State v. Costello, 41149

• Decision Date: 13 July 1977
• Docket Number: No. 41149,41149
• Citation: 256 N.W.2d 97,199 Neb. 43
• Parties: STATE of Nebraska, Appellee, v. Anthony COSTELLO, Appellant.
• Court: Nebraska Supreme Court

Page 97

256 N.W.2d 97

199 Neb. 43

STATE of Nebraska, Appellee, v. Anthony COSTELLO, Appellant.

No. 41149.

Supreme Court of Nebraska.

July 13, 1977.

Syllabus by the Court

1. Under section 29-1207, R.R.S.1943, every person indicted or informed against for any offense shall be brought to trial within 6 months, and in felony cases the 6-month period commences to run from the date the indictment is returned or the information filed, and not from the time the complaint is filed in county court.

2. The constitutional right to a speedy trial and the statutory implementation of that right under section 29-1207, R.R.S.1943, exist independently of each other. Any unreasonably delay occurring prior to the filing of an information will be considered, in conjunction with statutory requirements, in determining whether or not a defendant has been denied the constitutional right to a speedy trial.

3. The power of a court to try an accused is not impaired by the fact that officers used unlawful force or deception to bring him from another jurisdiction to the place of trial.

4. A trial judge's overruling of a motion for change of judge on the ground of his bias and prejudice will be affirmed on appeal unless the record establishes bias or prejudice as a matter of law.

5. The District Court, before trial, may in its discretion permit amendment of a criminal information, provided the amendment does not change the nature or identity of the offense charged, and the amended information does not charge a crime other than the one on which the accused has his preliminary examination.

6. A contention that a mistrial should have been granted because the prosecutor argued law before the jury cannot be reviewed on appeal where the remarks of the prosecutor were not recorded in the bill of exceptions.

7. It is the duty of the prosecuting attorney to conduct the trial in a fair and impartial manner and not to inflame the prejudices or excite the passions of the jury against the accused.

8. Whether or not inflammatory remarks by a prosecutor are sufficiently prejudicial to constitute error must be determined upon the facts of each particular case.

9. Under section 27-1003, R.R.S.1943, a duplicate is admissible to the same extent as an original unless a genuine question is raised as to the authenticity of the original, or in the circumstances it would be unfair to admit the duplicate in lieu of the original.

10. Evidence of other crimes than that with which the accused is charged is generally not admissible in a criminal prosecution, but such evidence is admissible to show motive, intent, or guilty knowledge; or if it establishes a course of conduct, scheme, design, or intent.

11. A new trial on the ground of newly discovered evidence may be granted when the evidence is competent, material, and credible, and so potent that, by strengthening evidence already offered, a new trial would probably result in a different verdict.

12. The trial court is entitled to consider all relevant evidence or information which may be used as assistance in determining the kind and extent of punishment to be imposed.

13. A sentence imposed within the statutorily prescribed limits will not be disturbed on appeal unless there appears to be an abuse of discretion on the part of the sentencing judge.

Clyde Starrett, McCook, for appellant.

Paul L. Douglas, Atty. Gen., Paul W. Snyder, Asst. Atty. Gen., Lincoln, for appellee.

Heard before PAUL W. WHITE, C. J., and SPENCER, BOSLAUGH, McCOWN, CLINTON, BRODKEY, and C. THOMAS WHITE, JJ.

BRODKEY, Justice.

In an information filed in the District Court for Red Willow County on March 1, 1976, Anthony Costello, the defendant and appellant herein, was charged with delivering a bank check with intent to defraud at a time when he knew he did not have sufficient funds in his bank account for the payment of the check. Trial before a jury commenced on July 26, 1976, and the defendant was found guilty as charged. The defendant was sentenced to a term of imprisonment for not less than 3 nor more than 5 years. Defendant has appealed to this court from his conviction and sentence, assigning as error numerous alleged violations of his constitutional rights, erroneous rulings on the admissibility of evidence at trial, failure to grant him a new trial on the ground of newly discovered evidence, and excessiveness of his sentence. We affirm the judgment and sentence of the District Court.

