State v. Baltimore, 89-770

• Decision Date: 07 December 1990
• Docket Number: No. 89-770,89-770
• Citation: 236 Neb. 736,463 N.W.2d 808
• Parties: STATE of Nebraska, Appellee, v. Steave BALTIMORE, Appellant.
• Court: Nebraska Supreme Court

Page 808

463 N.W.2d 808

236 Neb. 736

STATE of Nebraska, Appellee, v. Steave BALTIMORE, Appellant.

No. 89-770.

Supreme Court of Nebraska.

Dec. 7, 1990.

Syllabus by the Court

1. Trial: Evidence. Responsibility for maintaining the balance between the probative and the prejudicial effect of evidence is largely within the discretion of the trial court.

2. Trial: Evidence: Appeal and Error. As to evidence which is relevant, the decision of the trial court as to whether "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence," Neb.Rev.Stat. § 27-403 (Reissue 1989), will not be disturbed on appeal unless there has been an abuse of discretion.

3. 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. Evidence. To be relevant, evidence must be rationally related to an issue by a likelihood, not a mere possibility, of proving or disproving the issue to be decided.

5. Evidence. Probative value is a relative concept; the probative value of a piece of evidence involves a measurement of the degree to which the evidence persuades the trier of fact that the particular fact exists and the distance of the particular fact from the ultimate issues of the case.

6. Criminal Law: Evidence: Appeal and Error. Error in admitting evidence in a criminal case is prejudicial unless the State proves that the error was harmless beyond a reasonable doubt.

Thomas M. Kenney, Douglas County Public Defender, and Brian S. Munnelly, Omaha, for appellant.

Robert M. Spire, Atty. Gen., and Susan M. Ugai, Lincoln, for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT and FAHRNBRUCH, JJ.

PER CURIAM.

Defendant, Steave Baltimore, appeals a jury verdict finding him guilty of two counts of unlawful possession with intent to deliver a controlled substance, contrary to Neb.Rev.Stat. § 28-416 (Cum.Supp.1988). One count was a Class III felony, the other a Class IV felony. The defendant was sentenced to two concurrent terms of imprisonment for 5 years.

Defendant assigns as error (1) the admission of evidence contrary to Neb.Rev.Stat. § 27-403 (Reissue 1989), (2) the sustaining of the State's motion in limine regarding the introduction of alleged exculpatory evidence, (3) the allowing of a strike by the prosecutor of a black prospective juror from the jury panel, (4) the denying of defendant's motion for a mistrial, and (5) the excessiveness of the sentences. We reverse.

Undercover Police Officer Kevan Barbour testified that on the evening of August 31, 1988, at approximately 9 o'clock, he was walking past a residence located at 2517 Burdette Street in Omaha. He stated that the defendant, who was sitting on the front porch, called him, Barbour, off the street. The defendant said to "come over to this side." Barbour asked the defendant "if anything was happening," at which time the defendant produced a rolled-up cigarette package and asked Barbour what he needed. Barbour replied that he wanted a 50-cent piece, street talk for a $50 "rock" of crack cocaine. The defendant put the cigarette package away and told Barbour that he did not sell crack.

Barbour then walked away, but knew that soon afterward members of the narcotics unit would execute a search warrant at this same residence. Later that evening, Barbour was directed by his commanding officer to conduct a "reverse sting operation" at that same residence. This is a procedure whereby undercover police officers locate themselves at an area where they believe parties are coming to buy illegal drugs and then the officers make the sales. Barbour returned to the Burdette Street residence, seated himself on the same porch, and at approximately 10:15 p.m. sold two Ritalin and two Talwin tablets, both controlled substances, to a third party, Eric McGee. The defendant was no longer at this location. This testimony was received over the objection of the defendant as to "relevancy, foundation, relief under 403."

On cross-examination Barbour admitted that he did not know if the utilities at the residence were registered to the defendant, nor did he know who owned the particular property. There was no evidence that the defendant permanently resided at these premises.

On redirect examination Barbour was permitted to testify over objection that in street terms the phrase "Is anything happening?" as used by people in the drug culture means "are you--do you have any type of drugs for sale, or are you in pocket?" His testimony in this regard was based on his experience in police work for over 5 years, with participation in approximately 75 setup drug sales.

According to a stipulation between the parties, if a certain representative of the Omaha Public Power District were called to testify, that testimony would be that service was provided to this particular residence and billed to a party by the name of Lola Harris.

William Ihm, a chemist, identified certain pills or tablets contained in an envelope marked exhibit 5 as Ritalin and Talwin, both controlled substances.

Kurt Sorys, an Omaha police officer, testified that he was part of the team which executed a search warrant at 2517 Burdette Street on August 31, 1988. As Sorys approached the house, he saw the defendant and two women on the porch. He shined his flashlight at them and saw the defendant drop his right arm and with his hand make a "little kind of a toss or flicking action and an object left his hand." Another officer, Dennis Clark, came to the scene in about 5 or 10 seconds and was told by Sorys about the incident. Clark went over to the area right below the porch and retrieved a cigarette package.

Officer Clark testified as to his involvement in the execution of the search warrant and how he searched for and found the cigarette package on the ground. He identified that cigarette package as the one placed in the envelope marked exhibit 5.

The defendant did not testify. He did call as a witness a physician, an internal specialist, Jack Lewis, who testified to the fact that from his examination of the defendant he would not have been able to "toss, flip or throw an object with his right hand."

By way of rebuttal, Dora McDavis was called by the State and testified that she saw the defendant once a month. She did not testify as to what her occupation might be or what was the occasion of her meetings with the defendant. However, defense counsel moved for a mistrial on the theory that "the testimony of Mrs. McDavis is that he has now shown a pattern of reporting, which is a kissing cousin to a probation officer inquiry and regiment." The motion was overruled. McDavis testified that she observed the defendant write and smoke with his right hand. She admitted on cross-examination that defendant's fingers did not move the pen; rather, his hand moved the pen.

We deal first with the reverse sting operation. Defendant argues that evidence of such an operation was prohibited by § 27-403, which provides as follows: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."

The responsibility for maintaining the balance between the probative and the prejudicial effect of evidence is largely within the discretion of the trial court. State v. Ryan, 233 Neb. 74, 444 N.W.2d 610 (1989). We have also said innumerable times that a trial court's ruling on the relevancy of evidence will not be disturbed on appeal unless there has been an abuse of discretion. State v. Porter, 235 Neb. 476, 455 N.W.2d 787 (1990). We take this opportunity to amplify or clarify this rule to state that as to evidence which is relevant, the decision of the trial court as to whether "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by...