# Petition for a Writ of Certiorari — Bittner v. Nebraska

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for a Writ of Certiorari
- **Published:** January 1, 1972
- **Citation:** 409 U.S. 875

## Text

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}.
4

OE scceitdakiis

rey
vv

GARY DEAN BITTNER,

Petitioner,
vs.

THE STATE OF NEBRASKA,
Respondent.

——- %
Vv

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

il
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
Vv

PETITION FOR A WRIT OF CERTIORARI TO THE
SUPREME COURT OF THE STATE OF NEBRASKA

ry.
Vv

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)
Vv

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

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7 Me

8

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

10

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-

11

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-

12

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.

13

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

14

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-

15

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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16

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

17

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

18

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

19

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

20

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-

21

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.

o-

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

22

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,

23

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.

oO

24

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

25

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

26

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-

27

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

28

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_1018%3A1. Public record. Not legal advice.