State v. Canbaz
| Decision Date | 26 May 2000 |
| Docket Number | No. S-99-848.,S-99-848. |
| Citation | 259 Neb. 583,611 N.W.2d 395 |
| Parties | STATE of Nebraska, appellee, v. Necdet CANBAZ, appellant. |
| Court | Nebraska Supreme Court |
Michael D. Nelson, of Nelson, McClellan, Omaha, for appellant.
Don Stenberg, Attorney General, and Marilyn B. Hutchinson, Lincoln, for appellee.
Necdet Canbaz was found guilty after a jury trial of first degree murder and use of a weapon to commit a felony in the shooting death of Debora Peralta. Canbaz now appeals.
Peralta and Canbaz began a relationship in approximately 1992 and lived together in Canbaz' home for approximately 4 years prior to Peralta's death. In early July 1998, Peralta ended the relationship with Canbaz and moved out. Canbaz was very upset and angry with Peralta for ending the relationship. He made statements to neighbors and coworkers that he was angry with Peralta and wanted to hurt her and kill her and her family members.
On September 5, 1998, Canbaz took Peralta out for dinner. They then spent the night at Canbaz' home. Canbaz left the following morning, and when he returned home around midday, Peralta was gone.
Peralta had returned to her apartment. At about 12:20 p.m., Peralta called the Sarpy County Family Service Domestic Abuse Program from her apartment. She spoke with Theresa Hamilton, who worked for Family Service, asking questions and seeking general information. After about 2 minutes of conversation, Peralta became very frantic and the pitch of her voice rose. She said, Hamilton then heard Peralta screaming, after which a man came on the line and said hello three times. Hamilton did not answer, and after about 30 seconds, she disconnected and called the 911 emergency dispatch service, giving them Peralta's telephone number.
Peralta ran outside. Canbaz ran after her and shot her in the back of the head. Peralta collapsed on the sidewalk. Canbaz came up to her and shot her again in the neck. Canbaz then left the scene in his Jeep and later went to his ex-wife's home. He left his ex-wife a note saying that he had killed Peralta. The police, acting on information received from several witnesses to the shooting, arrested Canbaz later that day. After being properly informed of his Miranda rights, Canbaz gave a statement to the police.
In Canbaz' statement to the police, he admitted that he was very upset when Peralta moved out. He admitted that Peralta took out a protection order against him after the move because she was scared. He admitted that he had a sale in late August to dispose of his belongings. He admitted that he went to Peralta's apartment the day of the shooting, purportedly to recover $30,000 which she had taken from him when she left his home earlier that day. Canbaz stated Peralta was on the telephone when he pushed away some bookcases blocking the door and entered the apartment and that he picked up the receiver and said hello. Further, he admitted that as they were leaving the apartment, Peralta ran away from him and that he shot her. He also stated he had an airline ticket to leave for Turkey to see his father, with a departure date a few days after the shooting. However, he denied ever saying that he would kill Peralta or her family.
Canbaz was charged with first degree murder and use of a weapon to commit a felony. Canbaz pled not guilty. At trial, after the State had presented about two-thirds of its evidence, the court met with counsel in chambers to discuss the State's motion in limine concerning testimony to be presented by Dr. Robert Gutnick, Canbaz' medical expert. The State also informed Canbaz' attorney at this meeting that it intended to have a rebuttal expert listen to Gutnick's testimony. At the end of the conference, Canbaz' attorney made a request to sequester witnesses, which the court granted. The defendant did not request that the court sequester the State's rebuttal witness.
Canbaz did not raise an insanity defense, but instead introduced expert medical testimony from Gutnick in an effort to negate the State's evidence of premeditation. Gutnick opined that at the time of the shooting, Canbaz was suffering from a major depressive disorder with psychosis, panic disorder, and disassociative amnesia. However, Gutnick also testified that Canbaz could, at the time this incident occurred, form an intent of action. Gutnick's opinions were based on medical records from Canbaz' general physician, Dr. David Jasper; medical records from Canbaz' counselor, Roger Yarns, M.S.W.; the police reports on the shooting, including Canbaz' statement; and a 2½-hour medical examination performed by Gutnick.
