A-12-0257, State of Nebraska v. Nicholas Podrazo (Appellant)
Douglas County, District Court Judge James T. Gleason
Attorney for Appellant: Denise E. Frost (Johnson & Mock)
Attorney for Appellee: Jon Bruning, Nathan A. Liss (Attorney General’s Office)
Criminal Action: First Degree Sexual Assault; Attempted First Degree Assault
Action Taken by Trial Court: A jury found Podrazo guilty of the above crimes. He was sentenced to 40 to 50 years’ imprisonment for the sexual assault conviction and a consecutive term of 10 to 16 years’ imprisonment for attempted assault.
Assignments of Error on Appeal: Podrazo argues that the district court erred in (1) overruling his motion to suppress; (2) refusing to allow him to introduce evidence of the victim’s habits of blackouts and sexual relations during blackout, habitual intoxication connected with sexual activity, and memory impairment as a result of chronic substance abuse; (3) refusing him discovery access to the victim’s mental health records; (4) refusing to allow his expert witness to testify regarding the effect of the victim’s alcohol consumption on her executive functioning and decision-making and when her blackout ended; (5) refusing his proffered jury instruction; (6) refusing to admit into evidence certain exhibits offered in support of his motion for new trial; (7) overruling his motions for mistrial and new trial; and (8) imposing an excessive sentence.
Facts: On the evening of December 23, 2010, Podrazo attended a party at a home near 22nd and Maple Street in Omaha where the victim in this case, A.T., was living at the time. At some point in the evening, the other party-goers noticed that Podrazo and A.T. were both missing as was Podrazo’s vehicle. Approximately 2 hours later, A.T. was found lying in the street, naked and unresponsive, near 73rd and Pratt Street. She was taken to the hospital where it was determined that she had been sexually assaulted. She had sustained severe injuries to the interior and exterior of her vaginal and anal areas. A.T. did not remember anything about the previous night due to intoxication.
Several of A.T.’s friends confronted Podrazo who eventually admitted that he had had sexual intercourse with A.T. in his vehicle the previous night. The police went to Podrazo’s home and towed his vehicle after finding it in the driveway. A search of the interior of the vehicle revealed A.T.’s DNA on blood on the rear center seat cushion and on the end of an ice scraper found in the cargo compartment. Podrazo was ultimately arrested and charged with the first degree sexual assault and first degree attempted assault of A.T.
On appeal, Podrazo challenges the admission of evidence seized from his vehicle, arguing that his vehicle was seized and searched without his consent or a warrant, and none of the exceptions to the warrant requirement apply. He also claims the police acted outside the scope of their jurisdictional boundaries when they seized his vehicle because his home is located outside of the Omaha city limits. The State claims the seizure and search of the vehicle were proper because a Douglas County Sheriff was present and was the person who actually towed the vehicle, and no warrant was required because police had probable cause to search and seize the vehicle based on Podrazo’s admission that he had had sex with A.T. in the vehicle.
Podrazo also challenges the court’s refusal to allow him to introduce evidence that A.T. has a history of blacking out from intoxication and has previously engaged in sexual activity during an alcoholic blackout. The State argues this evidence was properly excluded due to Nebraska’s rape shield statute. In addition, Podrazo argues that he should have been allowed to offer evidence of A.T.’s history of mental health and substance abuse issues and the fact that she has received prior inpatient and outpatient treatment. Further, Podrazo claims that the court erred in denying his request to introduce evidence of A.T.’s habit of drinking to the point of blacking out and wandering around while intoxicated.
Podrazo also claims the court erred in refusing to allow him access to A.T.’s medical records.
Additionally, Podrazo challenges the district court’s restriction on the testimony of his expert witness, Dr. Corbett. Podrazo argues that Dr. Corbett should have been allowed to state his opinion regarding the effect of alcohol on A.T.’s executive functioning and decision-making and when A.T.’s blackout on December 23rd ended. Podrazo also argues that the district court erred in refusing to instruct the jury on the defense of intoxication. Podrazo claims the district court erred in refusing to admit certain exhibits into evidence that were offered in support of his motion for new trial and erred in overruling his motions for mistrial or new trial. Podrazo claims he was entitled to a new trial because he was denied pretrial access to prospective juror questionnaires and because of improper communication between a juror and an employee of the county attorney’s office, which he argues amounts to juror misconduct and/or prosecutorial misconduct. While the State admits there was a conversation between a juror and a county employee, the State argues that Podrazo was not prejudiced by the contact because the juror testified that she did not consider or think about the conversation during the remainder of the trial or deliberations.
Finally, Podrazo claims the court imposed an excessive sentence. The State claims that the sentence was not excessive because it was within the statutory guidelines.