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05/16/95 STATE NEBRASKA v. GREGORY T. NEUJAHR

NEBRASKA COURT OF APPEALS


May 16, 1995

STATE OF NEBRASKA, APPELLEE,
v.
GREGORY T. NEUJAHR, APPELLANT.

Appeal from the District Court for York County: Bryce Bartu, Judge.

As Corrected May 24, 1995.

Hannon, Irwin, and Mues, Judges.

SYLLABUS BY THE COURT

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

HANNON, Judge.

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.

FACTS

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.

ASSIGNMENTS OF ERROR

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.

UNCHARGED MISCONDUCT

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.

[1] "'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.

[4] 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's Testimony.

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's Testimony.

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.

[5] 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 procedure outlined in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). The U.S. Supreme Court stated the following in Miranda:

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. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.

384 U.S. at 444.

[6] Neujahr was clearly questioned while in police custody on August 25. In Nebraska, the procedure to suppress evidence at trial is governed by statute as follows:

The suppression motion . . . must be filed at least ten days before trial, unless otherwise permitted by the court for good cause shown. . . . All objections to the use of such statements as evidence on these grounds shall be deemed waived, except . . . in such situations as the court deems that Justice may require.

Neb. Rev. Stat. § 29-115 (Reissue 1989). This statute has been recognized as reflecting an earlier holding of the Nebraska Supreme Court which stated that "'the defendant may request a hearing on and a determination of voluntariness, but in the absence of such request, defendant cannot complain of the failure of the court to hold such a hearing and make such determination.'" State v. Warren, 227 Neb. 160, 162-63, 416 N.W.2d 249, 251 (1987).

As noted above, Neujahr's motion to suppress did not encompass any statements made on August 25 while he was in police custody. In addition, at trial defense counsel did not ask for a suppression hearing. If the evidence was suppressible, a question which we do not decide, the error was not properly presented to the trial court and preserved on appeal. Hence, errors assigned with respect to this issue will not be considered by this court.

Neujahr also alleges that statements made during Kosmicki's questioning at Neujahr's residence on the evening of October 19 should have been suppressed. Neujahr's motion to suppress includes statements made on that date. Neujahr's attorney argues that "had Deputy Kosmicki read the Defendant his Miranda rights before questioning him in October, perhaps that would have eliminated the taint from the lack of giving Miranda warnings the prior time." Brief for appellant at 16. As shown by the above quote from Miranda, the scope of its protection applies only to statements made while in police custody. Neujahr was not in police custody when his October 19 statements were made.

[7] Apparently, Neujahr is seeking to apply the "fruit of the poisonous tree" doctrine of Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963), on the basis that the poison originated from his August 25 statement, which was made without the required Miranda warning. However, this argument was not presented to the trial court. Even if this argument had been properly presented to the trial court, it still does not appear that the State discovered any evidence arising solely out of Neujahr's statements on August 25. Thus, even if Miranda rights were violated, evidence discovered later is admissible if there is a sufficient independent basis for the discovery of the evidence. State v. Welsh, 214 Neb. 60, 332 N.W.2d 685 (1983).

Kosmicki did not go to visit with Neujahr on October 19 until after he had received the results of the laboratory tests on the pills. The lab results showed that the pills were a controlled substance, and this information was not dependent upon any statements that Neujahr might have made on August 24.

PROSECUTORIAL MISCONDUCT

Defense counsel argues that the trial court erred in not vacating the verdict due to prosecutorial misconduct. The prosecutor did not answer Neujahr's discovery questions until April 27, 1994, several months after discovery was ordered and only 4 days before trial. In its answer, the State said it was not in possession of a "statement" made by Neujahr as that term was defined in Neujahr's discovery request or in the discovery statutes. At trial, the State proceeded to use oral statements made by Neujahr against him. Neujahr alleges that the State did not comply with his motion for discovery because it failed to disclose the oral statements that it used at trial. Defense counsel also argues that the prosecutor's policy of allowing limited and inconvenient access to the police reports and its failure to answer the interrogatories prevented defense counsel from learning the police were in possession of statements made by Neujahr to the police that the pills were his Advil and that he refused to answer the corrections officer's question regarding what medication he was taking. Defense counsel argues that the combination of these two acts deprived him of the necessary information to file a motion to suppress 10 days before trial. Defense counsel cites this misconduct on the part of the prosecution as a basis for reversible error, in that the trial court should have suppressed the statement and should have prevented the State from using Neujahr's silence against him at trial. After the verdict, defense counsel moved for a new trial on this same basis.

