State v. Bradley

• Decision Date: 19 October 1990
• Docket Number: No. 89-360,89-360
• Citation: 461 N.W.2d 524,236 Neb. 371
• Parties: STATE of Nebraska, Appellee, v. Con M. BRADLEY, Appellant.
• Court: Nebraska Supreme Court

Page 524

461 N.W.2d 524

236 Neb. 371

STATE of Nebraska, Appellee, v. Con M. BRADLEY, Appellant.

No. 89-360.

Supreme Court of Nebraska.

Oct. 19, 1990.

Syllabus by the Court

1. Appeal and Error. Neb.Ct.R. of Prac. 9 D(1)d (rev. 1989) limits the review of the Nebraska Supreme Court to claimed errors which are assigned and argued in an appellant's brief.

2. 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.

3. Trial: Juries: Appeal and Error. If there is some incorrect conduct in a jury trial which, on a review of the entire record, did not materially influence the jury in its verdict adverse to a substantial right of the defendant, the error is harmless.

4. Convictions: Appeal and Error. A conviction will not be set aside in the absence of a showing that a nonevidential error prejudiced the defendant.

5. Convictions: Appeal and Error. In order for an error to entitle one to reversal of a conviction, actual prejudice must be shown, rather than merely the possibility of prejudice.

6. Trial: Evidence: Convictions: Appeal and Error. The improper admission of evidence constitutes harmless error where the evidence is cumulative and there is other evidence to support the conviction.

7. Constitutional Law: Trial: Pretrial Procedure. While an accused has the right to be present at all stages of the trial when the accused's absence might frustrate the fairness of the proceedings, the sixth amendment to the U.S. Constitution does not require the presence of the accused at every pretrial hearing.

8. Trial: Venue. The refusal of a trial court to grant a motion for a public opinion poll rests within that court's discretion.

9. Venue: Juror Qualifications. Voir dire examination is the better, more probative forum for ascertaining the existence of community and individual prejudice or hostility toward the accused than is a public opinion poll.

10. Juror Qualifications. The law does not require that a juror be totally ignorant of the facts and issues involved; 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.

11. 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.

12. Trial: Juries. Except when there is a showing that without sequestration a party's rights would be prejudiced, a party has no right to examine a venireperson out of the presence of all other venirepersons.

13. Trial: Juries. The retention or rejection of a venireperson as a juror is a matter of discretion with the trial court.

14. Criminal Law: Trial: Juries. Whether a jury is to be kept together before submission of the cause in a criminal trial is left to the discretion of the trial court.

15. Criminal Law: Trial: Juries: Appeal and Error. To warrant reversal, denial of a motion to sequester the jury before submission must be shown to have prejudiced the defendant.

16. Trial: Records: Rules of the Supreme Court. A trial court has a duty to provide a party with a verbatim trial record which comports to the requirements of Neb.Ct.R. of Official Ct.Rptrs. 4 (rev. 1989), and such record shall, at a party's request, include any comments the trial judge may have made.

17. Trial: Records: Judges. The failure of a trial judge to keep a proper verbatim record may constitute grounds for judicial discipline.

18. Trial: Records: Liability. The failure of a court reporter to fulfill the duties of that office may make the reporter civilly liable to a litigant damaged thereby.

19. Trial: Records: Appeal and Error. While it is true that a party is entitled to have reported any comments made by a trial judge, it is, in the final analysis, in the absence of any prejudicial comment's being made in the presence of the jury, the correctness and effect of any questioned ruling which controls the disposition of an appeal.

20. Convictions: Records. In the absence of a showing of prejudice, an omission from a bill of exceptions does not vitiate a defendant's conviction.

21. Motions for Continuance: Appeal and Error. There is no abuse of discretion by the district court in denying a request for a continuance unless it clearly appears that the movant suffered prejudice as a result of that denial.

22. Criminal Law: Trial: Evidence: Appeal and Error. An error in admitting or excluding evidence in a criminal trial, whether of constitutional magnitude or otherwise, is prejudicial unless it can be said that the error was harmless beyond a reasonable doubt.

