains v. State, 173 Neb. 586, 114 N. W. 2d

399, cert. den., 371 U. S. 967, 83 S. Ct. 549, 9 L. Ed. 2d

538, wherein it is stated: ‘‘ ‘The fact that an accomplice

has been guilty of wilful false swearing on a material

matter is a circumstance that may possibly in a particular

instance and situation, make his testimony unworthy of

belief on its face, if it lacks corroboration. In the ordi-

nary case, even though the accomplice may have been

guilty of a conscious falsehood on a material matter, and

even though his testimony is lacking in corroboration, it

may not be utterly unworthy of belief on its face, and, in

such a situation, the rights of an accused will be adequate-

ly protected if the jury are instructed that the testimony

of an accomplice should be scrutinized closely for possible

motives for falsification, and that where he has wilfully

sworn falsely in regard to a material matter they should

be hesitant to convict upon his testimony, without cor-

roboration, and that in no case should they convict unless

they are satisfied from the evidence, beyond a reasonable

doubt, of the guilt of the accused.’’’ See, also, Jahnke v.

State, on rehearing, 68 Neb. 181, 104 N. W. 154. Such in-

struction was given.

In regard to the contention that the sentence is ex-

cessive, the record discloses that although this was de-

fendant’s first felony conviction, he had been convicted of

a great many misdemeanors and had, on two occasions,

spent quite a little time in the county jail. Where a sen-

tence has been imposed within statutory limits, it will not

be disturbed in the absence of an abuse of discretion. See

State v. Gamron, 186 Neb. 249, 182 N. W. 2d 425.

The judgment of the district court is affirmed.

AFFIRMED.

THE STATE OF NEBRASKA, ss.

I, George H. Turner, Clerk of the Supreme Court of the

State of Nebraska, do hereby certify that I have com-

pared the foregoing copy of an opinion filed by said Court

on the 7th day of April 1972 with the original on file in

my office and that the same is a correct transcript there-

of, and of the whole of said original.

IN TESTIMONY WHEREOF, I have hereunto

set my hand and caused to be affixed the Seal of

said Court, at the City of Lincoln, this 7th day of

April, 1972.

/s/ George H. Turner, Clerk.

APPENDIX ‘‘B”

Constituti

Article VI

In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial jury

of the State and district wherein the crime shall have been

committed, which district shall have been previously as-

certained by law, and to be informed of the nature and

cause of the accusation; to be confronted with the witness-

es against him; to have compulsory process for obtaining

witnesses in his favor, and to have the Assistance of

Counsel for his defence.

Article XIV

Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State wherein

they reside. No State shall make or enforce any law

which shall abridge the privileges or immunities of cit-

izens of the United States; nor shall any State deprive

any person of life, liberty, or property, without due proc-

ess of law; nor deny to any person within its jurisdiction

the equal protection of the laws.

Section 2. Representatives shall be apportioned among

the several States according to their respective numbers,

counting the whole number of persons in each State, ex-

cluding Indians not taxed. But when the right to vote

at any election for the choice of electors for President and

Vice President of the United States, Representatives in

Congress, the Executive and Judicial officers of a State,

or the members of the Legislature thereof, is denied to

any of the male inhabitants of such state, being twenty-

one years of age, and citizens of the United States, or in

any way abridged, except for participation in rebellion, or

other crime, the basis of representation therein shall be

reduced in the proportion which the number of such male

citizens shall bear to the whole number of male citizens

twenty-one years of age in such State.

Section 3. No person shall be a Senator or Repre-

sentative in Congress, or elector of President and Vice-

President, or hold any office, civil or military, under the

United States, or under any State, who, having previously

taken an oath, as a member of Congress, or as an officer

of the United States, or as a member of any State legis-

lature, or as an executive or judicial officer of any State,

to support the Constitution of the United States, shall

have engaged in insurrection or rebellion against the same,

or given aid or comfort to the enemies thereof. But Con-

gress may by a vote of two-thirds of each House, remove

such disability.

Section 4. The validity of the public debt of the Unit-

ed States, authorized by law, including debts incurred for

payment of pensions and bounties for services in sup-

pressing insurrection or rebellion, shall not be questioned.

But neither the United States nor any State shall assume

or pay any debt or obligation incurred in aid of insurrec-

tion or rebellion against the United States, or any claim

for the loss of emancipation of any slave; but all such

debts, obligations and claims shall be held illegal and

void.

Section 5. The Congress shall have power to enforce,

by appropriate legislation, the provisions of this article.

R.R.S. 1210

Witnesses; answer subjecting to criminal liability;

disgracing answer; privilege. When the matter sought

to be elicited would tend to render the witness criminally

liable, or to expose him to public ignominy, he is not com-

pelled to answer, except as provided in section 25-1214.

R.R.§8. 1214

Previous conviction of felony; how proved. A witness

may be interrogated as to his previous conviction for a

felony, but no other proof of such conviction is competent

except the record thereof.

APPENDIX “B-1”’

BE 123:21-25; 124:1-18

MR. VYHNALEK: Your Honor, at this time the

defense moves the Court to compel the witness to answer

the questions placed before her on cross-examination on

the grounds that this witness has previously given in

this case testimony which tends to show the commission

or the alleged commission of an offense by Gary Dean

Bittner, the defendant; that the defendant, Gary Dean

Bittner has the right under the Constitution of the United

States to be confronted by all witnesses against him and

to cross-examine the witnesses against him; that by this

witness taking the Fifth Amendment privilege and her

privilege under the Constitution of the State of Nebraska,

the right to confrontation and the right to cross-examina-

tion is effectively being denied this defendant. And the

defense at this time moves to strike all the testimony of

Rachel Ann Williams previously given in this case; and

further, request the Court to instruct the jury to com-

pletely disregard any of the testimony which Rachel

Ann Williams gave in this case.

