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10/16/87 STATE NEBRASKA v. GEORGE E. CARTER

October 16, 1987

STATE OF NEBRASKA, APPELLEE,
v.
GEORGE E. CARTER, APPELLANT. STATE OF NEBRASKA, APPELLEE, V. VICTOR L. CARTER, APPELLANT



Appeal from the District Court for Douglas County: James M. Murphy, Judge.

Boslaugh, C.j., Pro Tem., White, Hastings, Caporale, Shanahan, and Grant, JJ., and Colwell, D.j., Retired.

SYLLABUS BY THE COURT

1. Trial: Evidence: Pretrial Procedure: Appeal and Error. After a motion to suppress has been overruled, an objection to the evidence must be made at trial in order to preserve any error in the ruling on the motion to suppress.

2. Motions for Continuance: Appeal and Error. This court will not reverse an order granting or refusing a continuance except where there has been an abuse of sound legal discretion by the lower court.

3. Plea in Abatement: Appeal and Error. Any error in ruling on a plea in abatement is cured by a subsequent finding at trial of guilt beyond a reasonable doubt.

4. Evidence: Hearsay: Witnesses. A witness is unavailable if the proponent of his statement has been unable to procure his attendance by process or other reasonable means. A witness is not unavailable unless the prosecutorial authorities have made a good faith effort to obtain the witness' presence at trial.

5. Evidence: Hearsay: Witnesses: Appeal and Error. It is within the sound discretion of the trial court whether unavailability of a witness has been shown. Absent a showing of an abuse of discretion, the trial court's decision will be upheld.

6. Evidence: Appeal and Error. If properly admitted evidence exists to establish that which improperly admitted evidence also establishes, the error in receiving the inadmissible evidence is not grounds for reversal.

7. Evidence: Appeal and Error.. The admission or exclusion of evidence is a matter within the sound discretion of the trial court and will be upheld absent an abuse of discretion.

The opinion of the court was delivered by: Boslaugh

The defendants, Victor L. Carter and George E. Carter, were charged in separate informations with first degree murder, with use of a firearm in the commission of a felony, and with being habitual criminals. In the trial court the cases were consolidated for trial. In this court they were consolidated for briefing and argument.

The jury returned verdicts of guilty, and the defendants were each sentenced to life imprisonment on the murder count and to a consecutive term of 10 years on the use of a firearm count.

On appeal the defendants contend that the trial court erred in overruling their motion to suppress identification testimony of Peggy Hatfield and Scott Reynolds, in failing to sustain their motion for a continuance, in failing to sustain their pleas in abatement, in permitting the State to introduce the preliminary hearing testimony of an absent witness, in that the trial was tainted with racial prejudice, in that numerous evidentiary rulings were erroneous, and in granting the State's motion in limine to suppress prior inconsistent evidence.

The record shows that the victim, Jeffrey R. Peterson, died as the result of being shot during the early morning hours of October 9, 1985. A single .38-caliber bullet entered the left chest of the victim and penetrated both lungs and his heart.

The record further shows that between the hours of midnight and 1:30 a.m. on October 9, 1985, the deceased, Jeffrey Peterson, and his cousin, John Flynn, drove to the 19th and Lothrop Streets area in Omaha, Nebraska. They had been asked by a friend of theirs, Gerald Kincaid, to give a message to Janelle Anzalone to either call Kincaid or come to his house because Anzalone owed Kincaid money for pills she had purchased from him. Upon their arrival, Peterson and Flynn met two black males in a blue and white Cadillac parked in front of Anzalone's residence. Flynn inquired as to the whereabouts of Anzalone and was told by the person in the driver's seat that she was not around. During the conversation Flynn was threatened by someone in the Cadillac, and threats were made also against Kincaid or the Kincaid house. Later, Flynn was able to identify only one person in the Cadillac, that being Chester Carter, a brother ...


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