The relevant facts are as follows. On October 23, 1975, a complaint was filed in the county court of Red Willow County charging that the defendant had on October 7, 1975, delivered to Vogue Clothing Company a bank check for the payment of money in the amount of $79.68 upon the First Wisconsin National Bank of Oshkosh, Wisconsin; and that at the time of delivering the check the defendant knew he did not have sufficient funds in such bank for payment of the check. A warrant was issued for defendant's arrest on October 23, 1975.

Defendant was arrested in Florida on December 1, 1975, by sheriffs of Lee County, Florida. He was returned to Nebraska on February 17, 1976, by a Florida sheriff, and was promptly arraigned. A bond of $10,000, with permission to post 10 percent of that figure, was set and continued throughout the proceedings below. An information similar to the complaint filed in county court was filed in the District Court on March 1, 1976. The information, however, alleged that the defendant had delivered the insufficient fund check on October 23, 1975, rather than on October 7, 1975, as had been alleged in the complaint. This discrepancy was apparently due to the State using the date the complaint was filed rather than the date referred to in the complaint when it drafted the information. The State was permitted to amend the information to reflect the correct date of October 7, 1975, on the day before the trial commenced.

Prior to trial, defendant moved to dismiss the information on the grounds that he had been denied a speedy trial and that his removal from Florida to Nebraska constituted a denial of due process. He also moved to disqualify the trial judge on the ground of bias. These motions were overruled. After opening statements were made at the trial, defendant moved for mistrial on the grounds that the prosecutor had improperly argued law before the jury in his opening statement, and had referred to the defendant as a "paper hanger" and a "bad check artist." This motion was overruled.

The evidence at trial showed that the defendant had written a check to Vogue Clothing Company of McCook, Nebraska, on October 7, 1975. The check was in payment for clothing the defendant had purchased at that store, and was a personal check written on defendant's account at the First Wisconsin National Bank of Oshkosh, hereinafter referred to as the "Wisconsin bank." The check was processed through normal banking channels, and was returned to Vogue Clothing Company, by the Wisconsin Bank, unpaid. An employee and the owner of Vogue Clothing Company identified the defendant as the person who wrote the check and presented it to them. The check was identified and received in evidence.

Jerrold L. Kamp, operations officer for the Wisconsin bank, testified that he had returned the check because of insufficient funds. He further testified in regard to the status of the defendant's account at the Wisconsin bank from June 25, 1975, to October 15, 1975. The defendant's account became overdrawn in the amount of $148.58 as of August 7, 1975, for the following reasons: At the end of July 1975, the defendant had deposited three checks in a total amount of $2,950 in his Wisconsin bank account, all written upon another personal account the defendant had in a North Carolina bank. These three checks were unpaid by the North Carolina bank due to insufficient or uncollected funds. At the same time the defendant was purporting to deposit funds in the Wisconsin bank by drawing checks on his account in the North Carolina bank, he was purporting to deposit funds in the North Carolina bank by drawing a check on his account in the Wisconsin bank. Neither bank paid the checks written on the accounts, and the lack of deposits in the Wisconsin bank resulted in the overdrawn balance of $148.58 in defendant's account. Copies of the three checks referred to were admitted in evidence over defendant's objection.

Kamp also testified that the defendant had made no more deposits after the purported ones described above, but that the Wisconsin bank had to return, unpaid, a large number of checks which the defendant had written on his account from late July 1975, to November 1975. Copies of these checks were admitted into evidence over defendant's objection. At the close of the State's evidence, defendant's motion to dismiss the information on grounds similar to those he raises in his assignments of error in this appeal was overruled. The defendant rested without presenting a defense.

Approximately 2 months after trial, defendant moved for a new trial on the ground of newly discovered evidence. The new evidence upon which defendant relied was a laboratory report prepared for the State prior to trial by a documents examiner. The examiner had compared the signature on the check to Vogue Clothing Company with that on photocopied materials bearing the defendant's signature, and concluded that the defendant had written the check to Vogue Clothing Company. At the conclusion of the report, the examiner stated that it would be necessary to examine the originals of the documents he had used in his analysis before he appeared in court. The trial court overruled defendant's motion. The defendant was sentenced to a term of imprisonment for not less than 3 nor more than 5 years.

Defendant discusses 10 assignments of error in his brief. In the following discussion, we will consolidate those which are related.

Defendant first contends that he was denied a speedy trial in...