State v. Boppre
| Decision Date | 30 March 1990 |
| Docket Number | No. 89-481,89-481 |
| Citation | 234 Neb. 922,453 N.W.2d 406 |
| Parties | STATE of Nebraska, Appellee, v. Jeff BOPPRE, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Plea in Abatement: Appeal and Error. Any error in ruling on a plea in abatement is cured by a subsequent finding at trial of guilt beyond a reasonable doubt which is supported by sufficient evidence.
2. Constitutional Law: Bail Bond. The federal prohibition against excessive bail is applicable to the states.
3. Constitutional Law: Bail Bond. Neither the 8th nor the 14th amendment to the U.S. Constitution requires that everyone charged with a state offense be given his liberty on bail pending trial.
4. Venue: Appeal and Error. A trial court's ruling on a motion for change of venue will not be disturbed absent an abuse of discretion.
5. Venue: Appeal and Error. A trial court abuses its discretion in denying a motion to change venue where a defendant establishes that local conditions and pretrial publicity make it impossible to secure a fair trial.
6. Venue. Factors to be considered in determining whether a change of venue is required due to pretrial publicity include the nature of the publicity, the degree to which the publicity has circulated throughout the community, the degree to which the publicity circulated in the area to which venue could be changed, the length of time between the dissemination of the publicity complained of and the date of the trial, the care exercised and ease encountered in selection of the jury, the number of challenges exercised during voir dire, the severity of the offenses charged, and the size of the area from which the venire is drawn.
7. Juror Qualifications. The law does not require that a juror be totally ignorant of the facts and issues involved in a case; it is sufficient if the juror can lay aside his or her impressions or opinions and render a verdict based upon the evidence presented in court.
8. Trial: Venue: Appeal and Error. The refusal of a trial court to grant a motion for a public opinion poll rests within the court's discretion.
9. Venue: Juror Qualifications. Compared to a public opinion poll, voir dire examination is the better, more probative forum for ascertaining the existence of community and individual prejudice or hostility toward an accused.
10. Trial: Witnesses: Indictments and Informations. Pursuant to Neb.Rev.Stat. § 29-1602 (Reissue 1989), a trial court may, in the exercise of its discretion, permit the names of additional witnesses to be endorsed upon an information after the information has been filed when doing so does not prejudice the defendant in the preparation of his defense.
11. Pretrial Procedure: Appeal and Error. A trial court is vested with broad discretion in considering discovery requests of defense counsel, and error can be predicated only upon an abuse of discretion.
12. Due Process: Prosecuting Attorneys: Evidence. Although the due process clause requires a prosecutor to disclose exculpatory evidence which is material to the accused's guilt or innocence, such evidence is material only if there is a reasonable probability that had the evidence been disclosed, the result of the proceeding would have been different.
13. Juror Qualifications: Death Penalty. It is entirely permissible to exclude from jury service venirepersons whose views on capital punishment are such as to prevent or substantially impair their ability to impartially apply the law to the evidence.
14. Trial: Jurors. The retention or rejection of a venireperson as a juror is a matter of discretion with the trial court.
15. Criminal Law: Trial: Juries: Appeal and Error. The determination of whether a jury should be sequestered during the trial of a criminal case is left to the discretion of the trial court, and absent an abuse of that discretion or evidence of jury tampering or misconduct, its decision will not be reversed on appeal.
16. Trial: Evidence: Appeal and Error. When a trial court overrules a motion in limine to exclude certain evidence, the movant must object when that evidence is offered during trial in order to predicate error upon the admission of that evidence.
17. Motions to Suppress: Appeal and Error. Even though a trial court has considered the admissibility of certain evidence in ruling on a pretrial motion to suppress, the movant must object to the introduction of the evidence at trial in order to predicate error upon it.
18. Trial: Testimony. Lay testimony should be excluded whenever the point is reached at which the trier of fact is being told that which it is itself entirely equipped to determine.
19. Rules of Evidence: Other Acts. The rule contained in Neb.Rev.Stat. § 27-404(2) (Reissue 1989) is an inclusionary one which permits the use of evidence of other crimes, wrongs, or acts if such is relevant for any purpose other than to show the defendant's propensity or disposition to commit the crime charged.
