This appeal
of a conviction for motor vehicle homicide, following a jury trial,
lead to a multitude of claimed errors for amendment of the information,
the admission of evidence, jury instructions given by the trial
court, sufficiency of the evidence and sentencing. The Nebraska
Court of Appeals affirms.
State
v. Tuttle (Not Designated for Permanent Publication)
ELaw
Headnotes (Not Prepared by Court)
Appeal and
Error:
- An appellate
court will not consider an issue on appeal that was not passed upon
by the trial court. In re Estate of Eriksen, 271 Neb. 806,
716 N.W.2d 105 (2006).
- [Amendment
of an Information:] The trial court, at its discretion, may
permit an amendment of the information before the verdict or findings,
provided no additional or different offense is charged and the substantial
rights of the defendant are not prejudiced. State v. Furrey,
270 Neb. 965, 708 N.W.2d 654 (2006).
- [Evidence:]
In proceedings where the Nebraska Evidence Rules apply, the admissibility
of evidence is controlled by the Nebraska Evidence Rules; judicial
discretion is involved only when the rules make such discretion
a factor in determining admissibility. Where the Nebraska Evidence
Rules commit the evidentiary question at issue to the discretion
of the trial court, the admissibility of evidence is reviewed for
an abuse of discretion. State v. Robinson, 271 Neb. 698, 715 N.W.2d
531 (2006). ••• (Sufficiency:) When reviewing
a criminal conviction for sufficiency of the evidence to sustain
the conviction, the relevant question for an appellate court is
whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt. State
v. Muro, 269 Neb. 703, 695 N.W.2d 425 (2005). ((Conflicts:))
In reviewing a criminal conviction, an appellate court does not
resolve conflicts in the evidence, pass on the credibility of witnesses,
or reweigh the evidence. State v. Jonusas, 269 Neb. 644,
694 N.W.2d 651 (2005). Such matters are for the finder of fact,
and a conviction will be affirmed, in the absence of prejudicial
error, if the properly admitted evidence, viewed and construed most
favorably to the State, is sufficient to support the conviction.
Id.
- [Jury Instructions:]
Whether jury instructions given by a trial court are correct is
a question of law. State v. Anderson, 269 Neb. 365, 693 N.W.2d
267 (2005). On a question of law, an appellate court is obligated
to reach a conclusion independent of the determination reached by
the court below. State v. Furrey, supra.
- [Sentencing]
Sentences within statutory limits will be disturbed by an appellate
court only if the sentences complained of were an abuse of judicial
discretion. State v. Freeman, 267 Neb. 737, 677 N.W.2d 164
(2004).
Judge:
- [Impartiality:]
A judge must be impartial, his or her official conduct must be free
from even the appearance of impropriety, and a judge's undue interference
in a trial may tend to prevent the proper presentation of the cause
of action. State v. Hubbard, 267 Neb. 316, 673 N.W.2d 567
(2004). ••• Trial courts are to refrain from commenting
on evidence or making remarks prejudicial to a litigant or calculated
to influence the minds of the jurors. State v. Stark, 272
Neb. 89, 718 N.W.2d 509 (2006). (Recusal:) A trial judge
should recuse himself or herself when a litigant demonstrates that
a reasonable person who knew the circumstances of the case would
question the judge's impartiality under an objective standard of
reasonableness, even though no actual bias or prejudice is shown.
Id.
- [Appeal
and Error:] One cannot know of improper judicial conduct, gamble
on a favorable result by remaining silent as to that conduct, and
then complain that he or she guessed wrong and does not like the
outcome. Mooney v. Gordon Memorial Hosp. Dist., 268 Neb.
273, 682 N.W.2d 253 (2004).
Arraignment:
- [Waiver:]
Under Neb. Rev. Stat. § 29-1816 (Reissue 1995), if an accused
appears in person and by counsel and goes to trial before a jury
regularly impaneled and sworn, he or she shall be deemed to have
waived arraignment and a plea of not guilty shall be deemed to have
been made. State v. Hernandez, 268 Neb. 934, 689 N.W.2d 579
(2004).
Information:
- [Amendment:]
An amended complaint or information which charges a different crime,
without charging the original crime, constitutes an abandonment
of the first complaint or information and acts as a dismissal of
the same. State v. Furrey, supra.
Motion in
Limine:
- [Appeal
and Error:] When a court overrules a motion in limine to exclude
evidence, the movant must object when the evidence sought to be
excluded by the motion is offered during trial. State v. Timmens,
263 Neb. 622, 641 N.W.2d 383 (2002). A motion in limine is but a
procedural step to prevent prejudicial evidence from reaching the
jury. It is not the office of such a motion to obtain a final ruling
upon the ultimate admissibility of the evidence. Rather, its office
is to prevent the proponent of potentially prejudicial matter from
displaying it to the jury, making statements about it before the
jury, or presenting the matter to the jury in any manner until the
trial court has ruled upon its admissibility in the context of the
trial itself. Id. ••• Because overruling a
motion in limine is not a final ruling on the admissibility of evidence
and therefore does not present a question for appellate review,
a question concerning the admissibility of evidence which is the
subject of a motion in limine is raised and preserved for appellate
review by an appropriate objection during trial. Id.
Plain Error:
- An appellate
court always reserves the right to note plain error which was not
complained of at trial. State v. Mata, 266 Neb. 668, 668
N.W.2d 448 (2003). Plain error exists where there is error, plainly
evident from the record but not complained of at trial, which prejudicially
affects a substantial right of a litigant and is of such a nature
that to leave it uncorrected would cause a miscarriage of justice
or result in damage to the integrity, reputation, and fairness of
the judicial process. Id.
Evidence:
- [Appeal
and Error:] Regardless of whether the evidence is direct, circumstantial,
or a combination thereof, and regardless of whether the issue is
labeled as a failure to direct a verdict, insufficiency of the evidence,
or failure to prove a prima facie case, the standard is the same:
In reviewing a criminal conviction, an appellate court does not
resolve conflicts in the evidence, pass on the credibility of witnesses,
or reweigh the evidence; such matters are for the finder of fact,
and a conviction will be affirmed, in the absence of prejudicial
error, if the evidence admitted at trial, viewed and construed most
favorably to the State, is sufficient to support the conviction.
State v. Sanders, 269 Neb. 895, 697 N.W.2d 657 (2005); State
v. Toof, 9 Neb. App. 535, 616 N.W.2d 32 (2000).
Jury Instructions:
- A jury instruction
which does not correctly state the law or which is likely to confuse
or mislead the jury should not be given. State v. Warren,
9 Neb. App. 60, 608 N.W.2d 617 (2000).
- [Appeal
and Error:] However, failure to object to a jury instruction
after it has been submitted to counsel for review precludes raising
an objection on appeal absent plain error indicative of a probable
miscarriage of justice. State v. Mowell, 267 Neb. 83, 672
N.W.2d 389 (2003). Whether requested to do so or not, a trial court
has the duty to instruct the jury on issues presented by the pleadings
and the evidence. State v. Weaver, 267 Neb. 826, 677 N.W.2d
502 (2004). (Burden:) In an appeal based on a claim of erroneous
jury instructions, the appellant has the burden to show that the
questioned instructions were prejudicial or otherwise adversely
affected a substantial right of the appellant. State v. Sanders,
269 Neb. 895, 697 N.W.2d 657 (2005). ••• A party
who does not request a desired jury instruction cannot complain
on appeal about incomplete instructions. State v. Mowell, supra.
(Standard of Review) All the jury instructions must be read together,
and if, taken as a whole, they correctly state the law, are not
misleading, and adequately cover the issues supported by the pleadings
and the evidence, there is no prejudicial error necessitating reversal.
State v. Molina, 271 Neb. 488, 713 N.W.2d 412 (2006).
Sentencing:
- [Appeal
and Error:] Sentences within statutory limits will be disturbed
by an appellate court only if the sentences complained of were an
abuse of judicial discretion. State v. Freeman, 267 Neb.
737, 677 N.W.2d 164 (2004). An abuse of discretion takes place when
the sentencing court's reasons or rulings are clearly untenable
and unfairly deprive a litigant of a substantial right and a just
result. Id.
- [Imposition:]
In imposing a sentence, a sentencing judge should consider the defendant's
age, mentality, education, experience, and social and cultural background,
as well as his or her past criminal record or law-abiding conduct,
motivation for the offense, nature of the offense, and the amount
of violence involved in the commission of the crime. State v. Freeman,
supra.