The State argues that it did comply with Neujahr's discovery request. The State argues that discovery is governed by Neb. Rev. Stat. § 29-1912(1)(a) (Reissue 1989), which provides for the discovery of only statements that are written or recorded.

The only information in the record on this issue is the oral unsworn statements that counsel made during arguments on the motion to suppress the October 19 statement and a copy of the State's answer to Neujahr's discovery request. No other evidence was offered. However, arguments of counsel lead us to believe that the prosecutor might have been unduly evasive in providing the information to defense counsel. On the other hand, defense counsel did not seek the court's assistance to prompt the prosecutor to answer the court-ordered discovery in a timely fashion, nor did he establish a record showing what effect the State's failure to timely answer had on Neujahr's case.

With respect to this matter, we simply do not have a sufficient amount of information in the record to fully consider this issue. If the case did not have to be retried, the matter would cause us great concern. However, since the case must be retried, we decline to address this issue due to the lack of an adequate record.

ERRORS IN ADMISSION OF TESTIMONIAL EVIDENCE

A summary of the testimony of the witnesses involved with these assignments of error is necessary to understand the several issues concerning the admissibility of this evidence. The pertinent evidence is as follows:

Neujahr's Testimony.

Neujahr testified that about midnight on the day before his arrest, Rochelle Karen came to his place and told him that Jean Nisula would not let her spend the night at her home and that she had no place to stay. (Testimony of other witnesses establishes that Karen is a former girl friend of Aaron Nisula, one of Jean Nisula's sons, by whom Karen had a child named "Paige." In the fall of 1993, Jean Nisula was involved in a custody proceeding which resulted in Nisula's obtaining custody of Paige.) Neujahr let Karen sleep at his home that night, but the next morning on his way to work he stopped by Johnson's house and asked her to wake Karen in the morning and to take Karen to her house as soon as she could. After work, he stopped by Johnson's home, where he found Johnson, Johnson's child, Nisula, Karen, and Paige. When Neujahr arrived, Nisula and Karen were arguing. Nisula then offered Neujahr $25 to take Karen to Columbus. He agreed because he and Johnson thought that was the only way "to get her out of the apartment so didn't have to fool with her." Shortly thereafter, Nisula left with Paige to take Nisula's mother's car back to her mother's house. Neujahr and Karen left in Neujahr's El Camino to pick up Nisula and Paige after they dropped off the car and brought them back to Nisula's residence. When Nisula and Paige got into Neujahr's vehicle, Nisula was carrying a big diaper bag and a purse. When they reached Nisula's residence, as Nisula, Karen, and Paige exited Neujahr's vehicle, Nisula spilled some of the contents of her purse or diaper bag on the floor of Neujahr's vehicle. She then proceeded to pick up the objects that had fallen. Neujahr waited in his El Camino for about 5 minutes while Karen gathered her things from Nisula's residence. Karen then put her things in Neujahr's vehicle, and they left for Columbus.

Neujahr testified that after dropping Karen off in Columbus, he went to a store. He purchased some "things" and some "hard liquor." While placing these items on the floor of his vehicle, he noticed six pills and a cigarette package on the floor. He took the cellophane off the cigarettes, placed the pills in the cellophane, and stuck them in his pocket. He then drove back to Gresham and drank approximately a pint of alcohol on the way. He stopped by Nisula's home to get the $25 he was promised. He remained there for a few hours, and he and Nisula drank together during that time. He testified that he forgot about the pills in his pocket and did not mention them to her. Then he went to Johnson's home, and the scene as described in Kosmicki's testimony followed.

