State v. Buchanan, 43941

• Decision Date: 25 November 1981
• Docket Number: No. 43941,43941
• Citation: 210 Neb. 20,312 N.W.2d 684
• Parties: STATE of Nebraska, Appellee, v. Michael R. BUCHANAN, Appellant.
• Court: Nebraska Supreme Court

Page 684

312 N.W.2d 684

210 Neb. 20

STATE of Nebraska, Appellee, v. Michael R. BUCHANAN, Appellant.

No. 43941.

Supreme Court of Nebraska.

Nov. 25, 1981.

Syllabus by the Court

1. Jury Instructions: Appeal and Error. Failure to object timely to a jury instruction prohibits a party on appeal from contending the instructions were erroneous.

2. Jury Instructions: Appeal and Error. A party who desires more precise jury instructions must request them at the time the instructions are being considered and not on appeal.

3. Jury Instructions: Appeal and Error. If the court has instructed the jury generally on the law of the case and has not withdrawn any essential issues from consideration of the jury, error cannot be predicated on some particular phase of the case unless proper instructions have been requested by the party complaining.

4. Convictions. A conviction may be sustained if the defendant's guilt is established beyond a reasonable doubt from all the evidence in the case, including such reasonable inferences as seem justified in the light of the trier of facts' own experience.

5. Circumstantial Evidence. One accused of a crime may be convicted on the basis of circumstantial evidence if, taken as a whole, the evidence establishes guilt beyond a reasonable doubt. The State is not required to disprove every hypothesis but that of guilt.

6. Directed Verdict. It is only where there is a total failure of competent proof in a criminal case to support a material allegation in the information, or where the testimony adduced is of so weak or doubtful a character that a conviction based thereon could not be sustained, that the trial court will be justified in directing a verdict of not guilty.

Allen Fankhauser of Kotouc, Kotouc, Fankhauser & Maschman, Humboldt, for appellant.

Paul L. Douglas, Atty. Gen., and Dale D. Brodkey, Lincoln, for appellee.

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

KRIVOSHA, Chief Justice.

The appellant, Michael R. Buchanan, was convicted of one count of delivery of a controlled substance and one count of manslaughter. He was thereafter sentenced to a term of 1 year's imprisonment in the Nebraska Penal and Correctional Complex for the unlawful delivery of a controlled substance, and not less than 2 nor more than 10 years' imprisonment in the Nebraska Penal and Correctional Complex for the commission of manslaughter. He has appealed from that judgment and sentence. His assignments of error, though several in number, are essentially but two. The first claim is that the evidence offered to establish the commission of manslaughter was insufficient, thereby entitling Buchanan to a directed verdict of acquittal. Buchanan further maintains that certain of the instructions given by the trial court were erroneous. The record reflects that Buchanan made no objection to the instructions and did not tender any instruction with regard to the matters claimed to be in error. We have examined the record and concluded that there is no error and that the judgment and sentence should be affirmed.

The facts in the case are fairly without dispute and paint a picture of a tragically wasteful day of drinking and drugs which ultimately led to the unnecessary and untimely death of one Jack Belcher. The evidence discloses that Belcher worked at the Cooper Nuclear Plant near Brownville, Nebraska, and lived at a motel in Auburn, Nebraska, with Leonard Wagner, the chief witness for the State. During the day and evening immediately prior to Belcher's death the evidence discloses that Belcher had been drinking, smoking marijuana, and using "green and red pills." According to Wagner, Buchanan and someone else referred to only as "a friend" gave a drug described as ethchlorvynol to Belcher in the form of Placidyl, a prescription capsule sleeping pill.

Wagner testified that about 8 p.m. Belcher, David Isbell, and appellant went into the bathroom together and came out together, and Belcher was "high as a kite and laughing and staggering ...." About a half hour later Belcher, Isbell, and Buchanan again entered the bathroom. This time Wagner followed them into the bathroom. Wagner observed Belcher sitting on the toilet with a needle in his arm, Isbell manipulating the needle, and Buchanan holding Belcher's arm. Wagner testified that the syringe was red from the mixing of the drug with blood, and fluid was being injected into Belcher's arm. Immediately after the injection, Belcher turned blue, started shaking, and made snorting noises. He then lost consciousness for a short period of time and slid off the toilet and became incoherent.

