Appeal from the District Court for York County: Bryce Bartu, Judge.
As Corrected May 24, 1995.
Hannon, Irwin, and Mues, Judges.
1. Rules of Evidence. In all proceedings where the Nebraska Evidence Rules apply, admissibility of evidence is controlled by the Nebraska Evidence Rules, not judicial discretion, except in those instances under the Nebraska Evidence Rules when judicial discretion is a factor involved in admissibility of evidence.
2. Rules of Evidence. Evidence which is not relevant is not admissible.
3. Rules of Evidence: Words and Phrases. Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
4. Rules of Evidence: Other Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he or she acted in conformity therewith.
5. Miranda Rights: Self-Incrimination. The prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.
6. Confessions: Motions to Suppress. A defendant may request a hearing on and a determination of the voluntariness of a statement made by the defendant, but in the absence of such a request, the defendant cannot complain of the failure of the court to hold such a hearing and make such determination.
7. Miranda Rights: Evidence. Even if a defendant's Miranda rights were violated, evidence discovered later is admissible if there is a sufficient independent basis for the discovery of the evidence.
8. Rules of Evidence: Hearsay. Neb. Rev. Stat. § 27-805 (Reissue 1989) provides that each stage of multiple hearsay must pass the tests for admission of hearsay.
9. Rules of Evidence: Hearsay: Conspiracy. Under Neb. Rev. Stat. § 27-801(4)(b)(v) (Reissue 1989), a statement is not hearsay if it is offered against a party and the declaration is a statement by a coconspirator of a party during the course of and in furtherance of the conspiracy.
10. Rules of Evidence: Prior Statements. A prior consistent statement of a witness who testifies at trial is not considered hearsay under Neb. Rev. Stat. § 27-801(4)(a)(ii) (Reissue 1989).
11. Rules of Evidence: Hearsay. In order for a hearsay statement to be admissible under the state of mind exception, the state of mind of the declarant must be relevant to an issue at trial.
12. Trial: Rules of Evidence: Witnesses. Neb. Rev. Stat. § 27-611(2) (Reissue 1989) provides that cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The Judge may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.
13. Trial: Witnesses: Rebuttal Evidence. Anything within the knowledge of a witness tending to rebut evidence given on direct examination is admissible as a matter of right on cross-examination.
14. : Intent. Ignorance or mistake of fact, at least if reasonable, and not due to carelessness or negligence, is a defense if it negatives a mental state required as an element of the offense charged.
15. : Intent: Words and Phrases. The meaning of "knowingly" in a criminal statute commonly imports a perception of facts required to make up the crime. Knowledge, like intent, may be inferred from the circumstances surrounding the act.
16. Intent: Words and Phrases. An act is done knowingly if it is done voluntarily and intentionally, and not because of mistake or accident or innocent reason.
17. Convictions: Appeal and Error. 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.
The opinion of the court was delivered by: Hannon
The defendant, Gregory T. Neujahr, appeals his conviction by a jury for violating Neb. Rev. Stat. § 28-416 (Cum. Supp. 1992) by knowingly or intentionally possessing a controlled substance, namely clorazepate, a Schedule IV controlled substance under Neb. Rev. Stat. § 28-405(a)(6) (Cum. Supp. 1992). He was sentenced to a term of not less than 2 nor more than 5 years in prison. The charge resulted when the police found three clorazepate pills on Neujahr while he was being booked into jail for an unrelated charge. Neujahr claimed he did not know what the pills were or that they were a controlled substance. We find that the trial court did not properly instruct the jury regarding Neujahr's claim that he did not know the pills in his pocket were a controlled substance. We also find that the trial court erred in admitting certain testimony. Accordingly, we reverse the judgment and remand the cause for a new trial.
On August 24, 1993, at approximately 11:50 p.m., Deputy Alan Kosmicki of the York County Sheriff's Department was dispatched to a disturbance at Pam Johnson's residence in Gresham, Nebraska. As a result of that disturbance, Kosmicki arrested Neujahr for trespassing and disturbing the peace. Kosmicki handcuffed Neujahr and took him to jail in York, Nebraska. While he was being booked into jail, Neujahr's pants pockets were emptied, and six pills along with the remnants of another were found in a cellophane wrapper. Lab tests established that three of the pills were carisoprodol, a muscle relaxant, and three were clorazepate, a tranquilizer that is a drug described as a Schedule IV drug under § 28-405. As a result, Neujahr was arrested in October for drug possession.
Neujahr testified and called other witnesses to testify in an attempt to establish that he did not know what the pills were. This evidence will be summarized when the errors corresponding to this evidence are discussed.