Date Filed
and Case No.: February 13, 2007. No. A-06-301.
Court Appealed
From: District Court for Buffalo County, John P. Icenogle, Judge,
on appeal thereto from the County Court for Buffalo County, Graten
D. Beavers, Judge. Judgment of District Court affirmed.
Attorneys
for the Appeal: Greg C. Harris for Daniel Tuttle, appellant.
Jon Bruning and James D. Smith for State of Nebraska, appellee.
Judges:
Inbody, Chief Judge, and Sievers and Moore, Judges.
Authored
By: Moore, Judge.
Summary:
On Sunday, 08/08/04, Stephen Wolf died when he was struck from
behind by a pickup driven by Daniel Tuttle. Wolf was thrown off
the motorcycle and fell under Tuttle's pickup. On 08/11/04 a complaint
was filed charging Tuttle with count I, motor vehicle homicide,
a Class I misdemeanor and count II, following too closely. Specifically,
the complaint alleged in count I that Tuttle "[u]nlawfully,
did cause the death of Stephen D. Wolf unintentionally while engaged
in the operation of a motor vehicle in violation of the law of the
State of Nebraska by following too closely in violation of Nebraska
Revised Statute Section 60-6,140(1)." Tuttle filed a motion
and subsequently amended motions in limine, requesting that the
State be ordered to refrain from introducing any evidence at trial
of Tuttle's "driving pattern" or conduct on the Interstate
prior to the accident under Neb. Rev. Stat. § 27-404(2) and
Neb. Rev. Stat. § 27-403 (Reissue 1995). The State claimed
that three witnesses who observed the collision had also observed
Tuttle cut in front of them and in front of other drivers. The State
argued that such driving pattern was "res gestae" evidence,
because the prior driving was so closely connected to the collision,
it was relevant. The trial court noted that the State had not charged
Tuttle with careless driving as an underlying offense, and the court
stated that the underlying offense Tuttle was charged with might
make a difference. The State filed an amended complaint which added
the underlying offense of careless driving to count I of the complaint.
Count II of the original complaint was dismissed.
Tuttle filed
an objection to the State's amended complaint stating that the amended
complaint had been filed almost 9 months after the alleged violation
and that substantial discovery had been done based on the allegations
in the original complaint, which involved only the offense of following
too closely. The trial court apparently overruled the objection,
because the State proceeded to trial on the amended complaint. In
an order before trial the court found that the testimony witnesses
as a part of the Res Gestae of this offense and not subject to the
prohibitions of § 27-404 was admissible as the amended complaint
alleged both following too closely and careless driving. Following
the presentation of the State's evidence at trial, Tuttle made a
motion to dismiss on the basis that the State had failed to make
a prima facie case. The trial court overruled the motion. Tuttle
presented no evidence, and the case was submitted to the jury. During
deliberations, the jury submitted at least three questions to the
court, one of which asked the locations of temporary merge signs
shown in a video during the State's case. The court's response was:
"You have heard all of the evidence. No more evidence may be
introduced."
The jury found
Tuttle guilty of motor vehicle homicide. Tuttle was ordered to serve
45 days in the jail, placed on probation for 14 months, fined $1,000
and was ordered to pay costs. Tuttle was further ordered to pay
restitution for Wolf's funeral expenses in the amount of $8,627.85
and medical expenses of $449. Tuttle was also ordered to write and
send an apology to Wolf's family, complete a driving education program,
and complete 100 hours of community service. Tuttle's license and
driving privileges were revoked for 1 year. Tuttle appealed his
conviction and sentence to the District Court which affirmed Tuttle's
conviction and sentence. Thereafter Tuttle appealed to the Nebraska
Court of Appeals.
Did the trial
court err in allowing the amended complaint? Tuttle claimed
that the trial court erred in three ways with respect to the amended
complaint.
* •First,
Tuttle claimed that the trial court erred when it suggested to
the State that the complaint be amended to include careless driving
as an underlying offense to the motor vehicle homicide charge.
Having reviewed the comments made by the trial judge the Court
failed to find any impropriety or interference with the case.
The Court noted that the record did not indicate that Tuttle asked
for a recusal and he could not now gamble on a favorable result
by remaining silent as to judicial conduct, and then complain
that he guessed wrong and did not like the outcome. The court
did not err in making these comments during the hearing on the
amended motion in limine. * •Second, Tuttle claimed that the trial court erred in
allowing the State to file the amended complaint. While Tuttle
argued that the prejudice he suffered by the filing of the amended
complaint was that the evidence regarding Tuttle's driving pattern
then became more likely to be admissible, and that this evidence
was highly prejudicial, Tuttle did not base his objection to the
amended complaint made to the trial court on these grounds. The
trial court did not err in allowing the State to file the amended
complaint. * •Third, Tuttle asserts that the trial court erred in
failing to arraign Tuttle on the amended complaint. Tuttle
appeared, was represented by counsel, and went to trial. Accordingly,
he has waived any argument that he should have been rearraigned.
Furthermore, the amended complaint did not charge a different
crime, without charging the original crime, and was thus not an
abandonment of the first complaint.
Was it error
for the trial court to allow evidence of Tuttle's prior driving
pattern at trial? Whiled Tuttle argued that this evidence should
not have been admissible as "res gestae" evidence and
that it was inadmissible under § 27-404, however, Tuttle did
not object to this testimony at trial. There was no plain error.
Was there
sufficient evidence to prove either of the underlying offenses?
The Court found sufficient evidence to support the conviction.
"Even without the evidence of a prior driving pattern, Tuttle
admitted in his letter that he momentarily took his attention away
from the road to look at the Archway and that when he returned his
gaze to the road, it was too late to avoid hitting Wolf" they
noted. Given it's standard of review, the Court declined to disturb
the verdict.
Were the
jury instructions submitted by the trial court to the jury "misleading
and confusing? Again, Tuttle did not object to the proposed
jury instructions at trial and the Court, having read the jury instructions
as a whole and did not find any error.
Did the trial
court err when it denied the jury's request to review certain evidence
during deliberations? The Courts reading of the question indicatee
that the jury was not asking to view the video again, but was asking
if the "merge" signs were up on the day of the accident.
This is a question of fact, rather than a question of law and trial
courts are to refrain from commenting on evidence or making remarks
prejudicial to a litigant or calculated to influence the minds of
the jurors. The trial court did not err in its response to the jury.
Was it error
for the trial court's to require Tuttle to pay restitution, because
the court did not hold a separate hearing on the issue of restitution
and because the restitution order was not supported by competent
evidence? At oral argument, the parties stipulated that the
issue of restitution was now moot as a result of the separate civil
proceeding.
Did the trial
court exceed its authority in revoking his driving privileges, because
this punishment is not allowable under § 28-306 for a Class
I misdemeanor? The Court found it was within the trial court's
authority to order the revocation of Tuttle's driver's license for
1 year.
Was the sentence
excessive? The Court found that the trial court considered the
appropriate factors and imposed a sentence within the statutory
limits. They found no abuse of discretion in the sentence.
Conclusion:
Tuttle's assignments of error are without merit, and Tuttle's conviction
and sentence are affirmed. AFFIRMED.
This appeal
of a conviction for motor vehicle homicide, following a jury trial,
lead to a multitude of claimed errors for amendment of the information,
the admission of evidence, jury instructions given by the trial
court, sufficiency of the evidence and sentencing. The Nebraska
Court of Appeals affirms.