20. 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.
21. Convictions: Appeal and Error. A conviction will not be set aside in the absence of a showing that an error prejudiced the defendant.
22. Trial: Evidence: Convictions: Appeal and Error. Improper admission of evidence constitutes harmless error where the evidence is cumulative and there is other competent evidence to support the conviction.
23. Trial: Evidence: Appeal and Error. A ruling excluding evidence is not reviewable unless the substance of the evidence was made known by offer or was apparent from the context within which the question was asked.
24. Trial: Expert Witnesses: Appeal and Error. The admission of evidence from expert witnesses is a matter left to the discretion of the trial court, and its ruling will be upheld absent an abuse of discretion.
25. Criminal Law: Motions to Dismiss: Evidence. On a defendant's motion to dismiss for insufficient evidence of the crime charged against the defendant, the State is entitled to have all its relevant evidence accepted as true, the benefit of every inference reasonably drawn from the evidence, and every controverted fact resolved in its favor.
26. Criminal Law: Directed Verdict. In a criminal case a district court can direct a verdict only when (1) there is a complete failure of evidence to establish an essential element of the crime charged, or (2) the evidence is so doubtful in character and lacking in probative value that a finding of guilt based on such evidence cannot be sustained.
27. Criminal Law: Verdicts: Appeal and Error. A verdict in a criminal case must be sustained if the evidence, viewed and construed most favorably to the State, is sufficient to support that verdict.
28. Motions for New Trial: Appeal and Error. The granting or refusal of a motion for new trial is left to the discretion of the trial court, and in the absence of an abuse of that discretion, the determination will not be disturbed on appeal.
29. Motions for New Trial. In order for a new trial to be granted, it must be shown that a substantial right of the defendant's was adversely affected and that the defendant was prejudiced thereby.
30. Trial: Prosecuting Attorneys: Motions for Mistrial: Juries. Remarks made by the prosecutor during final argument which do not mislead or unduly influence the jury do not rise to the level sufficient to require granting a mistrial.
31. Trial. The responsibility for conducting a trial in an orderly and proper manner for the purpose of ensuring a fair and impartial trial rests with the trial court.
32. Sentences: Appeal and Error. A sentence imposed within the limits prescribed by statute will not be set aside as excessive absent an abuse of discretion by the sentencing judge.
33. Sentences. In imposing a sentence, a sentencing judge should consider, among other things, the defendant's age, mentality, education, experience, and social and cultural background, as well as his or her past criminal record or law-abiding conduct, motivation for the offense, nature of the offense, and the amount of violence involved in the commission of the crime.
34. Sentences: Evidence: Appeal and Error. The mere fact that a defendant's sentence differs from those which have been imposed on coperpetrators in the same court does not, in and of itself, make the defendant's sentence an abuse of discretion; each defendant's life, character, and previous conduct may be considered in determining the propriety of the sentence.
Leonard G. Tabor, Gering, for appellant.
Robert M. Spire, Atty. Gen., and Sharon M. Lindgren, for appellee.
Pursuant to verdicts, defendant-appellant, Jeff Boppre, was adjudged guilty of two charges of first degree murder in violation of Neb.Rev.Stat. § 28-303 (Reissue 1989), two charges of robbery in violation of Neb.Rev.Stat. § 28-324(1) (Reissue 1989), and two charges of using a firearm to commit a felony in violation of Neb.Rev.Stat. § 28-1205(1) (Reissue 1989). He was thereafter sentenced to consecutive terms of imprisonment for life on the murder convictions, to concurrent terms of imprisonment of 8 to 15 years on the robbery convictions, and to imprisonment for 6 2/3 to 20 years on each of the use of a firearm convictions, to be served consecutively to all other sentences. Boppre asserts that the district court erred in (1) overruling his plea in abatement, (2) denying bail, (3) refusing a change of venue, (4) denying payment for a public opinion poll, (5) allowing additional endorsement of witnesses, (6) failing to permit certain discovery, (7) sustaining certain of the State's cause challenges to prospective jurors, (8) overruling Boppre's cause challenges to certain prospective jurors, (9) failing...
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