Neujahr does not remember telling Kosmicki that the pills found in his pocket were his Advil; however, he was using Advil for headaches at the time. After he was released from jail, he spent 60 days in a treatment center. He testified that when Kosmicki talked to him on October 19, he had forgotten about finding the pills in his vehicle. Kosmicki had a paper containing the names of the drugs found in Neujahr's pocket in August. Neujahr testified that he did not know what pills Kosmicki was questioning him about and had not heard of the word "clorazepate" before. After he was arrested on October 25, he remembered finding the pills and he "called and told her to talk to ." On October 27, he talked to Nisula in person and asked her to go to the county attorney to tell him about her dropping the pills in his vehicle. He testified that Nisula said she could not do that because she was involved in a custody proceeding concerning Paige and she did not want the county attorney "to see this." She did show Neujahr her prescription, and he got the number of it. Neujahr denied taking any pills from Nisula on August 24.

Johnson's Testimony.

Johnson testified that Nisula was at her home on August 24 looking for a ride and that Nisula offered to pay Neujahr $25 to take Karen to Columbus. Neujahr agreed to make the trip as a favor for Johnson. Johnson testified that while Nisula was at her home, she asked for water and took an unknown medicine. Nisula testified that Neujahr returned from Columbus and came to her residence at around 11 p.m. that night and was intoxicated.

Johnson testified that after Neujahr was arrested in October, she told Nisula about the pills being found on Neujahr. She testified that she knew the name of the drug from "the arrest form" and told Nisula the name of the drug. Johnson stated Nisula then told her that the pills were hers and that they had probably fallen out of her purse. She testified that when she first talked to Nisula about her going to the county attorney with the information, Nisula wanted to wait because the State might become biased against her in the upcoming custody hearing regarding Paige.

Jean Nisula's Testimony.

At trial both parties called Jean Nisula to testify. She testified that she had a prescription for clorazepate. She testified that on August 24, 1993, she walked over to Johnson's apartment. She was looking for someone to give Karen a ride to Columbus. Nisula testified that she offered Neujahr $5 to take Karen to Columbus. She stated that she did not drive a car to her mother's house but did ride back to her house in Neujahr's vehicle. Neujahr then took Karen to Columbus. When Neujahr returned from Columbus, he went to Nisula's residence and sat down at her kitchen table where she regularly kept her clorazepate and asked for a drink. She gave him a drink, and upon a further request, she invited him to finish the bottle.

She expressly denied dropping her clorazepate pills in Neujahr's vehicle. On direct examination by defense counsel, she was asked the following question:

Q Did you ever indicate to Pam Johnson that you would come to the courthouse and to my office to get this matter cleared up?

A Pam asked me if I would. And -- Pam -- How it started out, Pam asked me if I would come into court and lie and say that I had dropped my prescription in Greg's truck.

On cross-examination, she was asked if she had a conversation with Johnson regarding Neujahr while she was at Johnson's residence. Defense counsel objected on the basis of hearsay and the court overruled the objection. She then stated, "She informed me that Greg was in jail and that he had called and asked her to ask me if I would come into court and state that I had dropped my medication in his truck." Nisula testified that she declined.

Nisula also testified that on one occasion while she and her sons were playing cards, Neujahr himself appeared at her residence and asked her to testify that she dropped her prescription on the floor of his truck. Neujahr told her he would make it worth her while and would try to raise $500 for her. Nisula testified that she refused.

John Nisula's Testimony.

John Nisula, a son of Jean Nisula, testified on behalf of the State as a rebuttal witness. He testified that the day after Neujahr was arrested, he went with his mother to Johnson's to ask if she would babysit Paige. Without objection, he testified that while they were at Johnson's home, Johnson asked Jean Nisula, in his presence, if she would say that she dropped the pills in his vehicle. He was asked if Johnson explained why she wanted Jean Nisula to say these things, and defense counsel objected on the basis of hearsay. The objection was overruled, and John Nisula stated that Johnson replied that she and Neujahr were having a close relationship at the time. He then continued to testify about what was said, and there were no further hearsay objections.

DEFENSE COUNSEL'S OBJECTIONS

During the testimony of these witnesses, defense counsel objected and the objections were overruled. The trial court's overruling of these objections was assigned as error. Each must be considered individually.

Jean Nisula Hearsay from Johnson.