State
v. Tuttle (Not Designated for Permanent Publication)
ELaw
Headnotes (Not Prepared by Court)
Appeal and
Error:
- An appellate
court will not consider an issue on appeal that was not passed upon
by the trial court. In re Estate of Eriksen, 271 Neb. 806,
716 N.W.2d 105 (2006).
- [Amendment
of an Information:] The trial court, at its discretion, may
permit an amendment of the information before the verdict or findings,
provided no additional or different offense is charged and the substantial
rights of the defendant are not prejudiced. State v. Furrey,
270 Neb. 965, 708 N.W.2d 654 (2006).
- [Evidence:]
In proceedings where the Nebraska Evidence Rules apply, the admissibility
of evidence is controlled by the Nebraska Evidence Rules; judicial
discretion is involved only when the rules make such discretion
a factor in determining admissibility. Where the Nebraska Evidence
Rules commit the evidentiary question at issue to the discretion
of the trial court, the admissibility of evidence is reviewed for
an abuse of discretion. State v. Robinson, 271 Neb. 698, 715 N.W.2d
531 (2006). ••• (Sufficiency:) When reviewing
a criminal conviction for sufficiency of the evidence to sustain
the conviction, the relevant question for an appellate court is
whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt. State
v. Muro, 269 Neb. 703, 695 N.W.2d 425 (2005). ((Conflicts:))
In reviewing a criminal conviction, an appellate court does not
resolve conflicts in the evidence, pass on the credibility of witnesses,
or reweigh the evidence. State v. Jonusas, 269 Neb. 644,
694 N.W.2d 651 (2005). Such matters are for the finder of fact,
and a conviction will be affirmed, in the absence of prejudicial
error, if the properly admitted evidence, viewed and construed most
favorably to the State, is sufficient to support the conviction.
Id.
- [Jury Instructions:]
Whether jury instructions given by a trial court are correct is
a question of law. State v. Anderson, 269 Neb. 365, 693 N.W.2d
267 (2005). On a question of law, an appellate court is obligated
to reach a conclusion independent of the determination reached by
the court below. State v. Furrey, supra.
- [Sentencing]
Sentences within statutory limits will be disturbed by an appellate
court only if the sentences complained of were an abuse of judicial
discretion. State v. Freeman, 267 Neb. 737, 677 N.W.2d 164
(2004).
Judge:
- [Impartiality:]
A judge must be impartial, his or her official conduct must be free
from even the appearance of impropriety, and a judge's undue interference
in a trial may tend to prevent the proper presentation of the cause
of action. State v. Hubbard, 267 Neb. 316, 673 N.W.2d 567
(2004). ••• Trial courts are to refrain from commenting
on evidence or making remarks prejudicial to a litigant or calculated
to influence the minds of the jurors. State v. Stark, 272
Neb. 89, 718 N.W.2d 509 (2006). (Recusal:) A trial judge
should recuse himself or herself when a litigant demonstrates that
a reasonable person who knew the circumstances of the case would
question the judge's impartiality under an objective standard of
reasonableness, even though no actual bias or prejudice is shown.
Id.
- [Appeal
and Error:] One cannot know of improper judicial conduct, gamble
on a favorable result by remaining silent as to that conduct, and
then complain that he or she guessed wrong and does not like the
outcome. Mooney v. Gordon Memorial Hosp. Dist., 268 Neb.
273, 682 N.W.2d 253 (2004).
Arraignment:
- [Waiver:]
Under Neb. Rev. Stat. § 29-1816 (Reissue 1995), if an accused
appears in person and by counsel and goes to trial before a jury
regularly impaneled and sworn, he or she shall be deemed to have
waived arraignment and a plea of not guilty shall be deemed to have
been made. State v. Hernandez, 268 Neb. 934, 689 N.W.2d 579
(2004).
Information:
- [Amendment:]
An amended complaint or information which charges a different crime,
without charging the original crime, constitutes an abandonment
of the first complaint or information and acts as a dismissal of
the same. State v. Furrey, supra.
Motion in
Limine:
- [Appeal
and Error:] When a court overrules a motion in limine to exclude
evidence, the movant must object when the evidence sought to be
excluded by the motion is offered during trial. State v. Timmens,
263 Neb. 622, 641 N.W.2d 383 (2002). A motion in limine is but a
procedural step to prevent prejudicial evidence from reaching the
jury. It is not the office of such a motion to obtain a final ruling
upon the ultimate admissibility of the evidence. Rather, its office
is to prevent the proponent of potentially prejudicial matter from
displaying it to the jury, making statements about it before the
jury, or presenting the matter to the jury in any manner until the
trial court has ruled upon its admissibility in the context of the
trial itself. Id. ••• Because overruling a
motion in limine is not a final ruling on the admissibility of evidence
and therefore does not present a question for appellate review,
a question concerning the admissibility of evidence which is the
subject of a motion in limine is raised and preserved for appellate
review by an appropriate objection during trial. Id.
Plain Error:
- An appellate
court always reserves the right to note plain error which was not
complained of at trial. State v. Mata, 266 Neb. 668, 668
N.W.2d 448 (2003). Plain error exists where there is error, plainly
evident from the record but not complained of at trial, which prejudicially
affects a substantial right of a litigant and is of such a nature
that to leave it uncorrected would cause a miscarriage of justice
or result in damage to the integrity, reputation, and fairness of
the judicial process. Id.
Evidence:
- [Appeal
and Error:] Regardless of whether the evidence is direct, circumstantial,
or a combination thereof, and regardless of whether the issue is
labeled as a failure to direct a verdict, insufficiency of the evidence,
or failure to prove a prima facie case, the standard is the same:
In reviewing a criminal conviction, an appellate court does not
resolve conflicts in the evidence, pass on the credibility of witnesses,
or reweigh the evidence; such matters are for the finder of fact,
and a conviction will be affirmed, in the absence of prejudicial
error, if the evidence admitted at trial, viewed and construed most
favorably to the State, is sufficient to support the conviction.
State v. Sanders, 269 Neb. 895, 697 N.W.2d 657 (2005); State
v. Toof, 9 Neb. App. 535, 616 N.W.2d 32 (2000).
Jury Instructions:
- A jury instruction
which does not correctly state the law or which is likely to confuse
or mislead the jury should not be given. State v. Warren,
9 Neb. App. 60, 608 N.W.2d 617 (2000).
- [Appeal
and Error:] However, failure to object to a jury instruction
after it has been submitted to counsel for review precludes raising
an objection on appeal absent plain error indicative of a probable
miscarriage of justice. State v. Mowell, 267 Neb. 83, 672
N.W.2d 389 (2003). Whether requested to do so or not, a trial court
has the duty to instruct the jury on issues presented by the pleadings
and the evidence. State v. Weaver, 267 Neb. 826, 677 N.W.2d
502 (2004). (Burden:) In an appeal based on a claim of erroneous
jury instructions, the appellant has the burden to show that the
questioned instructions were prejudicial or otherwise adversely
affected a substantial right of the appellant. State v. Sanders,
269 Neb. 895, 697 N.W.2d 657 (2005). ••• A party
who does not request a desired jury instruction cannot complain
on appeal about incomplete instructions. State v. Mowell, supra.
(Standard of Review) All the jury instructions must be read together,
and if, taken as a whole, they correctly state the law, are not
misleading, and adequately cover the issues supported by the pleadings
and the evidence, there is no prejudicial error necessitating reversal.
State v. Molina, 271 Neb. 488, 713 N.W.2d 412 (2006).
Sentencing:
- [Appeal
and Error:] Sentences within statutory limits will be disturbed
by an appellate court only if the sentences complained of were an
abuse of judicial discretion. State v. Freeman, 267 Neb.
737, 677 N.W.2d 164 (2004). An abuse of discretion takes place when
the sentencing court's reasons or rulings are clearly untenable
and unfairly deprive a litigant of a substantial right and a just
result. Id.
- [Imposition:]
In imposing a sentence, a sentencing judge should consider the defendant's
age, mentality, education, experience, and social and cultural background,
as well as his or her past criminal record or law-abiding conduct,
motivation for the offense, nature of the offense, and the amount
of violence involved in the commission of the crime. State v. Freeman,
supra.
Date Filed
and Case No.: February 13, 2007. No. A-06-301.
Court Appealed
From: District Court for Buffalo County, John P. Icenogle, Judge,
on appeal thereto from the County Court for Buffalo County, Graten
D. Beavers, Judge. Judgment of District Court affirmed.
Attorneys
for the Appeal: Greg C. Harris for Daniel Tuttle, appellant.
Jon Bruning and James D. Smith for State of Nebraska, appellee.
Judges:
Inbody, Chief Judge, and Sievers and Moore, Judges.
Authored
By: Moore, Judge.
