State v. Batchelor, 39076
| Decision Date | 18 January 1974 |
| Docket Number | No. 39076,39076 |
| Citation | 191 Neb. 148,214 N.W.2d 276 |
| Parties | STATE of Nebraska, Appellee, v. Charles BATCHELOR, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
When evidence is conflicting regarding a motion for the suppression of evidence, the decision upon the motion is for the court and will not be reversed on appeal in the absence of an abuse of discretion.
Swarr, May, Smith & Andersen, Richard H. Hoch, Richard J. Wegener, Omaha, for appellant.
Clarence A. H. Meyer, Atty. Gen., Calvin E. Robinson, Asst. Atty. Gen., Lincoln, for appellee.
Heard before SPENCER, SMITH, NEWTON, and CLINTON, JJ., and MURPHY, District Judge.
Defendant was convicted of the sale of lysergic acid diethylamide commonly referred to as LSD. Only one tablet was available for testing. Error is alleged in overruling a motion to suppress evidence of chemical tests to which the tablet was subjected made on the ground that a portion of the tablet should have been retained and made available for defendant's use. The defendant was placed on probation. We affirm the judgment.
The State called as a witness the chemist for the state laboratory who had analyzed the tablet. This witness testified that the tablet did contain LSD and described the several tests made to determine this. He stated that one tablet constituted a bare minimum required for a reliable analysis and that use of a smaller amount would render the result questionable. After the tests were completed, the LSD in the residue was broken down, could not be preserved, and was unfit for further testing.
Of the two chemists called by the defendant, one stated half the tablet was sufficient for analysis and the other half could have been preserved, but admitted that better results could be obtained by using the entire tablet and that the volume of work handled in the state laboratory rendered it extremely difficult to take extra measures and retain residuals. He also conceded that the chemist called by the State was competent. Defendant's second chemist was in almost total disagreement with the State's witness on the subject of amounts required for analysis and the possibility of preserving and using residues for additional tests.
Obviously the evidence is conflicting. Under such circumstances it is for the District Court to determine whether or not the defendant was wrongfully or negligently deprived of a right to have the tablet analyzed. In this instance the court found that the defendant was not negligently or intentionally deprived of a right to analyze the tablet. This was not an abuse of discretion.
The rule adopted in State v. Brodrick, 190 Neb. 19, 205 N.W.2d 660, is not applicable here. In that case a different substance was analyzed and it was apparent, indeed conceded, that the residue could have been preserved and further used for analytic purposes.
Defendant also argues suppression of the evidence because of a graph obtained in one of the tests but not...
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State v. Henry
...the tablet. We concluded that the destruction of the tablet constituted neglect under § 29–1913.In contrast to Brodrick, however, in State v. Batchelor,22 we conducted our analysis under §§ 29–1912 and 29–1919 to determine whether a chemical test of a tablet should have been suppressed. We ......
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State v. Harig
...motion to suppress is for the court, and will not be reversed on appeal in the absence of an abuse of discretion. State v. Batchelor, 191 Neb. 148, 214 N.W.2d 276 (1974). There having been no showing of an abuse of discretion, we hold that no error was committed in that The defendant assert......
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State v. Trevino
...such witness as to these foundational matters. See State v. Miner, 216 Neb. 309, 343 N.W.2d 899 (1984). In State v. Batchelor, 191 Neb. 148, 214 N.W.2d 276 (1974), the defendant was convicted of criminal sale of a controlled substance. The State's expert, a chemist who had analyzed a tablet......
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State v. Harris, 42713
...in the absence of a showing of an abuse of discretion. State v. Weinacht, 203 Neb. 124, 277 N.W.2d 567 (1979); State v. Batchelor, 191 Neb. 148, 214 N.W.2d 276 (1974); State v. Harig, 192 Neb. 49, 218 N.W.2d 884 We have reviewed the entire record, both with regard to the pretrial lineup and......