[8] Neujahr called Jean Nisula to testify. She was not a witness that was friendly to Neujahr. On cross-examination by the State, Nisula testified over defense counsel's hearsay objection that Johnson told Nisula that Neujahr had called Johnson and asked Johnson to ask Nisula if she would come into court and testify that she had dropped her medication in his truck. Nisula's testimony is multiple hearsay. Neb. Rev. Stat. § 27-805 (Reissue 1989) provides that each stage of multiple hearsay must pass the tests for admission of hearsay. A statement to Johnson by Neujahr is an admission and is not hearsay under Neb. Rev. Stat. § 27-801(4)(b)(i) (Reissue 1989). Johnson's out-of-court statement is hearsay if what she said is offered to prove the truth of the matter asserted. The State argues that the statement is not hearsay because it is offered to show that Neujahr made a request through Johnson for Nisula to perjure herself, and not to prove the facts asserted.

However, proof of the fact that Neujahr tried to have Johnson obtain false testimony is what Nisula's testimony tended to establish. Nisula testified that Johnson stated particular facts. This testimony could have but one purpose, and that is to prove that Neujahr authorized Johnson to obtain false testimony. Thus, the truth of what Johnson told Nisula in the out-of-court statement is the matter the State was trying to prove by this hearsay. For that reason, Nisula's testimony as to what Johnson told her is inadmissible hearsay unless one of the evidentiary rules exempts it.

[9] In this case, Neujahr and Johnson were romantically involved. We must at least consider whether there is a basis for the admission of this hearsay. Under § 27-801(4)(b)(v), 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." However, the testimony was not offered under that exception, and the evidence would not support, although it might suggest, a finding that Johnson and Neujahr were coconspirators trying to obtain Nisula's perjury. See State v. Copple, 224 Neb. 672, 401 N.W.2d 141 (1987).

Johnson also testified in this case. However, at the time Nisula testified, Johnson had not yet testified, and therefore there is no possibility that Nisula's testimony might somehow be admissible as a prior statement of the witness Johnson under Neb. Rev. Stat. § 27-613 (Reissue 1989). Therefore, this statement was hearsay and should not have been admitted.

Testimony of Nisula's Prior Consistent Statement.

Neujahr alleges the trial court erred in allowing testimony about a witness' prior consistent statement. During the State's rebuttal, Richard Watts, an attorney who had previously represented Nisula, testified that Nisula told him that Neujahr offered her $500 to testify that she dropped her pills in Neujahr's vehicle. Neujahr argues this statement is hearsay and does not fall within any of the hearsay exceptions. The State argues that Watts' testimony was offered after Neujahr elicited testimony that implied Nisula's statement at trial regarding Neujahr's request for her to perjure herself was the result of a recent fabrication or improper influence or motive.

[10] It is clear from the record that Watts' statement was offered to show that Nisula had made a previous statement that was consistent with her testimony at trial. A prior consistent statement of a witness who testifies at trial is not considered hearsay under § 27-801(4)(a)(ii), and the statement was properly admitted by the trial court. See State v. Tlamka, 244 Neb. 670, 508 N.W.2d 846 (1993).

John Nisula's Testimony about Johnson's Statements.

Neujahr alleges the trial court erred in allowing John Nisula to testify about out-of-court statements made by someone other than the defendant. Defense counsel argues that John Nisula's testimony on rebuttal was hearsay. John Nisula testified as to why Johnson said she wanted his mother, Jean Nisula, to say that she dropped her pills in Neujahr's truck. Defense counsel argues that this is an out-of-court statement offered to prove the truth of the matter asserted and does not fit under any of the exceptions to the hearsay rule. The State argues that John Nisula's statement fits under Neb. Rev. Stat. § 27-803(2) (Reissue 1989) as a statement of the declarant's then-existing state of mind or motive.

[11] We disagree with the State's interpretation of § 27-803(2) as applied in this case. 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. State v. Pelton, 197 Neb. 412, 249 N.W.2d 484 (1977). In the case at hand, the state of mind of the declarant, Johnson, is clearly not relevant to any of the issues considered at trial, except for her credibility.