Summary:
On Sunday, 08/08/04, Stephen Wolf died when he was struck from
behind by a pickup driven by Daniel Tuttle. Wolf was thrown off
the motorcycle and fell under Tuttle's pickup. On 08/11/04 a complaint
was filed charging Tuttle with count I, motor vehicle homicide,
a Class I misdemeanor and count II, following too closely. Specifically,
the complaint alleged in count I that Tuttle "[u]nlawfully,
did cause the death of Stephen D. Wolf unintentionally while engaged
in the operation of a motor vehicle in violation of the law of the
State of Nebraska by following too closely in violation of Nebraska
Revised Statute Section 60-6,140(1)." Tuttle filed a motion
and subsequently amended motions in limine, requesting that the
State be ordered to refrain from introducing any evidence at trial
of Tuttle's "driving pattern" or conduct on the Interstate
prior to the accident under Neb. Rev. Stat. § 27-404(2) and
Neb. Rev. Stat. § 27-403 (Reissue 1995). The State claimed
that three witnesses who observed the collision had also observed
Tuttle cut in front of them and in front of other drivers. The State
argued that such driving pattern was "res gestae" evidence,
because the prior driving was so closely connected to the collision,
it was relevant. The trial court noted that the State had not charged
Tuttle with careless driving as an underlying offense, and the court
stated that the underlying offense Tuttle was charged with might
make a difference. The State filed an amended complaint which added
the underlying offense of careless driving to count I of the complaint.
Count II of the original complaint was dismissed.
Tuttle filed
an objection to the State's amended complaint stating that the amended
complaint had been filed almost 9 months after the alleged violation
and that substantial discovery had been done based on the allegations
in the original complaint, which involved only the offense of following
too closely. The trial court apparently overruled the objection,
because the State proceeded to trial on the amended complaint. In
an order before trial the court found that the testimony witnesses
as a part of the Res Gestae of this offense and not subject to the
prohibitions of § 27-404 was admissible as the amended complaint
alleged both following too closely and careless driving. Following
the presentation of the State's evidence at trial, Tuttle made a
motion to dismiss on the basis that the State had failed to make
a prima facie case. The trial court overruled the motion. Tuttle
presented no evidence, and the case was submitted to the jury. During
deliberations, the jury submitted at least three questions to the
court, one of which asked the locations of temporary merge signs
shown in a video during the State's case. The court's response was:
"You have heard all of the evidence. No more evidence may be
introduced."
The jury found
Tuttle guilty of motor vehicle homicide. Tuttle was ordered to serve
45 days in the jail, placed on probation for 14 months, fined $1,000
and was ordered to pay costs. Tuttle was further ordered to pay
restitution for Wolf's funeral expenses in the amount of $8,627.85
and medical expenses of $449. Tuttle was also ordered to write and
send an apology to Wolf's family, complete a driving education program,
and complete 100 hours of community service. Tuttle's license and
driving privileges were revoked for 1 year. Tuttle appealed his
conviction and sentence to the District Court which affirmed Tuttle's
conviction and sentence. Thereafter Tuttle appealed to the Nebraska
Court of Appeals.
Did the trial
court err in allowing the amended complaint? Tuttle claimed
that the trial court erred in three ways with respect to the amended
complaint.
* •First,
Tuttle claimed that the trial court erred when it suggested to
the State that the complaint be amended to include careless driving
as an underlying offense to the motor vehicle homicide charge.
Having reviewed the comments made by the trial judge the Court
failed to find any impropriety or interference with the case.
The Court noted that the record did not indicate that Tuttle asked
for a recusal and he could not now gamble on a favorable result
by remaining silent as to judicial conduct, and then complain
that he guessed wrong and did not like the outcome. The court
did not err in making these comments during the hearing on the
amended motion in limine. * •Second, Tuttle claimed that the trial court erred in
allowing the State to file the amended complaint. While Tuttle
argued that the prejudice he suffered by the filing of the amended
complaint was that the evidence regarding Tuttle's driving pattern
then became more likely to be admissible, and that this evidence
was highly prejudicial, Tuttle did not base his objection to the
amended complaint made to the trial court on these grounds. The
trial court did not err in allowing the State to file the amended
complaint. * •Third, Tuttle asserts that the trial court erred in
failing to arraign Tuttle on the amended complaint. Tuttle
appeared, was represented by counsel, and went to trial. Accordingly,
he has waived any argument that he should have been rearraigned.
Furthermore, the amended complaint did not charge a different
crime, without charging the original crime, and was thus not an
abandonment of the first complaint.
Was it error
for the trial court to allow evidence of Tuttle's prior driving
pattern at trial? Whiled Tuttle argued that this evidence should
not have been admissible as "res gestae" evidence and
that it was inadmissible under § 27-404, however, Tuttle did
not object to this testimony at trial. There was no plain error.
Was there
sufficient evidence to prove either of the underlying offenses?
The Court found sufficient evidence to support the conviction.
"Even without the evidence of a prior driving pattern, Tuttle
admitted in his letter that he momentarily took his attention away
from the road to look at the Archway and that when he returned his
gaze to the road, it was too late to avoid hitting Wolf" they
noted. Given it's standard of review, the Court declined to disturb
the verdict.
Were the
jury instructions submitted by the trial court to the jury "misleading
and confusing? Again, Tuttle did not object to the proposed
jury instructions at trial and the Court, having read the jury instructions
as a whole and did not find any error.
Did the trial
court err when it denied the jury's request to review certain evidence
during deliberations? The Courts reading of the question indicatee
that the jury was not asking to view the video again, but was asking
if the "merge" signs were up on the day of the accident.
This is a question of fact, rather than a question of law and trial
courts are to refrain from commenting on evidence or making remarks
prejudicial to a litigant or calculated to influence the minds of
the jurors. The trial court did not err in its response to the jury.
Was it error
for the trial court's to require Tuttle to pay restitution, because
the court did not hold a separate hearing on the issue of restitution
and because the restitution order was not supported by competent
evidence? At oral argument, the parties stipulated that the
issue of restitution was now moot as a result of the separate civil
proceeding.
Did the trial
court exceed its authority in revoking his driving privileges, because
this punishment is not allowable under § 28-306 for a Class
I misdemeanor? The Court found it was within the trial court's
authority to order the revocation of Tuttle's driver's license for
1 year.
Was the sentence
excessive? The Court found that the trial court considered the
appropriate factors and imposed a sentence within the statutory
limits. They found no abuse of discretion in the sentence.
Conclusion:
Tuttle's assignments of error are without merit, and Tuttle's conviction
and sentence are affirmed. AFFIRMED.
This appeal
of a conviction for motor vehicle homicide, following a jury trial,
lead to a multitude of claimed errors for amendment of the information,
the admission of evidence, jury instructions given by the trial
court, sufficiency of the evidence and sentencing. The Nebraska
Court of Appeals affirms.
State
v. Tuttle (Not Designated for Permanent Publication)
ELaw
Headnotes (Not Prepared by Court)
Appeal and
Error:
- An appellate
court will not consider an issue on appeal that was not passed upon
by the trial court. In re Estate of Eriksen, 271 Neb. 806,
716 N.W.2d 105 (2006).
- [Amendment
of an Information:] The trial court, at its discretion, may
permit an amendment of the information before the verdict or findings,
provided no additional or different offense is charged and the substantial
rights of the defendant are not prejudiced. State v. Furrey,
270 Neb. 965, 708 N.W.2d 654 (2006).
- [Evidence:]
In proceedings where the Nebraska Evidence Rules apply, the admissibility
of evidence is controlled by the Nebraska Evidence Rules; judicial
discretion is involved only when the rules make such discretion
a factor in determining admissibility. Where the Nebraska Evidence
Rules commit the evidentiary question at issue to the discretion
of the trial court, the admissibility of evidence is reviewed for
an abuse of discretion. State v. Robinson, 271 Neb. 698, 715 N.W.2d
531 (2006). ••• (Sufficiency:) When reviewing
a criminal conviction for sufficiency of the evidence to sustain
the conviction, the relevant question for an appellate court is
whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt. State
v. Muro, 269 Neb. 703, 695 N.W.2d 425 (2005). ((Conflicts:))
In reviewing a criminal conviction, an appellate court does not
resolve conflicts in the evidence, pass on the credibility of witnesses,
or reweigh the evidence. State v. Jonusas, 269 Neb. 644,
694 N.W.2d 651 (2005). Such matters are for the finder of fact,
and a conviction will be affirmed, in the absence of prejudicial
error, if the properly admitted evidence, viewed and construed most
favorably to the State, is sufficient to support the conviction.
Id.
- [Jury Instructions:]
Whether jury instructions given by a trial court are correct is
a question of law. State v. Anderson, 269 Neb. 365, 693 N.W.2d
267 (2005). On a question of law, an appellate court is obligated
to reach a conclusion independent of the determination reached by
the court below. State v. Furrey, supra.
