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03/04/76 STATE NEBRASKA v. MELVIN ISLEY

March 4, 1976

STATE OF NEBRASKA, APPELLEE,
v.
MELVIN ISLEY, APPELLANT



Appeal from the District Court for Lincoln County: Keith Windrum, Judge.

White, C. J., Spencer, Boslaugh, McCown, Newton, Clinton, and Brodkey, JJ.

SYLLABUS BY THE COURT

1. Verdicts: Evidence. The verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the State, to support it.

2. Juries: New Trial. In order for jury misconduct to be the basis for a new trial, the misconduct must be prejudicial to the defendant.

3. Witnesses: Trial: Evidence. Proof of contradictory statements of a witness is received not as evidence of the facts declared, but for the purpose only of aiding the jury in estimating the credibility of the witness.

4. Witnesses: Trial: Evidence. A witness may be impeached by showing that he made statements out of court contrary to those made in court in regard to matters relative to the issues. Such declarations are not substantive evidence of the fact declared.

5. Witnesses: Trial: Evidence. The impeachment of a witness by showing contradictory statements made by him is admitted solely for the purpose of discrediting the reliability of the witness; it is not substantive evidence of the facts stated in the impeaching testimony.

6. : Discovery: Trial. In a criminal case, the trial court is vested with broad discretion in considering discovery requests of defense counsel and error can be predicated only upon an abuse of such discretion.

The opinion of the court was delivered by: White

The defendant was found guilty of manslaughter after a trial before a jury and sentenced by the District Court to the Nebraska Penal and Correctional Complex for a period of 3 to 5 years. The defendant appeals that conviction. We affirm the judgment of the District Court.

The defendant was convicted of manslaughter in connection with the death of Fred C. Roberts, Jr. On March 11, 1974, Roberts entered the Sahara Lounge and was seated at the bar. The manager of the bar apparently asked that Roberts be removed from the Sahara Lounge because he was drunk and was using obscene language. The defendant grabbed Roberts from the bar stool and dragged him out of the premises. One witness testified that she saw the defendant pull Roberts' shirt off outside the bar, and as Roberts attempted to flee, the defendant chased after him. Three other witnesses testified that the defendant remained outside of the building for 3 to 5 minutes before returning. These same three witnesses also testified that the defendant, upon his return, boasted that Roberts would not cause any more trouble because the defendant had "just beat his brains in," or that "he had broke his neck."

Roberts' unconscious body was found on the ground outside the bar. He died 3 days later from massive head injuries. The jury found the defendant guilty of manslaughter and the District Court gave the defendant a sentence of 3 to 5 years.

The defendant's first contention on appeal is that there was not sufficient evidence to support a jury verdict of guilty. We do not agree. This court stated in State v. Combs, 192 Neb. 551, 222 N.W.2d 833: "After a jury has considered all the evidence and returned a verdict of guilty, that verdict may not, as a matter of law, be set aside on appeal for insufficiency of evidence, if the evidence sustains some rational theory of guilt." There was clearly sufficient evidence before the jury to sustain a rational theory of guilt. Numerous witnesses testified that the defendant dragged the victim, Roberts, out of the bar. Three witnesses testified that the defendant remained outside for 3 to 5 minutes, a period of time long enough to inflict the beating. The same three witnesses also testified that they heard the defendant admit he had severely beaten the victim. Another witness testified that she saw the defendant chasing Roberts outside. The above testimony easily sustains a rational theory of guilt.

The defendant's next contention is that the District Court erred in refusing to grant a new trial on the basis of jury misconduct. In support of the defendant's motion for a new trial, the defendant's attorney, Mr. Padley, submitted his own affidavit which revealed that an alternate juror had told Mr. Padley, while in the presence of the District Court Judge, that during the course of the trial the jurors had discussed the witnesses during recesses and had expressed opinions relating to the credibility of witnesses and the conflicts in the testimony. The jury, if in fact it discussed the case outside the courtroom, did act improperly. The District Court had admonished the jury not to discuss the case during recesses. However, in order for jury misconduct to be the basis for a new trial, the misconduct must be prejudicial to the defendant. See Williams v. State, 115 Neb. 277, 212 N. W. 606. If there was jury misconduct in this case, there is no evidence that the defendant was prejudiced by such misconduct. In fact, in Mr. Padley's affidavit, he states that the alternate juror said that, "it would be difficult to conclude how the jurors would decide the case in view of the conversations which he had overheard." Thus, ...


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