23. Criminal Law: Evidence: Appeal and Error. In reviewing a criminal case for alleged insufficiency of the evidence, the State is entitled to have all relevant evidence favorable to the State treated as true, as well as to have every beneficial inference reasonably deducible from that evidence.

24. Convictions: Appeal and Error. It is not the province of an appellate 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 finder of fact, whose findings must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support them.

25. Criminal Law: Verdicts: Appeal and Error. On a claim of insufficiency of the evidence, the Supreme Court will not set aside a guilty verdict in a criminal case where such verdict is supported by relevant evidence.

26. Criminal Law: Verdicts: Appeal and Error. Only where evidence lacks sufficient probative force as a matter of law may the Supreme Court set aside a guilty verdict as unsupported by evidence beyond a reasonable doubt.

27. Criminal Law: Directed Verdict. In a criminal case a trial 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.

28. Trial: Prosecuting Attorneys: Motions for Mistrial: Proof. Before it is necessary to grant a mistrial due to prosecutorial misconduct, the defendant must show that a substantial miscarriage of justice has actually occurred.

29. 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.

Tad D. Eickman and Lynn B. Lamberty, of Steinacher, Vosoba, Hanson & Eickman, for appellant.

Robert M. Spire, Atty. Gen., and Linda L. Willard, for appellee.

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

CAPORALE, Justice.

I. INTRODUCTION

Defendant, Con M. Bradley, was, pursuant to verdict, adjudged guilty of first degree murder, in violation of Neb.Rev.Stat. § 28-303 (Reissue 1989), and the use of a firearm to commit a felony, in violation of Neb.Rev.Stat. § 28-1205 Reissue 1989). He was thereafter sentenced to life imprisonment on the murder conviction and to imprisonment for 20 years on the use of a firearm conviction. In this appeal he assigns and discusses in his briefs 24 claimed errors which, in summary, combine to challenge the district court's rulings or conduct with respect to (1) Bradley's plea in abatement, (2) reciprocal discovery, (3) Bradley's absence during certain proceedings, (4) data relating to the State's witnesses, (5) venue, (6) seating and managing the jury, (7) endorsement of witnesses, (8) making the trial record, (9) admission of certain evidence, (10) sufficiency of the evidence, and (11) conduct of the prosecutor.

In addition, Bradley assigns six errors which he does not discuss in his briefs, namely, the district court's (1) method of selecting alternate jurors, (2) refusal to allow him to employ a pathologist, except for limited purposes, (3) overruling a motion in limine, (4) refusal to permit "continuing objections," (5) failure to include in its charge to the jury certain instructions he requested, and (6) pressuring him into testifying. Because this court ought not to both conceptualize arguments and sit in judgment of them, Neb.Ct.R. of Prac. 9 D(1)d (rev. 1989) limits our review to claimed errors which are assigned and argued in an appellant's brief. Accordingly, we do not consider the six unargued assignments of error last listed above. State v. Jolitz, 231 Neb. 254, 435 N.W.2d 907 (1989); State v. Broadstone, 233 Neb. 595, 447 N.W.2d 30 (1989).

None of the 11 summarized assignments of error properly before us having merit, we affirm.

II. FACTS

The victim, Kirk Glasgow, was a resident of Lincoln, Lancaster County, Nebraska, who disappeared after working his 3:30 p.m. to midnight shift at his place of employment in Crete, Saline County, Nebraska, on July 23, 1987. His remains, consisting only of bones, including the skull, were found by a farmer who was disking a field in the last-mentioned county on March 23, 1988. An autopsy of the remains revealed two bullet wounds to the skull, either of which could have been fatal.

At the time of his disappearance, the victim was involved in divorce proceedings and was separated from his wife, Valerie Knobel Glasgow. The victim and his wife had two children, a son and a daughter who were, respectively, 4 and 2 years old. Although the wife had temporary custody of the children, they spent 3 days each week with the victim in addition to spending every other weekend with him.

The victim and his wife had agreed that the children would spend Friday, July 24, 1987, with him while the wife worked. When the wife arrived at the victim's residence that...