Neujahr assigns 14 errors. In an attempt to organize the opinion, we shall divide these alleged errors into related groups. One assigned error relates to the introduction of evidence showing what Neujahr did at Johnson's house on the night he was arrested, three alleged errors relate to the admission of evidence which Neujahr claims was obtained in violation of his Miranda rights, one alleged error relates to prosecutorial misconduct in which the State failed to answer discovery requests timely and completely, one alleged error relates to multiple claims that hearsay was improperly admitted over objection, and one error concerns the jury instructions given. Neujahr also alleges that the evidence is insufficient as a matter of law and that the Judge erred in not recusing himself from sentencing after reading a letter from the prosecutor that was made a part of the presentence report.
Neujahr alleges that the trial court erred in improperly allowing testimony of uncharged misconduct. Defense counsel argues that Kosmicki's testimony regarding the details of Neujahr's August 25 arrest was not relevant to the charge at hand and should have been kept from the jury under Neb. Rev. Stat. § 27-403 (Reissue 1989).
No objection was made when Kosmicki testified that he was dispatched to Johnson's residence because Neujahr was attempting to break into her residence and that when Kosmicki arrived at Johnson's residence, Neujahr was standing in her yard about 10 to 15 feet from the front door. Kosmicki asked Neujahr what he wanted, and Neujahr said that he wanted to talk to Johnson and wanted her to come to the door. At this point, defense counsel objected on the basis that this was evidence regarding misconduct not charged in the proceeding before the court and was therefore irrelevant. This objection was overruled, and the State proceeded to obtain more details.
Kosmicki testified that he knocked on Johnson's door but did not receive an answer. He then asked the dispatcher to telephone Johnson and tell her that an officer was at her door and wished to talk with her. Johnson then answered her door and told Kosmicki what had transpired before he arrived. Kosmicki testified that Johnson said she was concerned about Neujahr's condition and did not want him around. Kosmicki testified that he advised Neujahr to leave and told Neujahr that if he returned, he would be arrested for trespassing and disturbing the peace. Kosmicki testified that after he advised Neujahr not to return, Neujahr became belligerent and abusive and walked off making gestures at Kosmicki and using foul language. Kosmicki testified that he went inside to talk to Johnson to obtain more information. Approximately 4 minutes later, Kosmicki heard a voice coming from one of the rooms in Johnson's residence. Johnson told Kosmicki that the voice was Neujahr's. Kosmicki then called the dispatcher and told the dispatcher he would be bringing in a prisoner. He then went outside and met Neujahr coming around the building. Kosmicki testified that he told Neujahr that he was under arrest for trespassing and disturbing the peace. Kosmicki give a detailed description of Neujahr's arrest. He related that Neujahr said if he wanted to take him he would have to carry him. Neujahr then lay down and attempted to roll away from Kosmicki. Kosmicki then described the details of how he had to force Neujahr into the patrol car.
 "'In all proceedings where the Nebraska Evidence Rules apply, admissibility of evidence is controlled by the Nebraska Evidence Rules, not judicial discretion, except in those instances under the Nebraska Evidence Rules when judicial discretion is a factor involved in admissibility of evidence . . . .'" State v. Perrigo, 244 Neb. 990, 996, 510 N.W.2d 304, 308 (1994).
[2,3] We start our analysis by recognizing a basic premise of evidence--relevancy.
All relevant evidence is admissible except as otherwise provided by the Constitution of the United States or the State of Nebraska, by Act of Congress or of the Legislature of the State of Nebraska, by these rules, or by other rules adopted by the Supreme Court of Nebraska which are not in conflict with laws governing such matters. Evidence which is not relevant is not admissible.
Neb. Rev. Stat. § 27-402 (Reissue 1989). "Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Neb. Rev. Stat. § 27-401 (Reissue 1989).
Defense counsel did not object to Kosmicki's testimony as to why he went to Johnson's residence and that he found Neujahr there. However, he did object to Kosmicki's testimony detailing Neujahr's misconduct. Bearing in mind that Neujahr was being tried for possession of a controlled substance found on him as he was being booked into jail on August 25, the relevancy of Neujahr's prior misconduct that resulted in his arrest on August 25 is not apparent.
 The State relies upon Neb. Rev. Stat. § 27-404(2) (Cum. Supp. 1994), which states the following:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he or she acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
The conduct the State claims is admissible under this provision does not relate to the possession or consumption of drugs and therefore does not relate to motive, opportunity, intent, preparation, or plan. The details of Neujahr's conduct do not purport to show his knowledge or the absence of mistake or accident regarding the drugs found in his pocket. His identity cannot reasonably be disputed.
