State v. Wells

425 N.W.2d 338, 229 Neb. 89, 1988 Neb. LEXIS 236
CourtNebraska Supreme Court
DecidedJuly 1, 1988
Docket87-674
StatusPublished
Cited by13 cases

This text of 425 N.W.2d 338 (State v. Wells) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Wells, 425 N.W.2d 338, 229 Neb. 89, 1988 Neb. LEXIS 236 (Neb. 1988).

Opinions

Caporale, J.

A jury found defendant, James A. Wells, guilty of first degree sexual assault, a violation of Neb. Rev. Stat. [90]*90§ 28-319(l)(a) (Reissue 1985); he was so adjudged and thereafter sentenced. In this appeal he asserts the district court erred in (1) receiving certain evidence and (2) permitting the prosecutor to inquire into and comment upon his silence during the investigation of the crime. We reverse and remand for a new trial.

FACTS

On June 5,1986, following separation from her husband, the victim, R.L., and her 14-year-old daughter took up residence in a downtown Omaha apartment building. R.L.’s was a second-floor apartment overlooking the roof of an adjoining one-story portion of the structure, this roof being about 18 inches below the level of the living room window to her apartment. Elevators in the building cannot be activated without a security code, and the stairwells above the lobby level are locked from the direction of entry.

On the second night of her residence at the apartment building, the victim was awakened by the phone at 1 o’clock in the morning. Once awake, she noticed that her daughter was not in the apartment. Moments later, a man tried to enter her apartment through the open living room window; he was apparently startled to find R.L. awake, asked for her daughter, and immediately exited.

R.L. began to search for her daughter, starting with the neighboring apartment of one Ron Cichowski, whom R.L. had met when she moved into the apartment building. Cichowski’s apartment was also on the second floor, directly across the roof from R.L.’s living room. R.L. found her daughter in Cichowski’s bathroom; the daughter was drunk and lost consciousness shortly thereafter. Also found in the bathroom with her daughter was the defendant. At this time, R.L. recognized defendant as the person who moments earlier had attempted to enter her apartment.

After taking the daughter to her apartment and putting the daughter in bed, R.L. returned to Cichowski’s apartment to talk to him about her daughter’s intoxication. Defendant was still in Cichowski’s apartment at this time but, according to R.L., kept his back to her and left shortly after she returned. Two days later, at R.L.’s instance, the daughter was made a [91]*91ward of the state and resided in various care facilities thereafter through the time of trial.

Cecil Walker, a friend of Cichowski’s, had been present in Cichowski’s apartment the night and morning the victim’s daughter was found in Cichowski’s bathroom. Walker testified that the daughter went to Cichowski’s apartment sometime after 8 or 9 p.m. and drank beer with Walker, Cichowski, and defendant, who had arrived about an hour after the daughter. Walker also testified that the defendant remained in the apartment throughout approximately IV2 hours of the victim’s discussion of the drinking incident with Cichowski, although the victim did not speak to defendant directly during this period. Walker also testified that later that morning, he found defendant on the fire escape above Cichowski’s bedroom window. The victim subsequently encountered defendant for a brief period, but the two did not speak.

The day following the attempted entry into the victim’s apartment, she and a friend secured the living room window with boards. However, the building manager removed the boards from the living room window on June 10, assuring R.L. that although the window lacked working locks, it was impossible for anyone to gain entry as long as the window was closed because “there were only handles on the inside____”

On July 26, 1986, the victim rose a few moments after hearing a noise at approximately 2:20 a.m. and turned on the bathroom light. After she examined the living room window and noted that the outer casement window and the inner screen were both secure, she returned to bed. The victim was awakened later that morning and found that “there was a man on top of me and he didn’t have any clothes on. I was sleeping on my back and when I woke up he was probably — I don’t know — a few inches away from my face.” The bathroom light shone dimly into the victim’s bedroom; as soon as she awoke, the man ordered her to roll over on her stomach, and she complied. The victim was wearing a nightgown, underwear, and knee socks. Her underwear had been cut in two in the crotch area, apparently before she awoke. The man ordered the victim to remove her nightgown, and after she complied, he raped her.

[92]*92After “five or ten minutes,” the rapist withdrew, ordered the victim to remain on her stomach, and dressed. At one point the victim turned her head enough to see the man putting on blue jeans. She testified:

He saw me looking at him and he told me to get on my stomach and to keep my head down. I was asking him not to hurt me. He was pacing in my bedroom and he wasn’t talking and he asked me if I had a phone. I told him that I did. He asked where it was and I told him it was in the living room, and he said, “You are going to call the police when I leave,” and I told him that I wouldn’t call the police; that he could take the phone with him. He said that he didn’t want my phone, and he said, “You’re going to call the police,” and then he said, “If you do that, you’re going to hurt me so I am going to have to hurt you.” I told him that I wasn’t going to hurt him. I was crying and I just said that I couldn’t because I didn’t know who he was. He stayed in the bedroom for a while walking around and then he told me to roll over on my side, which was facing the bedroom window, and when I did that, I heard him exit my bedroom door and leave through the living room window, run across the roof and I heard him jump. When he jumped, the minute he jumped I heard what I felt was a motorcycle start up____It took off.

The victim immediately put her nightgown back on and went to a friend’s apartment on an upper floor at the building, and police officers were summoned. Upon investigation, it was discovered that the screen in the victim’s living room window had been cut from the frame on two sides.

An examination of the victim conducted at 6:55 that same morning revealed the presence of sperm cells in the fluid samples taken from her.

The victim described the rapist as white, of small to medium build, about 5 feet 6 inches tall, with shoulder-length “blondish-brown” hair. The victim also thought the rapist must be someone who knew her, because few people knew which of her windows was not secured with boards, and because she felt she had heard the rapist’s voice before, although in court she was unable to positively identify defendant as her attacker.

[93]*93Suspicion first focused on defendant’s brother, Robert Wells, whom the victim had met briefly and whom she thought had a voice rather like the rapist’s. However, 4 days after the rape, R.L. was unable to identify Robert Wells’ voice as being that of the rapist. About a week after the rape, the victim considered the possibility that defendant had raped her; however, although she discussed this possibility with the investigating police officers, she at that time discounted the thought because

even though Jim and Bob are basically the same build and have the same length of hair and the same color of hair, I felt, because of the way [defendant] had looked [at the victim on the day of a previous chance encounter], if he had raped me, I felt he would have hurt me physically.

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State v. Wells
425 N.W.2d 338 (Nebraska Supreme Court, 1988)

Cite This Page — Counsel Stack

Bluebook (online)
425 N.W.2d 338, 229 Neb. 89, 1988 Neb. LEXIS 236, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-wells-neb-1988.