However, defense counsel did not object to the initial inquiry in which the State sought Johnson's hearsay statement regarding her request to Jean Nisula to lie about the pills. Perhaps defense counsel felt such an objection would be useless in view of the ruling made by the court on similar hearsay testimony by Jean Nisula which is discussed above. However, Johnson's hearsay statement was not objected to and was allowed into evidence. The state of mind of Johnson, the hearsay declarant, would not have been admissible if her testimony had not already been admitted without objection. Thus, since the evidence was previously admitted without objection, the trial court did not commit reversible error in admitting John Nisula's testimony. See State v. Hicks, 241 Neb. 357, 488 N.W.2d 359 (1992).

WITNESS WHO WAS ALSO A CLIENT OF DEFENSE COUNSEL

Neujahr alleges the trial court erred in improperly overruling his objection to the State's cross-examination of Johnson to establish that Neujahr's attorney had represented her in a previous criminal matter. While the relevance of this line of inquiry by the State escapes us, we note that the objection was not made until after the testimony was given, and no motion to strike was made. A timely objection is necessary to preserve an error on the admission of evidence. See Neb. Rev. Stat. § 27-103(1)(a) (Reissue 1989).

IMPROPER CROSS-EXAMINATION OF KOSMICKI

[12,13] The defense called Kosmicki as a witness to testify regarding Nisula's reputation for untruthfulness. On cross-examination, the prosecutor asked, "Did say earlier that he told you that he had not obtained the pills from any other person?" Defense counsel objected on the basis that the question was beyond the scope of direct, and the objection was overruled. It is clear that this question was not related to the witness' direct examination. However, Neb. Rev. Stat. § 27-611(2) (Reissue 1989) provides as follows: "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." "'"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."'" State v. Dixon, 240 Neb. 454, 463, 482 N.W.2d 573, 579 (1992) (quoting State v. Thaden, 210 Neb. 622, 316 N.W.2d 317 (1982)). However, Kosmicki's testimony on cross-examination did not relate to his testimony on direct, except to the extent he was testifying about the same case. Thus, we think the trial court erred in admitting this testimony.

The prosecutor then proceeded to cover points already covered in Kosmicki's earlier testimony during the State's direct examination of him. Defense counsel again objected, and the objection was overruled. Neujahr alleges that the trial court erred in improperly allowing the prosecution to bring out previously admitted testimony during cross-examination. We can think of no justification for allowing the reiteration of this testimony during cross-examination.

Since we conclude that an error in instructing the jury requires a new trial, we will not go through an analysis of whether the trial court committed reversible error in admitting testimony that should not have been admitted.

UNARGUED ERROR

Neujahr alleges the trial court erred in allowing the State to cross-examine a defense witness as to her concerns about Neujahr in another case. Absent plain error, assignments of error not discussed in the briefs will not be addressed by this court. State v. White, 244 Neb. 577, 508 N.W.2d 554 (1993). Neujahr did not argue this assignment, and it will not be considered.

JURY INSTRUCTIONS

Neujahr alleges the trial court erred in failing to define the terms "knowingly" and "intentionally" as used in the jury instructions.

In instruction No. 4, the court instructed the jury that in order to convict Neujahr, the State must prove beyond a reasonable doubt that he possessed clorazepate and that "he did so knowingly or intentionally." The court further instructed the jury as follows:

INSTRUCTION NO. 5

"Possession" of clorazepate means either knowingly having it on one's person or knowing of the object's presence and having control over the object.

INSTRUCTION NO. 6

The law of Nebraska provides that it shall be unlawful for any person knowingly or intentionally to possess a controlled substance.

Clorazepate is a controlled substance as classified by Nebraska law.

The term intentionally means willfully or purposely and not accidentally or involuntarily.

The term knowingly refers to an act done with awareness that it will cause such a result.

Neujahr requested the court to instruct the jury on the dictionary definition of knowingly. More significantly, defense counsel requested the court to give the following instruction which states in part: "You are hereby instructed that before you can find the defendant guilty of knowingly and intentionally possessing a controlled substance you must find that he knew that the drug in his possession was a controlled substance to-wit: clorazepate and that his possession was not inadvertent." The trial court refused to give these instructions.

During its deliberations, the jury asked the court the following question: "Did he have to know it was a controlled substance?" The court answered this question by further instructing the jury as follows: "You're instructed to reread instructions 4, 5, and 6 and continue with your deliberations. You may retire."