- [Sentencing]
Sentences within statutory limits will be disturbed by an appellate
court only if the sentences complained of were an abuse of judicial
discretion. State v. Freeman, 267 Neb. 737, 677 N.W.2d 164
(2004).
Judge:
- [Impartiality:]
A judge must be impartial, his or her official conduct must be free
from even the appearance of impropriety, and a judge's undue interference
in a trial may tend to prevent the proper presentation of the cause
of action. State v. Hubbard, 267 Neb. 316, 673 N.W.2d 567
(2004). ••• Trial courts are to refrain from commenting
on evidence or making remarks prejudicial to a litigant or calculated
to influence the minds of the jurors. State v. Stark, 272
Neb. 89, 718 N.W.2d 509 (2006). (Recusal:) A trial judge
should recuse himself or herself when a litigant demonstrates that
a reasonable person who knew the circumstances of the case would
question the judge's impartiality under an objective standard of
reasonableness, even though no actual bias or prejudice is shown.
Id.
- [Appeal
and Error:] One cannot know of improper judicial conduct, gamble
on a favorable result by remaining silent as to that conduct, and
then complain that he or she guessed wrong and does not like the
outcome. Mooney v. Gordon Memorial Hosp. Dist., 268 Neb.
273, 682 N.W.2d 253 (2004).
Arraignment:
- [Waiver:]
Under Neb. Rev. Stat. § 29-1816 (Reissue 1995), if an accused
appears in person and by counsel and goes to trial before a jury
regularly impaneled and sworn, he or she shall be deemed to have
waived arraignment and a plea of not guilty shall be deemed to have
been made. State v. Hernandez, 268 Neb. 934, 689 N.W.2d 579
(2004).
Information:
- [Amendment:]
An amended complaint or information which charges a different crime,
without charging the original crime, constitutes an abandonment
of the first complaint or information and acts as a dismissal of
the same. State v. Furrey, supra.
Motion in
Limine:
- [Appeal
and Error:] When a court overrules a motion in limine to exclude
evidence, the movant must object when the evidence sought to be
excluded by the motion is offered during trial. State v. Timmens,
263 Neb. 622, 641 N.W.2d 383 (2002). A motion in limine is but a
procedural step to prevent prejudicial evidence from reaching the
jury. It is not the office of such a motion to obtain a final ruling
upon the ultimate admissibility of the evidence. Rather, its office
is to prevent the proponent of potentially prejudicial matter from
displaying it to the jury, making statements about it before the
jury, or presenting the matter to the jury in any manner until the
trial court has ruled upon its admissibility in the context of the
trial itself. Id. ••• Because overruling a
motion in limine is not a final ruling on the admissibility of evidence
and therefore does not present a question for appellate review,
a question concerning the admissibility of evidence which is the
subject of a motion in limine is raised and preserved for appellate
review by an appropriate objection during trial. Id.
Plain Error:
- An appellate
court always reserves the right to note plain error which was not
complained of at trial. State v. Mata, 266 Neb. 668, 668
N.W.2d 448 (2003). Plain error exists where there is error, plainly
evident from the record but not complained of at trial, which prejudicially
affects a substantial right of a litigant and is of such a nature
that to leave it uncorrected would cause a miscarriage of justice
or result in damage to the integrity, reputation, and fairness of
the judicial process. Id.
Evidence:
- [Appeal
and Error:] Regardless of whether the evidence is direct, circumstantial,
or a combination thereof, and regardless of whether the issue is
labeled as a failure to direct a verdict, insufficiency of the evidence,
or failure to prove a prima facie case, the standard is the same:
In reviewing a criminal conviction, an appellate court does not
resolve conflicts in the evidence, pass on the credibility of witnesses,
or reweigh the evidence; such matters are for the finder of fact,
and a conviction will be affirmed, in the absence of prejudicial
error, if the evidence admitted at trial, viewed and construed most
favorably to the State, is sufficient to support the conviction.
State v. Sanders, 269 Neb. 895, 697 N.W.2d 657 (2005); State
v. Toof, 9 Neb. App. 535, 616 N.W.2d 32 (2000).
Jury Instructions:
- A jury instruction
which does not correctly state the law or which is likely to confuse
or mislead the jury should not be given. State v. Warren,
9 Neb. App. 60, 608 N.W.2d 617 (2000).
- [Appeal
and Error:] However, failure to object to a jury instruction
after it has been submitted to counsel for review precludes raising
an objection on appeal absent plain error indicative of a probable
miscarriage of justice. State v. Mowell, 267 Neb. 83, 672
N.W.2d 389 (2003). Whether requested to do so or not, a trial court
has the duty to instruct the jury on issues presented by the pleadings
and the evidence. State v. Weaver, 267 Neb. 826, 677 N.W.2d
502 (2004). (Burden:) In an appeal based on a claim of erroneous
jury instructions, the appellant has the burden to show that the
questioned instructions were prejudicial or otherwise adversely
affected a substantial right of the appellant. State v. Sanders,
269 Neb. 895, 697 N.W.2d 657 (2005). ••• A party
who does not request a desired jury instruction cannot complain
on appeal about incomplete instructions. State v. Mowell, supra.
(Standard of Review) All the jury instructions must be read together,
and if, taken as a whole, they correctly state the law, are not
misleading, and adequately cover the issues supported by the pleadings
and the evidence, there is no prejudicial error necessitating reversal.
State v. Molina, 271 Neb. 488, 713 N.W.2d 412 (2006).
Sentencing:
- [Appeal
and Error:] Sentences within statutory limits will be disturbed
by an appellate court only if the sentences complained of were an
abuse of judicial discretion. State v. Freeman, 267 Neb.
737, 677 N.W.2d 164 (2004). An abuse of discretion takes place when
the sentencing court's reasons or rulings are clearly untenable
and unfairly deprive a litigant of a substantial right and a just
result. Id.
- [Imposition:]
In imposing a sentence, a sentencing judge should consider the defendant's
age, mentality, education, experience, and social and cultural background,
as well as his or her past criminal record or law-abiding conduct,
motivation for the offense, nature of the offense, and the amount
of violence involved in the commission of the crime. State v. Freeman,
supra.
Date Filed
and Case No.: February 13, 2007. No. A-06-301.
Court Appealed
From: District Court for Buffalo County, John P. Icenogle, Judge,
on appeal thereto from the County Court for Buffalo County, Graten
D. Beavers, Judge. Judgment of District Court affirmed.
Attorneys
for the Appeal: Greg C. Harris for Daniel Tuttle, appellant.
Jon Bruning and James D. Smith for State of Nebraska, appellee.
Judges:
Inbody, Chief Judge, and Sievers and Moore, Judges.
Authored
By: Moore, Judge.
Summary:
On Sunday, 08/08/04, Stephen Wolf died when he was struck from
behind by a pickup driven by Daniel Tuttle. Wolf was thrown off
the motorcycle and fell under Tuttle's pickup. On 08/11/04 a complaint
was filed charging Tuttle with count I, motor vehicle homicide,
a Class I misdemeanor and count II, following too closely. Specifically,
the complaint alleged in count I that Tuttle "[u]nlawfully,
did cause the death of Stephen D. Wolf unintentionally while engaged
in the operation of a motor vehicle in violation of the law of the
State of Nebraska by following too closely in violation of Nebraska
Revised Statute Section 60-6,140(1)." Tuttle filed a motion
and subsequently amended motions in limine, requesting that the
State be ordered to refrain from introducing any evidence at trial
of Tuttle's "driving pattern" or conduct on the Interstate
prior to the accident under Neb. Rev. Stat. § 27-404(2) and
Neb. Rev. Stat. § 27-403 (Reissue 1995). The State claimed
that three witnesses who observed the collision had also observed
Tuttle cut in front of them and in front of other drivers. The State
argued that such driving pattern was "res gestae" evidence,
because the prior driving was so closely connected to the collision,
it was relevant. The trial court noted that the State had not charged
Tuttle with careless driving as an underlying offense, and the court
stated that the underlying offense Tuttle was charged with might
make a difference. The State filed an amended complaint which added
the underlying offense of careless driving to count I of the complaint.
Count II of the original complaint was dismissed.
