State v. Brehmer

• Decision Date: 26 March 1982
• Docket Number: No. 44023,44023
• Citation: 211 Neb. 29,317 N.W.2d 885
• Court: Nebraska Supreme Court
• Parties: STATE of Nebraska, Appellee, v. Gary M. BREHMER, Appellant.

Page 885

317 N.W.2d 885

211 Neb. 29

STATE of Nebraska, Appellee, v. Gary M. BREHMER, Appellant.

No. 44023.

Supreme Court of Nebraska.

March 26, 1982.

Syllabus by the Court

1. Criminal Law: Indictments and Informations: Joinder of Actions. Defendants charged in separate informations may be joined for trial if they could have been joined in a single information or complaint.

2. Criminal Law: Joinder of Actions. Joinder is permissible if the defendants are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses.

3. Criminal Law: Joinder of Actions. Two charges arise out of the same act or transaction if they are so closely linked in time, place, and circumstance that a complete account of one charge cannot be related without relating details of the other charge.

4. Criminal Law: Joinder of Actions. Joinder may be permitted only where the facts of each charge can be explained adequately only by drawing upon the facts of the other charge.

5. Criminal Law: Joinder of Actions. The rule against jointly indicting and trying different defendants for unconnected offenses is a long-established procedural safeguard.

6. Criminal Law: Appeal and Error. It is not harmless error to violate a fundamental procedural rule designed to prevent mass trials.

7. Criminal Law: Joinder of Actions. A trial court may not consolidate defendants' cases for trial if joinder of those same defendants is not allowed by Neb.Rev.Stat. § 29-2002(2) (Reissue 1979).

8. Criminal Law: Joinder of Actions. In those cases where multiple defendants are joined for trial in a manner inconsistent with Neb.Rev.Stat. § 29-2002 (Reissue 1979), such misjoinder is prejudicial per se and severance is not a matter of discretion but is a matter of right.

9. Witnesses: Evidence. Proof of contradictory statements of a witness may be received in evidence for the purpose of aiding the jury in estimating the credibility of the witness, but unless made as an admission by a party to the record, such statements may not be utilized as substantive evidence of the facts declared.

10. Witnesses: Impeachment. However, a party is not permitted to get before the jury, under the guise of impeachment, an ex parte statement of a witness by calling him to the stand when there is good reason to believe he will decline to testify as desired, and when in fact he only so declines.

11. Witnesses: Prior Inconsistent Statements: Impeachment. The State may not use a prior inconsistent statement of a witness, under the guise of impeachment, for the primary purpose of placing before the jury substantive evidence which is not otherwise admissible.

12. Witnesses: Prior Inconsistent Statements: Impeachment. A mere refusal to testify or testimony negative in nature indicating a lack of testimonial information does not present the grounds for impeaching the witness that affirmative testimony in favor of the opposite party gives for inquiry concerning prior statements contradictory of the testimony under oath at the trial.

13. Witnesses: Prior Inconsistent Statements: Impeachment. The rule allowing a party to impeach his own witness may not be used as an artifice by which inadmissible matter may be gotten to the jury through the device of offering a witness whose testimony is or should be known to be adverse in order, under the name of impeachment, to get before the jury for its consideration a favorable ex parte statement the witness had made.

14. Judges: Witnesses. The right of a judge, under Neb.Rev.Stat. § 27-614(2) (Reissue 1979), to interrogate a witness should be very sparingly exercised, and generally counsel for the parties should be relied on and allowed to manage and bring out their own case. The actions of the judge in this respect should never be such as to warrant any assertion that they were with a view to assistance of the one or the other party to the cause.

15. Criminal Law: Appeal and Error. The only errors which require reversal of a cause are those prejudicial to the right of the accused, or which constitute the denial of a substantive legal right.

Charles A. Fisher, David E. Veath, and Lynn B. Lamberty, Chadron, for appellant.

Paul L. Douglas, Atty. Gen., and Bernard L. Packett, Lincoln, for appellee.

Heard before KRIVOSHA, C.J., and BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE, and HASTINGS, JJ.

HASTINGS, Justice.