The State relies upon State v. Scott, 211 Neb. 237, 318 N.W.2d 94 (1982), where the preparations for and commission of other burglaries were admitted into evidence as relevant in a trial for burglary. That case is a good example of when prior bad conduct is admissible under § 27-404(2). It takes no particular insight to see why evidence of prior bad acts involving other burglaries is relevant in a trial for burglary to prove intent, plan, or other items under § 27-404(2). In the instant case, Neujahr's trespassing and other conduct prior to his arrest on August 25 does not tend to establish elements required to prove his possession of drugs.
The State argues that "it is within the discretion of the trial court to determine admissibility of evidence of other wrongs or acts and the trial court's decision will not be reversed absent abuse of that discretion." State v. Bronson, 242 Neb. 931, 940, 496 N.W.2d 882, 890 (1993). Before this principle is applied, the evidence offered under § 27-404(2) must at least have a tendency to prove a point that is relevant to the crime charged.
The details of Neujahr's activity at Johnson's residence on August 25 were not relevant to the crime charged and should not have been admitted. Since we are reversing the judgment for other reasons, we need not consider whether this error is reversible error.
ALLEGED VIOLATION OF MIRANDA RIGHTS
Neujahr alleged that the trial court erred in admitting into evidence a statement he allegedly made while being booked into jail on August 25, 1993, a statement that the pills found in his pocket were Advil. Neujahr also alleged that the trial court erred in admitting a corrections officer's testimony that Neujahr refused to answer her question as to the type of antidepression medication he was taking. Neujahr also alleges that the admission of statements he made to Kosmicki on October 19, 1993, was not admissible. A review of the testimony involving these issues is necessary to understand the errors assigned.
Kosmicki and corrections officer Mikki Hoffman booked Neujahr into jail on August 25. No Miranda warnings were given. Kosmicki testified that while Hoffman was attempting to obtain some statistical information for the jail records, Neujahr was belligerent and not cooperating. Kosmicki believed Neujahr was intoxicated. Kosmicki testified that before Hoffman got to the usual questions regarding medical conditions, Neujahr attempted to empty his pockets even though he was still handcuffed. Kosmicki thought this was unusual. Hoffman then emptied Neujahr's pockets for him, and in one pocket she found what appeared to be a cellophane wrapper from a cigarette package that contained six whole pills and a remnant of another. Three of the pills were white and three were peach in color. All of the pills were about the size of children's aspirin. After Kosmicki took the pills into his possession, he asked Neujahr what the pills were, and Neujahr responded that they were his Advil. Kosmicki was familiar with Advil and realized the pills were not Advil. "Due to the fact that they did not appear to be Advil, I asked Mr. Neujahr if he had any prescriptions." The record does not show an answer to that question.
At approximately 7 p.m. on October 19, after Kosmicki learned about the chemical composition of the pills from the lab test results, he went to Neujahr's house to inquire further about how Neujahr obtained the pills. At that time, Neujahr told Kosmicki that he had received a prescription for desipramine from a Dr. Pothuloori in Lincoln sometime before the incident in August. Neujahr stated that he did not have a prescription for either carisoprodol or clorazepate and had not received any other pills from anyone else at the time of the incident in August.
Hoffman testified that part of her job is to book incoming individuals into jail. She was present when Kosmicki brought Neujahr to jail. She stated that she asked Neujahr if he had anything in his pockets and then started to remove things from his pants pockets. From the left front pocket she removed "a cigarette lighter and cigarette packs and a small cellophane pack with pills in it." She handed them to Kosmicki and heard him ask Neujahr what the pills were. Neujahr replied that they were his Advil. She then proceeded with the booking procedure and asked him routine booking questions in order to obtain statistical information for the jail records. He responded to some of the questions but not to other questions. The booking questions included a medical screening to ascertain if an incoming individual had any medical problems that needed attention. On direct examination, Hoffman was asked the following questions by the prosecutor:
Q Did you attempt to obtain that information from Mr. Neujahr?
A Yes, I did. And he indicated that yes, he was. He was on an antidepressant and when I asked him the name he wouldn't tell me.
Q Okay. Did he indicated that he didn't know or was it a refusal to answer?
At this point, defense counsel objected based on Neujahr's constitutional right not to incriminate himself. This objection was overruled, and Hoffman was allowed to testify that Neujahr refused to respond to her question.
 On the day of trial, Neujahr's attorney filed a motion to "suppress and exclude from use against him any and all statements made by him to Deputy Alan Kosmicki allegedly made on our about October, 1993." The motion alleges that the statements were not made freely and were in violation of Neujahr's constitutional rights. The motion does not mention any evidence originating on August 24 or 25. At trial, Neujahr's attorney objected to the evidence about what Neujahr did and did not say during booking on the basis that the evidence violated Neujahr's Fifth Amendment rights as protected by the ...