State v. Borchardt

• Decision Date: 31 October 1986
• Docket Number: No. 86-355,86-355
• Citation: 224 Neb. 47,395 N.W.2d 551
• Parties: STATE of Nebraska, Appellee, v. Alex J. BORCHARDT, Appellant.
• Court: Nebraska Supreme Court

Page 551

395 N.W.2d 551

224 Neb. 47

STATE of Nebraska, Appellee, v. Alex J. BORCHARDT, Appellant.

No. 86-355.

Supreme Court of Nebraska.

Oct. 31, 1986.

Syllabus by the Court

1. Pleadings: Trial: Evidence: Appeal and Error. Ordinarily, the overruling of a motion in limine does not eliminate the need to object to the introduction of evidence in order to preserve error.

2. Pleadings: Trial: Appeal and Error. One wishing to preserve error on the basis of remarks contained in an opening statement generally must object to the questioned remarks when made, notwithstanding the overruling of a motion in limine.

3. Trial: Appeal and Error. A litigant may rely on a trial judge's announcement of what he or she will permit an opponent to do.

4. Motions for Mistrial. The determination of whether to grant a motion for mistrial lies within the sound discretion of the trial court.

5. Motions for Mistrial. A mistrial is properly granted when an event occurs during the course of a trial which is of such a nature that its damaging effects cannot be removed by proper admonition or instruction to the jury and would thus result in preventing a fair trial. Egregiously prejudicial statements of counsel, the improper admission of prejudicial evidence, and the introduction to the jury of other incompetent matters are examples of occurrences which may constitute such events.

6. Motions for Mistrial: Appeal and Error. Error cannot ordinarily be predicated on the failure to grant a mistrial if an objection or motion to strike improper material is sustained and the jury is admonished to disregard such material.

7. Attorney and Client. A lawyer should represent a client zealously within the bounds of the law.

8. Criminal Law: Prosecuting Attorneys. The responsibility of a public prosecutor differs from that of the usual advocate; his or her duty is to seek justice, not merely to convict. This special duty exists because (1) the prosecutor represents the sovereign and therefore should use restraint in the discretionary exercise of governmental powers, such as in the selection of cases to prosecute; (2) during trial, the prosecutor is not only an advocate but he or she also may make decisions normally made by an individual client, and those affecting the public interest should be fair to all; and (3) in our system of criminal justice the accused is to be given the benefit of all reasonable doubts. With respect to evidence and witnesses, the prosecutor has responsibilities different from those of a lawyer in private practice; the prosecutor should make timely disclosure to the defense of available evidence known to him or her that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment. Further, a prosecutor should not intentionally avoid pursuit of evidence merely because he or she believes it will damage the prosecutor's case or aid the accused.

9. Attorneys at Law. In appearing in his or her professional capacity before a tribunal, a lawyer shall not state or allude to any matter that he or she has no reasonable basis to believe is relevant to the case or that will not be supported by admissible evidence.

10. Expert Witnesses: Appeal and Error. The admission of expert testimony is ordinarily within the discretion of the trial court, and its ruling will be upheld in the absence of an abuse of discretion.

11. Trial: Evidence: Rules of Evidence: Words and Phrases. Evidence of a test result cannot be characterized as "scientific" or qualify as "technical or other specialized knowledge," and thus within the purview of Neb.Rev.Stat. § 27-702 (Reissue 1985), unless and until it is established that the test result demonstrates what it is claimed to demonstrate.

12. Convictions: Appeal and Error. A conviction will not be set aside in the absence of a showing that an error created prejudice.

13. Trial: Evidence: Appeal and Error. In resolving a challenge to the sufficiency 14. Appeal and Error. It is not for this court to accept one version of a case over another; that is for the jury.

of the evidence, it is not the province of this court to resolve conflicts in the evidence, pass on the credibility of witnesses, determine the plausibility of [224 Neb. 49] explanations, or weigh the evidence. Such is for the trier of fact and must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support it.

15. Verdicts: Appeal and Error. After a jury has considered all of the evidence and returned a verdict of guilty, that verdict may not, as a matter of law, be set aside on appeal for insufficiency of the evidence if the evidence sustains some rational theory of guilt.

James R. Mowbray of Mowbray, Chapin & Walker, P.C., Lincoln, for appellant.