Neujahr clearly asserted he may have made a mistake of fact in that he picked up the six pills off of the floor of his vehicle, did not know what they were, and forgot that they were in his pocket at the time he was arrested on August 25. Under the court's instruction, Neujahr could be guilty if he knowingly had possession of the pills without realizing that they were clorazepate. As long as Neujahr admitted the pills were in his pocket and it was not necessary that he knew the pills were clorazepate, a jury verdict of guilty could be expected. However, if Neujahr's testimony is believed, this evidence would establish that he did not know the chemical composition of these pills.

[14-16] As the jury must have correctly observed, the instructions did not take care of the situation involving a mistake of fact. "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." 21 Am. Jur. 2d § 141 at 276 (1981). See, also, State v. Freeman, 267 N.W.2d 69 (Iowa 1978). If Neujahr possessed a controlled substance and did not know he possessed a controlled substance, he did not have the requisite intent to break the law. The Nebraska Supreme Court stated the following with respect to this issue:

"The meaning of 'knowingly' in a criminal statute commonly imports a perception of facts required to make up the crime. [Citation omitted.] Knowledge, like intent, may be inferred from the circumstances surrounding the act." State v. Mills, 199 Neb. 295, 300, 258 N.W.2d 628, 632 (1977). The U.S. District Court for the District of Nebraska has stated that an "act is done knowingly if it is done voluntarily and intentionally, and not because of mistake or accident or innocent reason."

State v. LaFreniere, 240 Neb. 258, 262, 481 N.W.2d 412, 414-15 (1992).

In LaFreniere, the defendant was prosecuted for possession of stolen property. The above-quoted statement was made in connection with the issue of whether a mistake of fact might justify a belief that the property in question was not stolen.

The same theory is involved in the instant case. Neujahr's requested instruction was somewhat obscure but did contain a request for an instruction based on mistake of fact. "It is the duty of the trial court, upon request of the accused, to instruct the jury upon any valid defense if there is credible evidence to support it." State v. Palser, 238 Neb. 193, 204, 469 N.W.2d 753, 760 (1991). Accord, State v. Marco, 230 Neb. 355, 432 N.W.2d 1 (1988); State v. Reeves, 216 Neb. 206, 344 N.W.2d 433 (1984).

The Supreme Court has listed the elements necessary for an appellant to establish reversible error due to a court's refusal to give a requested instruction as follows: "An appellant has the burden to show that (1) the tendered instruction is a correct statement of the law, (2) the tendered instruction is warranted by the evidence, and (3) the appellant was prejudiced by the court's refusal to give the tendered instruction." State v. Myers, 244 Neb. 905, 911-12, 510 N.W.2d 58, 64-65 (1994).

Neujahr tendered the instruction to the trial court; it was a correct statement of the law, even though it could have been worded more articulately; it was warranted by the evidence; and Neujahr was obviously prejudiced by the court's refusal to give the tendered instruction. Therefore, Neujahr met his burden of showing that the trial court committed reversible error in refusing to instruct the jury regarding a mistake of fact. For this reason, we reverse Neujahr's conviction and remand the cause for a new trial.

SUFFICIENCY OF EVIDENCE

[17] This assignment of error is difficult to follow. Neujahr admitted the controlled substance in question was in his possession at the time he was searched on August 25. The only factual issue in question is whether Neujahr was ignorant of the contents of the pills. If Neujahr's testimony is not believed, there is sufficient evidence to show that he did know the chemical composition of the pills.

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 properly admitted evidence, viewed and construed most favorably to the State, is sufficient to support the conviction.

State v. Hirsch, 245 Neb. 31, 45-46, 511 N.W.2d 69, 79 (1994). Thus, when the evidence is viewed in this light, the evidence is sufficient to support the verdict.

MOTION TO RECUSE

Neujahr alleges that the trial court erred in refusing to recuse itself from the sentencing hearing after reading a letter submitted by the county attorney that was made a part of the presentence report. This assignment of error relates only to the sentencing. Since we are reversing the conviction and remanding the cause for a new trial, this question is moot and will not be discussed.

REVERSED AND REMANDED FOR A NEW TRIAL.

19950516

© 1997 VersusLaw Inc.



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