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State v. Van11/12/2004
ng on the motion for new trial, the State offered an affidavit from an officer of the Wayne Police Department averring that all of the materials related to the polygraph report were provided to Van. Van offered no evidence to the contrary. The State could not have failed to disclose information which did not exist. Accordingly, Van's argument in this regard is without merit.
b. Statements of J.G.C. and Marshall
Van filed a pretrial motion to disclose exculpatory and mitigating evidence, which was sustained by the trial court prior to trial. In his brief, Van contends that at trial, both Marshall and J.G.C. testified that they had previously lied to law enforcement officers and that the State failed to provide him with this information prior to trial, thus prejudicing his ability to cross-examine the witnesses. The State argues that Van has presented no evidence in support of his contention that it failed to provide him with information regarding J.G.C.'s and Marshall's statements prior to trial. Moreover, it is clear from the record that Van was provided the information he now complains about while the trial was progressing, when both J.G.C. and Marshall testified about their prior lies. Because Van possessed the information during trial, any delay in receiving the information could not have impaired his ability to cross-examine the witnesses. See State v. Lotter, 255 Neb. 456, 586 N.W.2d 591 (1998) (holding no Brady violation exists when material evidence is disclosed prior to end of trial).
c. Evidence Pertaining to Anita Reeves
During his cross-examination on July 10, 2002, J.G.C. denied that he knew a person named "Anita Reeves" and denied that he had ever told anyone at a Houston church that he intended to go to New Orleans. During redirect on July 11, the State did not question J.G.C. regarding these statements.
On July 12, 2002, while the trial was still in progress, a Wayne police officer conducted a telephone interview with Reeves. During this interview, it was discovered that Reeves had contacted the Houston police in December 2001 to report that she had had contact with J.G.C. at a church in Houston and that J.G.C. stated he was going to New Orleans. The State immediately provided this information to Van. Van now contends that the State knowingly permitted J.G.C. to falsely testify because it knew the contents of the police interview contradicted J.G.C.'s testimony.
The record reflects that the State did not acquire the information regarding Reeves until after J.G.C.'s trial testimony. Prosecutors therefore could not have knowingly allowed J.G.C. to testify falsely with respect to Reeves. In addition, the interview was based only on Reeves' unsworn statements and thus cannot be said to have rendered J.G.C.'s contradictory, sworn statement false. In any event, the disputed contact between J.G.C. and Reeves is a collateral matter which could not be a basis for impeachment. See State v. Owens, 257 Neb. 832, 601 N.W.2d 231 (1999). For these reasons, we conclude that the State did not engage in misconduct by permitting J.G.C. to testify that he did not have contact with Reeves.
(iii) Alleged Juror Misconduct
In support of his motion for new trial, Van offered an affidavit of one of the jurors regarding statements he had made to other jurors during deliberation. The statements pertained to the juror's belief that sodomy was unlawful in Nebraska. The Nebraska Criminal Code, by which criminal offenses are defined in this state, does not include an offense designated as "sodomy." The district court sustained a relevancy objection to the affidavit, reasoning that while it made reference to "thoughts or comments
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