State v. Bartlett, 39989

• Decision Date: 09 October 1975
• Docket Number: No. 39989,39989
• Citation: 233 N.W.2d 904,194 Neb. 502
• Parties: STATE of Nebraska, Appellee, v. George BARTLETT, Appellant.
• Court: Nebraska Supreme Court

Page 904

233 N.W.2d 904

194 Neb. 502

STATE of Nebraska, Appellee, v. George BARTLETT, Appellant.

No. 39989.

Supreme Court of Nebraska.

Oct. 9, 1975.

Syllabus by the Court

1. To prove unlawful possession of a narcotic drug, the evidence must show that the accused had physical or constructive possession with knowledge of the presence of the drug and its character as a narcotic.

2. Proof of guilty knowledge may be made by evidence of acts, declarations, or conduct of the accused from which the inference may be fairly drawn that he knew of the existence and nature of the narcotic drug at the place where it was found. But mere presence at a place where a narcotic drug is found is not sufficient.

3. Joint possession cannot be established by the fact that the defendant is or has been in the company of one who has a narcotic drug on his person. An additional independent factor linking the defendant with the narcotic must be shown.

4. In determining the sufficiency of evidence to sustain a conviction in a criminal prosecution, it is not the province of this court to resolve conflicts in the evidence, pass on the credibility of witnesses, determine the plausibility of explanations, or weigh the evidence. Such matters are for the jury.

5. The test of the sufficiency of circumstantial evidence in a criminal prosecution is whether the facts and circumstances tending to connect the accused with the crime charged are of such conclusive nature as to exclude to a moral certainty every rational hypothesis except that of guilt.

6. If a defendant waives his right to have physical evidence suppressed by failing to make a timely motion to suppress under the provisions of section 29--822, R.R.S.1943, he cannot avoid the consequence of his waiver and secure the results of an order of suppression by the expedient of a late motion to suppress testimony or to limit the interrogation of his own witnesses on matters which are relevant and material.

7. Where, as a consequence of a lawful search, police officers lawfully obtain knowledge of relevant and material facts they may testify to those facts.

8. No judgment shall be set aside, or new trial granted, or judgment rendered in any criminal case, on the grounds of misdirection of the jury, or the improper admission or rejection of evidence, or for error as to any matter of pleading or procedure, if the Supreme Court, after an examination of the entire cause, finds that no substantial miscarriage of justice has actually occurred.

9. It is not error for the trial court to refuse to give instructions tendered where the substance of the request is covered by instructions given.

Thomas P. Kelley, Michael A. Kelley, Kelley & Kelley, Omaha, for appellant.

Paul L. Douglas, Atty. Gen., Gary B. Schneider, Sp. Asst. Atty. Gen., Lincoln, for appellee.

Heard before WHITE, C.J., SPENCER, BOSLAUGH, McCOWN, NEWTON, and CLINTON, JJ., and KUNS, Retired District Judge.

CLINTON, Justice.

The defendant, Bartlett, was found guilty by a jury of knowingly or intentionally possessing heroin with intent to deliver. After the verdict, he was found guilty by the court on a second count of being a habitual criminal and was sentenced to a term of 20 to 30 years in the Nebraska Penal and Correctional Complex. On appeal he assigns as error the following: (1) He did not receive a fair trial because the prosecution intentionally and deliberately attempted to establish an association of the defendant with persons known or reputed to be dealers in controlled substances. (2) The court erred in overruling a pretrial motion of the defendant asking the court to prohibit the prosecutor from questioning the defendant concerning a large sum of cash purportedly found in the defendant's home at about the time of the offense charged. (3) The court erred in refusing to give a requested instruction that the jury insist on clear and convincing proof that defendant had the controlled substance in his possession. (4) The habitual criminal statute is unconstitutional. (5) The sentence is excessive. (6) The evidence was insufficient to sustain the verdict. We affirm.

Economy of space and time will be served by dealing with the last assignment first. The defendant, for reasons not explicitly appearing in the record, was suspected by the Omaha police of being a dealer in controlled substances and for the reason became the subject of surveillance by some of the department's undercover officers. This surveillance centered on the defendant's activities at Russ' Lounge in Omaha, Nebraska, from July 31 to August 6, 1974, on which last date he was arrested together with one John Davis in Davis' automobile parked in the lounge parking lot. At that time a quantity of heroin was discovered in the vehicle.