Tuttle filed
an objection to the State's amended complaint stating that the amended
complaint had been filed almost 9 months after the alleged violation
and that substantial discovery had been done based on the allegations
in the original complaint, which involved only the offense of following
too closely. The trial court apparently overruled the objection,
because the State proceeded to trial on the amended complaint. In
an order before trial the court found that the testimony witnesses
as a part of the Res Gestae of this offense and not subject to the
prohibitions of § 27-404 was admissible as the amended complaint
alleged both following too closely and careless driving. Following
the presentation of the State's evidence at trial, Tuttle made a
motion to dismiss on the basis that the State had failed to make
a prima facie case. The trial court overruled the motion. Tuttle
presented no evidence, and the case was submitted to the jury. During
deliberations, the jury submitted at least three questions to the
court, one of which asked the locations of temporary merge signs
shown in a video during the State's case. The court's response was:
"You have heard all of the evidence. No more evidence may be
introduced."
The jury found
Tuttle guilty of motor vehicle homicide. Tuttle was ordered to serve
45 days in the jail, placed on probation for 14 months, fined $1,000
and was ordered to pay costs. Tuttle was further ordered to pay
restitution for Wolf's funeral expenses in the amount of $8,627.85
and medical expenses of $449. Tuttle was also ordered to write and
send an apology to Wolf's family, complete a driving education program,
and complete 100 hours of community service. Tuttle's license and
driving privileges were revoked for 1 year. Tuttle appealed his
conviction and sentence to the District Court which affirmed Tuttle's
conviction and sentence. Thereafter Tuttle appealed to the Nebraska
Court of Appeals.
Did the trial
court err in allowing the amended complaint? Tuttle claimed
that the trial court erred in three ways with respect to the amended
complaint.
* •First,
Tuttle claimed that the trial court erred when it suggested to
the State that the complaint be amended to include careless driving
as an underlying offense to the motor vehicle homicide charge.
Having reviewed the comments made by the trial judge the Court
failed to find any impropriety or interference with the case.
The Court noted that the record did not indicate that Tuttle asked
for a recusal and he could not now gamble on a favorable result
by remaining silent as to judicial conduct, and then complain
that he guessed wrong and did not like the outcome. The court
did not err in making these comments during the hearing on the
amended motion in limine. * •Second, Tuttle claimed that the trial court erred in
allowing the State to file the amended complaint. While Tuttle
argued that the prejudice he suffered by the filing of the amended
complaint was that the evidence regarding Tuttle's driving pattern
then became more likely to be admissible, and that this evidence
was highly prejudicial, Tuttle did not base his objection to the
amended complaint made to the trial court on these grounds. The
trial court did not err in allowing the State to file the amended
complaint. * •Third, Tuttle asserts that the trial court erred in
failing to arraign Tuttle on the amended complaint. Tuttle
appeared, was represented by counsel, and went to trial. Accordingly,
he has waived any argument that he should have been rearraigned.
Furthermore, the amended complaint did not charge a different
crime, without charging the original crime, and was thus not an
abandonment of the first complaint.
Was it error
for the trial court to allow evidence of Tuttle's prior driving
pattern at trial? Whiled Tuttle argued that this evidence should
not have been admissible as "res gestae" evidence and
that it was inadmissible under § 27-404, however, Tuttle did
not object to this testimony at trial. There was no plain error.
Was there
sufficient evidence to prove either of the underlying offenses?
The Court found sufficient evidence to support the conviction.
"Even without the evidence of a prior driving pattern, Tuttle
admitted in his letter that he momentarily took his attention away
from the road to look at the Archway and that when he returned his
gaze to the road, it was too late to avoid hitting Wolf" they
noted. Given it's standard of review, the Court declined to disturb
the verdict.
Were the
jury instructions submitted by the trial court to the jury "misleading
and confusing? Again, Tuttle did not object to the proposed
jury instructions at trial and the Court, having read the jury instructions
as a whole and did not find any error.
Did the trial
court err when it denied the jury's request to review certain evidence
during deliberations? The Courts reading of the question indicatee
that the jury was not asking to view the video again, but was asking
if the "merge" signs were up on the day of the accident.
This is a question of fact, rather than a question of law and trial
courts are to refrain from commenting on evidence or making remarks
prejudicial to a litigant or calculated to influence the minds of
the jurors. The trial court did not err in its response to the jury.
Was it error
for the trial court's to require Tuttle to pay restitution, because
the court did not hold a separate hearing on the issue of restitution
and because the restitution order was not supported by competent
evidence? At oral argument, the parties stipulated that the
issue of restitution was now moot as a result of the separate civil
proceeding.
Did the trial
court exceed its authority in revoking his driving privileges, because
this punishment is not allowable under § 28-306 for a Class
I misdemeanor? The Court found it was within the trial court's
authority to order the revocation of Tuttle's driver's license for
1 year.
Was the sentence
excessive? The Court found that the trial court considered the
appropriate factors and imposed a sentence within the statutory
limits. They found no abuse of discretion in the sentence.
Conclusion:
Tuttle's assignments of error are without merit, and Tuttle's conviction
and sentence are affirmed. AFFIRMED.
In this decision,
the Nebraska Court of Appeals affirms a district court's decision
regarding defendant's waiver of counsel and the district court's
sentencing.
State
v. Ajamu (Not Designated for Permanent Publication)
ELaw
Headnotes (Not Prepared by Court)
Waiver of
Counsel:
- [Voluntary,
Knowing, and Intelligent:] In State v. Gunther, 271 Neb.
874, 716 N.W.2d 691 (2006), the Nebraska Supreme Court concluded
that Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525,
45 L. Ed. 2d 562 (1975), does not hold that formal warnings must
be given by the trial court to establish a voluntary, knowing, and
intelligent waiver of the right to counsel. The Nebraska Supreme
Court has also rejected the claim that a formalistic litany is required
to show such a waiver was knowingly and intelligently made. See
State v. Green, 238 Neb. 328, 470 N.W.2d 736 (1991). •••
In State v. Dunster, 262 Neb. 329, 631 N.W.2d 879 (2001),
the Nebraska Supreme Court determined that the defendant had made
a knowing and intelligent waiver of his right to counsel. Specifically,
the court noted that the defendant was aware of his right to legal
representation and discussed self-representation with two attorneys.
The court also noted that the trial court advised the defendant
of the complexity of the evidentiary objections and the preservation
of the objections, and the defendant was informed he would be held
to the same standard as a defendant represented by counsel. The
trial court also informed the defendant that it believed he was
making a mistake by choosing to represent himself.
- [Standby
Counsel:] In State v. Wilson, 252 Neb. 637, 564 N.W.2d
241 (1997), the Nebraska Supreme Court found that the fact that
a defendant has had the advice of counsel throughout his prosecution
is an indication that his waiver of counsel and election to represent
himself were knowing and voluntary.
- [Pro Se:]
A criminal defendant who proceeds pro se is held to the same
trial standard as if he or she were represented by counsel, and
it is not up to the trial court to conduct the defense of a pro
se defendant. See State v. Gunther, supra. A defendant who
elects to represent himself or herself cannot thereafter complain
that the quality of his or her own defense amounted to a denial
of effective assistance of counsel. Id. A waiver of counsel
need not be prudent, just knowing and intelligent. Id.
Sentencing:
- [Appeal
and Error:] A sentence imposed within statutory limits will
not be disturbed on appeal absent an abuse of discretion by the
trial court. State v. Aldaco, 271 Neb. 160, 710 N.W.2d 101
(2006). An abuse of discretion occurs when a sentencing court's
reasons or rulings are clearly untenable and unfairly deprive the
litigant of a substantial right and a just result. Id. In considering
a sentence to be imposed, the sentencing court is not limited in
its discretion to any mathematically applied set of factors. Id.
- [Appropriateness:]
The appropriateness of a sentence is necessarily a subjective judgment
and includes the sentencing judge's observation of the defendant's
demeanor and attitude and all the facts and circumstances surrounding
the defendant's life. Id. Factors a judge should consider
in imposing a sentence include the defendant's age, mentality, education,
experience, and social and cultural background, as well as his or
her past criminal record or law-abiding conduct, motivation for
the offense, nature of the offense, and the amount of violence involved
in the commission of the crime. Id.
- [Consecutive
Sentencing:] It is within the discretion of the district court
to direct that sentences imposed for separate crimes be served consecutively.
State v. Benzel, 220 Neb. 466, 370 N.W.2d 501 (1985), overruled
on other grounds, State v. Kuehn, 258 Neb. 558, 604 N.W.2d
420 (2000). As the Nebraska Supreme Court stated in State v.