The defendant, Gary M. Brehmer, was convicted by a jury of the January 10, 1980, violation of Neb.Rev.Stat. § 28-517 (Reissue 1979), namely, the receiving, retaining, or disposing of stolen movable property of another, knowing or believing that it had been stolen, to wit, a 1979 Ford pickup truck valued in excess of $1,000. He was sentenced to a term of probation of 3 years, which included imprisonment in the Sheridan County jail for a period of 30 days. On appeal, he has assigned as errors: (1) The improper joinder for trial with a codefendant charged in a separate information with the same offense as well as with an additional count; (2) The admission of certain hearsay evidence under the guise of impeachment; (3) The interrogation of a witness by the trial judge; (4) The overruling of his plea in abatement; (5) The giving of certain instructions; and (6) The insufficiency of the evidence to sustain the jury's verdict. We reverse and remand for a new trial.

Donald Schwarting, a partner of the defendant's in the ownership and operation of Pioneer Mobil station in White Clay, Nebraska, was charged in a separate information with the same crime as that alleged against the defendant, plus a second count of receiving, retaining, or disposing of a stolen 1976 Ford pickup truck, also on January 10, 1980. On motion of the county attorney, the two cases were joined for trial over the objections of both the defendant and Schwarting. Some 3 weeks before trial, motions to sever were argued and overruled.

The evidence adduced would support the following findings: On January 10, 1980, law enforcement officers were contacted by a Jack Jones, a former employee at the Pioneer Mobil station, which led the sheriff and a State Patrol investigator to walk by Schwarting's body shop in Rushville, Nebraska, to look for a stolen pickup truck. A green 1979 Ford pickup truck, matching the description of one stolen from Gordon, Nebraska, was observed inside the shop. On January 11, 1980, after obtaining permission and assistance from Schwarting, the officers entered the shop and identified the truck which had been reported stolen. A 1976 black Ford pickup truck was also observed inside the shop. Examination of the 1979 pickup revealed that the plate containing the so-called public vehicle identification number, referred to as a VIN, was missing from the doorpost where it should be found. Therefore, it was necessary to secure this number from the frame where the same number was stamped. Use of this number allowed the officers to positively determine that the pickup was stolen. An examination of the black 1976 Ford truck disclosed that the public VIN plate on the doorjamb did not correspond with the number stamped on the frame. Further investigation disclosed that this truck had been reported stolen from a South Dakota dealership and that the identification number located on the doorjamb, as well as the license plates attached to the truck, had belonged to a wrecked 1976 red Ford pickup that had been purchased by Schwarting from an Ed Holderness.

According to the testimony of the officers, Schwarting told them that on December 29, 1979, he had been asked by a man by the name of Al to pick up this 1979 truck at a location near the moccasin factory in Pine Ridge, South Dakota, and haul it to Schwarting's body shop to do some work on it. The officers then stated that Schwarting had said that he had picked up the truck on either December 30 or 31, 1979, and that he was alone when he accomplished this. Schwarting, it is claimed, finally admitted that he thought the vehicle might have been stolen, but that he never raised any questions in that regard.

These same officers, Sheriff Talbot and Patrol Investigator Streeter, on January 11, 1980, then talked to the defendant Brehmer, after reading the Miranda rights and warnings to him. They said that Brehmer told him that, at Schwarting's request, he went with him to some place out in the country north of Pine Ridge and picked up this green truck which was sitting on its hubs on the ground out in some trees. He helped Schwarting load the truck onto a trailer which was returned to White Clay and parked behind the filling station. At trial, Brehmer testified that he never saw the green truck again. He also testified that this all happened on December 30, 1979.

The only direct evidence as to when and how Schwarting came into possession of the 1976 black pickup truck was provided by Schwarting himself. According to Investigator Streeter, Schwarting told him during the investigation that the truck belonged to Ed Holderness and that he was to repair the rear seals for him. However, Ed Holderness testified that it was the wrecked 1976 red Ford pickup which he in fact had owned and had sold to Schwarting. This was the truck mentioned earlier in the opinion which had carried the doorjamb serial number and license plates which were later found to be attached to the stolen black pickup. During the course of the trial, Schwarting, apparently giving a different version of the facts, testified that it was this same man, called Al, who had asked him, Schwarting, to take some dents out of the black truck, paint the top, and repair some leaky rear wheel seals. Also, as revealed by his testimony, this truck was left with him, Schwarting, shortly before Thanksgiving of 1979, and he had retained it in his possession since that time, but had not as yet completed the work on it.

Jack Jones, the former Pioneer Mobil station employee, testified that Schwarting...