Surveillance by the officers on July 31, August 1, and August 4, 1974, indicated that surreptitious exchanges of money and small packages were taking place between the defendant and others. Examples of the apparent nature of some of these transactions will suffice. On one occasion, when Bartlett was in the lounge, he was joined by persons identified as Larry and Barbara Glouser. After a brief period Mrs. Glouser left the booth in which the persons were seated, went to the restroom, and shortly returned. Upon her return she was seen to hand a small white package to Glouser. He in turn handed it under the table to Bartlett. After a few minutes conversation the Glousers left. Bartlett then made a telephone call and a few minutes later, after apparently making observation for someone's expected arrival in the parking lot, went to the parking lot where he handed something to another individual. Bartlett then returned alone to the lounge. On another occasion the defendant was observed in the lounge receiving money from one Fuller, then leaving the lounge through the rear door to the parking lot where his motor vehicle was located, and then returning and handing something to Fuller. Shortly thereafter Bartlett made telephone calls. A little later a black male entered through the rear door of the lounge and walked through the bar without speaking or acknowledging anyone, and on out the front door. Immediately thereafter Bartlett left through the rear door and was then seen meeting this black man at that person's automobile on the parking lot. After a brief time Bartlett returned to the bar and the other individual departed.

On August 6, 1974, the undercover officers again had Bartlett under surveillance at Russ' Lounge. On this occasion they had received instructions from their superiors that if they observed an apparent transaction taking place they were to make arrests. On this occasion Bartlett entered the bar through the front door. He then made a telephone call or calls and after drinks and conversation with third persons he left through the rear door and joined John Davis (the same individual who had walked through the bar without recognition of the defendant on the previous occasion) in an automobile in the parking lot. Two of the officers approached the car from the rear and on opposite sides. One of the officers saw currency in Bartlett's left hand and a roundish ball of foil on the seat between the two men. The two were directed to get out of the automobile and were frisked. Immediately thereafter the package of foil was recovered from the floor of the car on the passenger's side where Bartlett had been seated. It contained what is described as three 'spoons' of what later chemical analysis determined to be heroin. The evidence shows that a spoon sells on the street for $100 and the heroin is later broken down into separate packages of 15 or 18 'hits' which sell for $10 each. Currency in the amount of $819 was found on Bartlett at the time of his arrest and $425 on Davis.

Bartlett took the stand on his own behalf. He denied he had ever been engaged in the drug traffic. He denied knowledge of the presence of heroin in Davis' car and explained his presence there by stating that he had been asked by his wife, who was present in the bar with him, to close the window on her car as it had just started to rain. When Bartlett left the bar through the rear door to do this chore, Davis, whom he had known previously, had just driven into the parking lot and asked Bartlett to get in his car as he wanted to talk to Bartlett about getting a job with Bartlett's employer, a waterproofing company.

The foregoing prosecution evidence, if believed by the jury, was sufficient to permit it to find that the defendant was knowingly engaged in the sale of heroin to Davis. The applicable rules are: 'To prove unlawful possession of a narcotic drug, the evidence must show that the accused had physical or constructive possession with knowledge of the presence of the drug and its character as a narcotic. . . . Proof of guilty knowledge may be made by evidence of acts, declarations, or conduct of the accused from which the inference may be fairly drawn that he knew of the existence and nature of the narcotic drug at the place where it was found. But mere presence at a place where a narcotic drug is found is not sufficient. . . . Joint possession cannot be established by the fact that the defendant is or has been in the company of one who has a narcotic drug on his person. An additional independent factor linking the defendant with the narcotic must be shown.' State v. Faircloth, 181 Neb. 333, 148 N.W.2d 187. So far as the questions of his credibility are concerned, the rule is: 'In determining the sufficiency of evidence to sustain a conviction in a criminal prosecution, it is not the province of this court to resolve conflicts in the evidence, pass on the credibility of witnesses, determine the plausibility of explanations, or weigh the evidence. Such matters are for the jury.' State v. Spidell, 194 Neb. 494, 233 N.W.2d 900.

Defendant asserts that the evidence against him is circumstantial and insufficient because a reasonable theory...