Chapple, 197 Neb. 4, 246 N.W.2d 714 (1976), the test of whether
consecutive sentences may be imposed under two or more counts charging
separate offenses, arising out of the same transaction or the same
chain of events, is whether the offense charged in one count involves
any different elements than an offense charged in another count.
The test is whether some additional evidence is required to prove
one of the offenses than is necessary to prove one of the other
offenses. Id.
Date Filed
and Case No.: February 13, 2007. Nos. A-05-920 through A-05-922.
Court Appealed
From: District Court for Douglas County: J. RUSSELL DERR, Judge.
Affirmed.
Attorneys
for the Appeal: Christopher J. Lathrop and Gregory A. Pivovar
for Ojore M. Ajamu, a.k.a. Kevin D. Thomas, Appellant. Jon Bruning
and Kimberly A. Klein for State of Nebraska, Appellee.
Judges:
Carlson and Cassel, Judges.
Participating
on Briefs: Inbody, Chief Judge
Authored
By: Carlson, Judge.
Summary:
Ojore M. Ajamu, a.k.a. Kevin D. Thomas, appeals from orders of the
district court for Douglas County finding Ajamu guilty of two counts
of terroristic threats, four counts of assault, and being a habitual
criminal. This appeal involved three separate cases in which Ajamu
represented himself in the Douglas County District Court. These
cases have been consolidated on appeal. In the first case, No. A-05-922,
Ajamu was charged with three counts of terroristic threats, one
of which was subsequently dismissed; one count of assault in the
second degree; and being a habitual criminal. The charges in that
case arose out of an assault committed against a nurse at the University
of Nebraska Medical Center (UNMC) where he had been admitted to
the psychiatric unit. After being discharged, Ajamu went to UNMC's
emergency room and asked to be readmitted to the psychiatric unit
but after he was examined by a doctor, UNMC determined that Ajamu
did not need to be readmitted. At the hospital, after he swallowed
a bottle of pills, he was hospitalized for examination, and when
a nurse ordered him to return to his room he assaulted her. In the
second case, No. A-05-921, Ajamu was charged with assaulting a correctional
officer in the third degree and being a habitual criminal after
he assaulted an officer at the Douglas County correctional unit
after his arrest for the UNMC incident. In the third case, No. A-05-920,
Ajamu was charged with two counts of assault by a confined person
and being a habitual criminal when he assaulted two correctional
officers at the Douglas County jail when they were putting him in
physical restraints. Ajamu was evaluated for his competency throughout
the proceedings, found competent to stand trial and dismissed, then
accepted, then once again dismissed his counsel in each of the three
trials and the enhancement proceedings. Stand-by counsel was ordered
in all proceedings.
All three juries
found Ajamu guilty and following the enhancement hearing the court
sentenced Ajamu to 10 to 10 years' imprisonment on each of Ajamu's
convictions, such sentences to run consecutively. On appeal, Ajamu
contends that the court erred in accepting his waiver of counsel
as being knowingly, voluntarily, and intelligently given and in
finding him competent to waive counsel. Ajamu also argued that the
court erred in imposing excessive sentences. Ajamu appealed to the
Nebraska Court of Appeals.
Was Ajamu's
waiver of counsel as being knowingly, voluntarily, and intelligently
given?
Where Ajamu
claimed that he was not mentally competent and therefore could not
conduct his own defense and that the record failed to demonstrate
that Ajamu's waiver of counsel was knowing, voluntary, and intelligent
the Court disagreed. As to Ajamu's competency, Ajamu underwent a
competency evaluation in November 2004 which shortly preceded all
three of the trials and convictions Ajamu appeals from. The first
trial was held in February 2005, the second in March 2005, and the
third in April 2005. After this evaluation, two doctors found Ajamu
competent to stand trial. The Court found that record contained
evidence showing that Ajamu knowingly, voluntarily, and intelligently
waived his right to counsel in all of his trials. "The record
in all three of Ajamu's cases s shows that Ajamu clearly knew he
would be representing himself and that Ajamu made that decision
knowing that the court had appointed counsel for him" said
the Court. The Court went on to note that "[a] review of the
record shows that Ajamu knew and understood the charges against
him." The Court concluded that Ajamu knowingly, intelligently,
and voluntarily waived his right to counsel. Under a "clearly
erroneous" standard of review, the trial court was not clearly
wrong in concluding that Ajamu validly waived his right to counsel
in all three of his cases.
Were Ajamu's
sentences excessive? Ajamu argued that his sentences are excessive
and should have run concurrently to each other. Here, the presentence
investigation report contained a statement by Ajamu's probation
officer that Ajamu refused to complete an assessment the probation
officer asked him to fill out. The probation officer also stated
that after reviewing the police reports, victim statements, psychological
evaluations, and previous court documents and Ajamu's juvenile history,
Ajamu is not qualified for probation. The record showed that Ajamu
has an extensive criminal record containing nearly eight pages of
prior charges (Ajamu had previously been arrested for theft by deception,
assault and battery, disorderly conduct, fraud, arson, obstructing
an officer, shoplifting, destruction of property, trespassing, false
reporting, burglary, concealment of a weapon, resisting arrest,
sexual assault of a child, criminal mischief, and driving under
the influence.) Ajamu also has a criminal record in Illinois. "Given
the entire record before us," said the Court "including
the violent behavior involved in each of Ajamu's offenses, in addition
to his prior record, we cannot conclude that the trial court imposed
excessive sentences upon Ajamu." In sentencing Ajamu to consecutive
sentences, the court stated that it considered the charges to be
"separate incidents with separate victims." The court
added, "I think that that's the only way to treat them."
The Court found it was clearly within the district court's discretion
to impose consecutive sentences upon Ajamu for all six of his offenses,
and on this record, they found no abuse of discretion.
Conclusion:
After reviewing the record, the Court concluded that the trial court
did not err in accepting Ajamu's waiver of counsel as being knowingly,
voluntarily, and intelligently given or in finding Ajamu competent
to waive counsel. Furthermore, the trial court did not impose excessive
sentences upon Ajamu. AFFIRMED.
What does it
take to prove the age of the defendant in a sexual assault charge
in a "statutory rape" case, where the defendant was nineteen
years of age or older and the victim was less than sixteen years
of age? The Nebraska Court of Appeals addresses that issue here,
where the State did not provide direct evidence of defendant's age.
State
v. McCulloch, 15 Neb. App. 381 (2007)
Court
of Appeals Headnotes
Criminal
Law:
- [Convictions:]
(Evidence: Appeal and Error.) When reviewing a criminal conviction
for sufficiency of the evidence to sustain the conviction, the relevant
question for an appellate court is whether, after viewing the evidence
in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond
a reasonable doubt; this standard of review requires substantial
deference to the factual findings made by the jury.
- [Evidence:]
(Proof.) There appears to be no requirement that the evidence
presented in addition to a defendant's appearance be sufficient
in and of itself to prove the age of the defendant.
Evidence:
- [Appeal
and Error.] An appellate court does not resolve conflicts in
the evidence, pass on the credibility of witnesses, or reweigh the
evidence, as such matters are for the finder of fact.
Convictions:
- [Circumstantial
Evidence.] In finding a defendant guilty beyond a reasonable
doubt, a finder of fact may rely upon circumstantial evidence and
the inferences that may be drawn therefrom.
Circumstantial
Evidence.
- A fact proven
by circumstantial evidence is nonetheless a proven fact.
- [Words
and Phrases.] Circumstantial evidence is evidence which, without
going directly to prove the existence of a fact, gives rise to a
logical inference that such fact exists.
Sexual Assault:
- [Words
and Phrases.] Under Neb. Rev. Stat. § 28-319(1)(c) (Reissue
1995), any person who subjects another person to sexual penetration
when the actor is 19 years of age or older and the victim is less
than 16 years of age is guilty of sexual assault in the first degree.
Trial:
- [Juries:]
(Evidence.) It is uniformly the rule that a defendant's physical
appearance may be considered by the jury in determining his or her
age. It has been held, however, that the jury may not fix the age
of the defendant by merely observing him or her during the trial;
there must be some other evidence in conjunction with the appearance
of the defendant.
Date Filed
and Case No.: February 13, 2007. No. a-06-275.