After Gutnick testified, the State called Dr. Y. Scott Moore as a rebuttal witness concerning Gutnick's testimony. Moore's opinions were based on the same records that Gutnick used, plus Gutnick's written report from his examination of Canbaz and Gutnick's testimony at trial. Moore opined that Canbaz was not suffering from a major depressive disorder at the time of the shooting because Canbaz did not display significant characteristics common to a major depressive disorder. Moore also opined that Canbaz was not suffering from disassociative amnesia because Canbaz was able to give a clear account of the events during, prior to, and after the shooting. Canbaz objected to Moore's testimony on the basis of foundation, violation of the pretrial discovery order, and violation of the witness sequestration order. He also objected to the testimony of other witnesses, namely Hamilton, the Family Service worker who took Peralta's call; Gene Simon and Sandy Simon, Canbaz' neighbors; Erin Whittington, an acquaintance of Canbaz; and Catherine Clemons and Diane Handley, Canbaz' coworkers. These objections were overruled.
Canbaz was found guilty and sentenced to life imprisonment for the murder of Peralta and 5 to 10 years' imprisonment for the use of a weapon to commit a felony.
Canbaz asserts, rephrased and summarized, that the trial court erred in (1) allowing into evidence the testimony of Moore, Hamilton, Whittington, Gene Simon, Sandy Simon, Handley, and Clemons and (2) overruling Canbaz' motion for a new trial.
The admissibility of evidence is reviewed for an abuse of discretion, where the Nebraska rules of evidence commit the evidentiary question at issue to the discretion of the trial court. State v. Sanchez, 257 Neb. 291, 597 N.W.2d 361 (1999); State v. Chojolan, 253 Neb. 591, 571 N.W.2d 621 (1997).
When judicial discretion is not a factor involved in assessing admissibility, the court's application of the Nebraska rules of evidence will be upheld unless clearly erroneous. State v. Jacob, 242 Neb. 176, 494 N.W.2d 109 (1993).
The decision whether to exclude expert witness testimony in a criminal case is within the discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. State v. Larsen, 255 Neb. 532, 586 N.W.2d 641 (1998).
In a criminal case, a motion for new trial is addressed to the discretion of the trial court, and unless an abuse of discretion is shown, the trial court's determination will not be disturbed. State v. Clark, 255 Neb. 1006, 588 N.W.2d 184 (1999); State v. Larsen, supra.
Canbaz first asserts that the trial court erred in admitting the expert testimony of Moore. The decision whether to exclude expert witness testimony in a criminal case is within the discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. State v. Larsen, supra. An abuse of discretion takes place when the sentencing court's reasons or rulings are clearly untenable and unfairly deprive a litigant of a substantial right and a just result. State v. Bartholomew, 258 Neb. 174, 602 N.W.2d 510 (1999).
At trial, Canbaz' attorney objected to Moore's testimony on the basis of foundation, stating, "My foundational objection is that this person has never met Mr. Canbaz and, therefore, does not have foundation to give testimony or any opinions in this case." Opinion evidence which is unsupported by appropriate foundation is not admissible. State v. Clark, supra. Thus, according to Canbaz, the trial court abused its discretion in allowing Moore to testify.
In his brief, Canbaz relies on Tvrz v. State, 154 Neb. 641, 48 N.W.2d 761 (1951), to assert that a personal examination of a defendant by the testifying expert is required in order for a medical expert to have the proper foundation to render an opinion regarding the defendant's state of mind. In Tvrz, we stated three possible ways to lay a proper foundation: acquaintance with the party under investigation, a medical examination made by the expert, or a hypothetical case stated to the expert in court. Thus, Tvrz does not support Canbaz' assertion that a personal medical examination is necessary. Furthermore, in 1975, the Legislature adopted Neb.Rev. Stat. § 27-703 (Reissue 1995), regarding expert testimony. The statute states:
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.
The trial court did not abuse its discretion in determining that Moore possessed sufficient foundation to offer his opinion regarding Canbaz' mental state under § 27-703. An expert must possess facts which enable him or her to express a reasonably accurate conclusion as distinguished from a mere guess or conjecture. State v. Johnson, 215 Neb. 391, 338 N.W.2d 769 (1983). Here, the record shows that Moore's opinions were based on a review of the same information upon which Gutnick...
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