Robert M. Spire, Atty. Gen. and Lynne R. Fritz, Lincoln, for appellee.

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

CAPORALE, Justice.

A county court jury found defendant, Alex J. Borchardt, guilty of operating or being in actual physical control of a motor vehicle while under the influence of alcoholic liquor in violation of Neb.Rev.Stat. § 39-669.07 (Reissue 1985). After an enhancement hearing, during which it was established that defendant had once before been convicted of drunk driving, the county court adjudged him guilty of second offense drunk driving and sentenced him to imprisonment for 30 days, ordered him to pay a $500 fine and costs, and suspended his driver's license for 1 year. The district court affirmed the county court's judgment and sentence. In this court defendant urges the district court erred in failing to find error appearing on the record made in the county court, in that the county court erred in (1) overruling his motion in limine, (2) overruling his motions for a mistrial, (3) admitting testimony concerning the results of the field horizontal nystagmus test, and (4) determining the evidence sufficient to support the jury's finding of guilt. We affirm.

FACTS

On June 11, 1985, at approximately 10:40 p.m., Trooper Gerald Carlson of the Nebraska State Patrol was proceeding north on 84th Street in Lincoln when he observed a vehicle driven by defendant approaching him in the southbound lane. Carlson detected from the headlights of defendant's vehicle that it was continually crossing over the centerline. At one point defendant's vehicle crossed completely into the northbound lane, forcing Carlson into a ditch to avoid a collision. Carlson then turned his vehicle around, activated his flashing lights, and pursued defendant. Defendant continued to cross over the centerline with the left wheels of his vehicle and once again crossed completely into the northbound lane. Carlson believed that because he had been following defendant with his emergency lights flashing, an approaching vehicle had pulled over to the shoulder, thus avoiding a possible collision with defendant. Defendant eventually pulled over and came to an abrupt stop.

Carlson then pulled his patrol car behind defendant's vehicle and approached defendant. Carlson observed that defendant's eyes were bloodshot, that he emitted a moderate odor of alcohol, and that he sometimes slurred his speech. Carlson informed defendant that he had crossed the centerline several times and had nearly run his patrol car and another vehicle off the road. Defendant replied he did not feel that he had done anything wrong.

Carlson then asked defendant to accompany him to his patrol car in order that sobriety tests could be performed. While walking to the patrol car, defendant staggered and leaned on the hood of the patrol car for support. Once inside the patrol car, defendant was asked to perform several field sobriety tests. Carlson first asked Defendant was then asked to perform two further sobriety tests outside the patrol car in order to test his balance. First, defendant was asked to walk, placing one foot in front of the other, heel to toe, on a roadside line. Defendant was not able to walk heel to toe at all times and was unable to stand still without swaying. Defendant was next asked to perform a one-leg stand, raising the opposite foot off the ground 3 to 6 inches. During this test, defendant swayed "badly" and placed the suspended foot on the ground three times. Carlson testified that based on all of the facts before him, he had concluded that defendant was under the influence of alcohol.

                defendant to recite the alphabet from a to z.   Defendant slowly, but correctly, recited the alphabet to the letter p, when he stopped and told Carlson that he did not desire to continue.  Defendant was then asked to count backward from 100 to 70 by 1s.  This test was performed correctly.  Defendant was next asked to count forward from 1 to 10, then backward from 10 to 1.  Defendant counted from 1 to 10 correctly;  however, he became confused when counting backward and mixed the numbers.  Finally, Carlson asked defendant to perform a horizontal nystagmus test, the purpose of which was [224 Neb. 51] to check defendant's eyes for unusual twitching or jerking, the presence of which would indicate intoxication.  Carlson testified that during this test he observed a definite twitching in defendant's left eye
                

Carlson and defendant got back into the patrol car in order for Carlson to give defendant a preliminary breath test. Defendant asked Carlson if he could be let go or allowed to park his car, to which the officer replied in the negative. Defendant then again told Carlson he felt he had not done anything wrong and wanted to speak with someone of higher authority. Carlson contacted Sgt. Kevin Stukenholtz and asked Stukenholtz to meet him at the site of the investigation.

While waiting for Stukenholtz, Carlson performed the preliminary breath test, then informed defendant that he was under arrest for driving while intoxicated. Defendant repeated he felt that he had not done anything wrong and again asked if there were...