At that point Wagner put Belcher to bed and ordered everyone else to leave. At about 9 p.m. Belcher told Wagner he felt very sick and shortly thereafter began vomiting. Later he again became ill, this time not only vomiting, but his "bowels were running." At that time Wagner contacted other men with whom he worked, who called an ambulance.

After Belcher was taken away in the ambulance Wagner went to Buchanan's room to ask him for the pills Belcher had been given by Buchanan so that an antidote could be found. Buchanan gave him a pill which was later given to the police.

When the police later came into Belcher's motel room with Wagner, Wagner removed a wastebasket from the bathroom. The wastebasket contained a syringe which was later identified and introduced in evidence. Wagner's testimony was corroborated by an investigator with the Auburn Police Department who searched the room. The syringe contained a liquid identified as ethchlorvynol. Furthermore, evidence was introduced which identified the "green pill" which Wagner had obtained from Buchanan as a Placidyl capsule which contained ethchlorvynol.

The emergency room doctor on duty at the Nemaha County Hospital attempted unsuccessfully to save Belcher's life. Soon after Belcher arrived at the hospital, his heart stopped and he quit breathing. The physician attempted resuscitation for 20 to 25 minutes and administered antidote drugs. Certain physical tests were also made before Belcher's death in order to determine the cause of his condition.

The physician determined that Belcher died of pulmonary edema, which is excess fluid in the lungs, with secondary cardiac failure from the inability to oxygenate the heart. He was of the opinion that the cause of the pulmonary edema was "an overdose of drugs."

An autopsy was later performed on Belcher. The pathologist who performed the autopsy testified that the most significant findings he made from his external examination were the presence of recent needle puncture wounds in the skin on the inside of each elbow. There were three on the right arm and two on the left. In the pathologist's view the cause of death was "the result of adverse reaction to multiple drugs administered intravenously, giving rise to the reaction resulting in acute cardiac failure with the pulmonary edema and congestion." Specifically, the pathologist testified that the cause of Belcher's death was "an adverse reaction to these drugs given intravenously which in all three of the drugs are normally taken by mouth, which preparations are not made to be given intravenously and, that, coupled with shooting them intravenously, provoked in this particular individual the adverse reaction leading to his acute heart failure with the pulmonary edema and death."

We turn first to the objection raised by Buchanan that there was error in the instructions. As earlier noted, the record discloses that no objections were made to the instructions nor were any other instructions tendered to the court by Buchanan. We have frequently held that failure to object timely to a jury instruction prohibits a party on appeal from contending the instructions were erroneous. See State v. Tiff, 199 Neb. 519, 260 N.W.2d 296 (1977). And a party who desires more precise jury instructions must request them at the time the instructions are being considered and not on appeal. State v. Lynch, 196 Neb. 372, 243 N.W.2d 62 (1976). Furthermore, a reading of the instructions tendered by the court, taken as a whole, as they must be taken, discloses that the instructions followed the language of the statute. If the court has instructed the jury generally on the law of the case and has not withdrawn any essential issue from consideration of the jury, error cannot be predicated on some particular phase of the case unless proper instructions have been requested by the party complaining. State v. Ford, 186 Neb. 109, 180 N.W.2d 922 (1970). The trial court instructed the jury in the language of the statute. That is all that is required in a criminal case, absent a more specific request. See, State v. Gallegos, 193 Neb. 651, 228 N.W.2d 615 (1975); State v. Sukovaty, 178 Neb. 779, 135 N.W.2d 467 (1965). Buchanan's contention that the instructions were erroneous is without merit and must be overruled.

We turn then to Buchanan's remaining assignment of error, to wit, that the evidence was insufficient to submit the case to the jury. Buchanan argues that the State's evidence is principally circumstantial and that the State has failed to disprove every hypothesis of nonguilt, thereby requiring the trial court to direct a verdict of acquittal. While some decisions of this court may be found which create some confusion as to the State's burden in such a case, the better reasoned decisions of both this court and other courts, including the U.S. Supreme Court, which have written on this matter are to the contrary. See, Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954); State v. Payne, 205 Neb. 522, 289 N.W.2d 173 (1980).

In United States v. Nelson, 419 F.2d 1237 (9th Cir. 1969), the Court of Appeals held that a conviction may be sustained if the defendant's guilt is established beyond a reasonable doubt from all the evidence in the case, including such reasonable inferences as seem justified in the...