Court Appealed
From: District Court for Burt County: Darvid D. Quist, Judge.
Attorneys
for the Appeal: Matthew M. Munderloh for Robert D. McCulloch,
appellant. Jon Bruning and George R. Love for State of Nebraska,
appellee.
Judges:
Irwin, Sievers, and Carlson, Judges.
Authored
By: Irwin, Judge.
Summary:
The State alleged that Robert D. McCulloch had sexually assaulted
his niece, P.M. (d.o.b. 03/10/90). The information alleged:
McCulloch on
or between November 14, 2003 and February 1, 2004 in the county
of Burt . . . then and there being did subject P.M. to sexual penetration
when the actor [was] nineteen years of age or older and the victim
[was] less than sixteen years of age.
A jury found
McCulloch guilty and the district court sentenced McCulloch to 8
to 15 years' imprisonment with 423 days' credit for time served.
No direct appeal was filed.
Through a verified
motion for postconviction relief alleging ineffective assistance
of counsel because of his trial counsel's failure to file a direct
appeal on McCulloch's behalf, McCulloch was granted a new direct
appeal, which is the present case before the Nebraska Court of Appeals.
Did the district
court err in finding there was sufficient evidence to find McCulloch
guilty? Viewing the evidence in the light most favorable to
the State, the Court found that there was sufficient evidence for
a rational trier of fact to find the essential elements of the crime
proven beyond a reasonable doubt. A former police chief of Decatur,
Nebraska, testified that he interviewed McCulloch after arresting
him and giving him his Miranda warnings and that during the interview,
McCulloch admitted to having sex with P.M. "one time"
which testimony established that McCulloch subjected P.M. to sexual
penetration. Brenda Hunter, P.M.'s aunt and McCulloch's sister was
called by the defense. Given her testimony, and the ages of her
children, the Court said it is clear that Hunter would have been
at least 19 years of age between at the time of the alleged sexual
assault of P.M. by McCulloch. P.M. testified that she was born on
3/10/90 and that McCulloch had sexual intercourse with her in the
dates alleged, even though she told him to stop. P.M.'s testimony
established that she, the victim, was less than 16 years of age
at the time of the alleged offense.
Did McCulloch receive ineffective assistance of counsel at trial
when his counsel elicited witness testimony tending to prove he
was " 'nineteen years of age or older' " at the time of
the offense? The Nebraska Supreme Court has adopted the two-part
test for proving a claim of ineffective assistance of counsel, as
set forth by the U.S. Supreme Court in Strickland v. Washington,
466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). 1) That
counsel was deficient (did not perform at least as well as a criminal
lawyer with ordinary training and skill in the area.) 2) the defendant
was prejudiced by the counsel's actions or inactions (but for counsel's
deficient performance, the result of the proceeding would have been
different.)
* •Deficient
Performance: The Court's review of the record showed that when
the State rested its case, it had proven with direct evidence McCulloch's
having sexually penetrated P.M. and P.M.'s having been less than
16 years of age at the time of the incident. But that the State
had not adduced direct evidence of McCulloch's age. McCulloch's
counsel called Hunter, McCulloch's sister, to testify. By calling
Hunter to the stand and eliciting the evidence of the age difference
between McCulloch and Hunter as well as of the ages of Hunter's
children, McCulloch's counsel elicited circumstantial evidence that
Hunter was at least in her early 20's and that McCulloch was at
least in his mid- to late 20's. As a result, McCulloch's counsel
introduced evidence from which the jury could reasonably infer that
McCulloch was at least 19 years of age at the time of the sexual
assault. * •Prejudice: Had the State already adduced sufficient
circumstantial evidence to allow a reasonable trier of fact to infer
that McCulloch was at least 19 years of age at the time of the offense?
After a review of the record, the Court concluded that the State
did adduce sufficient evidence of this element of the offense. Two
prior appellate decisions in Nebraska directly addressed the issue
of what circumstantial evidence of a defendant's age is sufficient
to support a conviction for statutory sexual assault. In both cases,
the Nebraska Supreme Court recognized that a jury may consider the
physical appearance of the defendant to determine if he is of a
sufficient age to satisfy the statutory element, if there is other
circumstantial evidence presented to support an inference that the
defendant is of a sufficient age. * • McCulloch's Physical Appearance: A defendant's physical
appearance may be considered by the jury in determining his or her
age but the jury may not fix the age of the defendant by merely
observing him or her during the trial; there must be some other
evidence in conjunction with the appearance of the defendant. In
this case, McCulloch was present in court, was identified by witnesses
at trial, and testified in his own behalf. Therefore, his physical
appearance was open to view by the jurors, whose attention was unquestionably
drawn to McCulloch when he testified and at various times during
the trial * •Additional Circumstantial Evidence: In addition to
McCulloch's physical appearance, there was further circumstantial
evidence which, although insufficient in and of itself to prove
his age, can be considered by the jury in combination with his physical
appearance to reasonably infer that he was at least 19 years of
age at the time of the sexual assault. When viewed in its totality,
and in a light most favorable to the State, this circumstantial
evidence, when combined in the jury's consideration with McCulloch's
physical appearance throughout the course of the trial, was sufficient
evidence to allow the jury to reasonably infer that McCulloch was
at least 19 years of age at the time of the offense. "Indeed,"
said the Court "the trial court found this evidence to be sufficient
when it overruled McCulloch's motion for a directed verdict made
at the conclusion of the State's case in chief, a ruling which was
not appealed by trial counsel. * •Conclusion on Prejudice: In this case, the jury was
able to observe McCulloch's physical appearance throughout the course
of the trial and was presented with other circumstantial evidence,
the combination of which supports a finding that the jury could
reasonably infer beyond a reasonable doubt that the State proved
McCulloch was at least 19 years of age at the time of the offense.
As a result, even assuming trial counsel's performance was deficient,
counsel's performance in eliciting additional testimony tending
to establish McCulloch's age as being at least 19 years cannot be
said to have prejudiced McCulloch. "As such," ruled the
Court "we find no merit to this assignment of error."
Conclusion:
The Court found no merit to McCulloch's assignments of error. Viewing
the evidence in the record as a whole and in a light most favorable
to the State, there was sufficient evidence to support McCulloch's
conviction for sexually assaulting P.M. Even assuming McCulloch's
trial counsel performed deficiently by adducing evidence which tended
to establish McCulloch's age at the time of the offense, because
the State adduced sufficient evidence in its case in chief to support
the jury's finding that McCulloch was at least 19 years of age at
the time of the offense, trial counsel's performance did not prejudice
McCulloch and McCulloch's ineffective assistance of counsel argument
was without merit. AFFIRMED.
Waiver
of Counsel, Knowingly Voluntarily and Intelligently Made, Appeal and
Error
In this decision,
the Nebraska Court of Appeals affirms a district court's decision
regarding defendant's waiver of counsel and the district court's
sentencing.
State
v. Ajamu (Not Designated for Permanent Publication)
ELaw
Headnotes (Not Prepared by Court)
Waiver of
Counsel:
- [Voluntary,
Knowing, and Intelligent:] In State v. Gunther, 271 Neb.
874, 716 N.W.2d 691 (2006), the Nebraska Supreme Court concluded
that Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525,
45 L. Ed. 2d 562 (1975), does not hold that formal warnings must
be given by the trial court to establish a voluntary, knowing, and
intelligent waiver of the right to counsel. The Nebraska Supreme
Court has also rejected the claim that a formalistic litany is required
to show such a waiver was knowingly and intelligently made. See
State v. Green, 238 Neb. 328, 470 N.W.2d 736 (1991). •••
In State v. Dunster, 262 Neb. 329, 631 N.W.2d 879 (2001),
the Nebraska Supreme Court determined that the defendant had made
a knowing and intelligent waiver of his right to counsel. Specifically,
the court noted that the defendant was aware of his right to legal
representation and discussed self-representation with two attorneys.
The court also noted that the trial court advised the defendant
of the complexity of the evidentiary objections and the preservation
of the objections, and the defendant was informed he would be held
to the same standard as a defendant represented by counsel. The
trial court also informed the defendant that it believed he was
making a mistake by choosing to represent himself.
- [Standby
Counsel:] In State v. Wilson, 252 Neb. 637, 564 N.W.2d
241 (1997), the Nebraska Supreme Court found that the fact that
a defendant has had the advice of counsel throughout his prosecution
is an indication that his waiver of couns