BE 129:19-25; 130:1-19

MR. VYHNALEK: At this time the defense makes

an offer-of-proof to the effect that in the event that the

witness, Rachel Ann Williams, was allowed to testify

in response to the question about being a prostitute, she

would answer ‘‘Yes’’. And further, the defense sets

forth to the Court on cross-examination we are entitled

to go into any matters that relate to the witness, her

veracity, truthfulness, competency as a witness. And on

the further grounds, again, that we are being denied

effective confrontation on cross-examination of this wit-

ness, all in violation of the Constitution.

MR. SCRITSMIER: On behalf of the witness, I ob-

ject to the offer-of-proof under the provisions of the Ne-

braska Revised Statutes, Section 25-1210, which provides

that when the matters sought to be elicited would tend

to render the witness criminally liable or expose him to

public ignominy, he is not required to answer. And I

object to the offer-of-proof on that basis.

MR. MULLIKIN: And the State objects to the

offer-of-proof for the reason that the offer-of-proof is

outside the scope of the direct examination; and is im-

material and irrelevant to the cause in hearing.

APPENDIX ‘‘C’’

Article VI

In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial

jury of the State and district wherein the crime shall

have been committed, which district shall have been pre-

viously ascertained by law, and to be informed of the

nature and cause of the accusation; to be confronted with

the witnesses against him; to have compulsory process

for obtaining witnesses in his favor, and to have the

Assistance of Counsel for his defense.

PRET TIO eI

ANE RON Dama RN

IR HN

Street are

ISERIES MOND aR aE Aspe

Article XIV

Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State wherein

they reside. No State shall make or enforce any law

which shall abridge the privileges or immunities of citi-

zens of the United States; nor shall any State deprive

any person of life, liberty, or property, without due

process of law; nor deny to any person within its juris-

diction the equal protection of the laws.

Section 2. Respresentatives shall be apportioned

among the several States according to their respective

numbers, counting the whole number of persons in each

State, excluding Indians not taxed. But when the right

to vote at any election for the choice of electors for

President and Vice President of the United States, Repre-

sentatives in Congress, the Executive and Judicial officers

of a State, or the members of the Legislature thereof, is

denied to any of the male inhabitants of such state, being

twenty-one years of age, and citizens of the United

States, or in any way abridged, except for participation

in rebellion, or other crime, the basis of representation

therein shall be reduced in the proportion which the num-

ber of such male citizens shall bear to the whole number

of male citizens twenty-one years of age in such state.

Section 3. No person shall be a Senator or Repre-

sentative in Congress, or elector of President and Vice-

President, or hold any office, civil or military, as a mem-

ber of Congress, or as an officer of the United States,

or as a member of any State legislature, or as an execu-

tive or judicial officer of any State, to support the Con-

stitution of the United States, shall have engaged in

insurrection or rebellion against the same, or given aid

or comfort to the enemies thereof. But Congress may

by a vote of two-thirds of each House, remove such dis-

_ ability.

Section 4. The validity of the public debt of the

United States, authorized by law, including debts in-

curred for payment of pensions and bounties for serv-

ices In suppressing insurrection or rebellion, shall not be

questioned. But neither the United States nor any State

shall assume or pay any debt or obligation incurred in

aid of insurrection or rebellion against the United States,

or any claim for the loss of emancipation of any slave;

but all such debts, obligations and claims shall be held

illegal and void.

Section 5. The Congress shall have power to en-

force, by appropriate legislation, the provisions of this

article.

Assignment of Errors

1. It was error for the Court to allow Rachel Ann

Williams, an alleged accomplice, to give testimony in the

case at bar and allowing the said Rachel Ann Williams

upon cross-examination to invoke the Fifth Amendment

rights thereby curtailing the defendant’s rights to cross-

examination and the confrontation of the witness.

2. The Court erred in overruling the motion of the

defendant for an acquittal or directed verdict at the close

of the State’s evidence.

PT OTR LMOTP NII T GOTO EPI B.S TRL a mae ne ae ’

Thiteals nee pn

3. The Court erred in overruling the motion of the

defendant for an acquittal or in the alternative a directed

verdict at the close of all of the evidence.

4. It was error for the Court to overrule the mo-

tion of the defendant for an acquittal or in the alterna-

tive for a directed verdict at the close of the evidence

on the grounds that the State of Nebraska did not cor-

roborate the testimony of the alleged accomplice, Rachel

Ann Williams, and that the said Rachel Ann Williams

was allowed to invoke the Fifth Amendment rights upon

cross-examination. —

5. The sentence imposed by the trial Court was

excessive.

6. The verdict was contrary to the law and the evi-

dence.

APPENDIX ‘“D’’

Instruction No. 15

You are the sole judges of the credibility of the wit-

nesses and the weight to be given to their testimony.

In determining the weight which the testimony of the

witnesses is entitled to receive, you should consider:

1. Their interest in the result of the suit, if any;

2. Their conduct and demeanor while testifying;

3. Their apparent fairness or bias or relationship

to the parties, if any such appears;

. Their opportunity for seeing or knowing the

things about which they have testified;

. Their ability to remember and relate accurately

the occurrences referred to in their evidence;

. The extent to which they are corroborated, if

at all, by circumstances or the testimony of

credible witnesses;

. The reasonableness or unreasonableness of their

statements ;

. And, all other evidence, facts and circumstances

proved tending to corroborate or contradict such

witnesses.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.