State v. Dyer

Decision Date18 March 1994
Docket NumberNo. S-93-316,S-93-316
Citation513 N.W.2d 316,245 Neb. 385
PartiesSTATE of Nebraska, Appellee, v. Marvin DYER, Appellant.
CourtNebraska Supreme Court

Syllabus by the Court

1. Motions to Suppress: Appeal and Error. A trial court's ruling on a motion to suppress is to be upheld on appeal unless its findings of fact are clearly erroneous. In determining whether a trial court's findings on a motion to suppress are clearly erroneous, an appellate court does not reweigh the evidence or resolve conflicts in the evidence, but, rather, recognizes the trial court as the finder of fact and takes into consideration that it observed the witnesses.

2. Criminal Law: Directed Verdict. In a criminal case, a court can direct a verdict only when there is a complete failure of evidence to establish an essential element of the crime charged or the evidence is so doubtful in character, lacking probative value, that a finding of guilt based on such evidence cannot be sustained.

3. Directed Verdict. A directed verdict is proper only where reasonable minds cannot differ and can draw but one conclusion from the evidence, where an issue should be decided as a matter of law.

4. Verdicts: Appeal and Error. A verdict in a criminal case must be sustained if the evidence, viewed and construed most favorably to the State, is sufficient to support that verdict. Moreover, on such a claim, an appellate court will not set aside a guilty verdict in a criminal case where such verdict is supported by relevant evidence.

5. Verdicts: Appeal and Error. Only where evidence lacks sufficient probative force as a matter of law may an appellate court set aside a guilty verdict as unsupported by evidence beyond a reasonable doubt.

6. Miranda Rights: Self-Incrimination. The prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of a defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.

7. Constitutional Law: Search and Seizure. Determinations as to whether a person has been seized, in the constitutional sense, are questions of fact.

8. Records: Appeal and Error. It is incumbent upon the party appealing to present a record which supports the errors assigned; absent such a record, as a general rule, the decision of the lower court is to be affirmed.

9. Speedy Trial: Indictments and Informations: Time. While time chargeable against the State under the speedy trial act commences with the filing of an initial information against a defendant, the time chargeable to the State ceases, or is tolled, during the interval between the State's dismissal of the initial information and refiling of an information charging the defendant with the same crime alleged in the previous, but dismissed, information.

10. Rules of Evidence: Hearsay: Time. For a statement to qualify as an excited utterance, the following criteria must be established: (1) There must have been a startling event, (2) the statement must relate to the event, and (3) the statement must have been made by the declarant while under the stress of the event. The key requirement is spontaneity, which requires a showing the statements were made without time for conscious reflection.

11. Trial: Witnesses. The right to cross-examine a prosecution witness regarding bias or motive is an important interest.

12. Trial: Witnesses. The right to cross-examine includes the opportunity to show that a witness is biased or that the testimony is exaggerated or unbelievable.

13. Criminal Law: Constitutional Law: Trial: Witnesses. The denial of a criminal defendant's right to confront his or her accusers, and implicitly the right to cross-examination, is a violation of the defendant's constitutional rights.

14. Appeal and Error. Ordinarily, to be considered by an appellate court, errors must be assigned and discussed in the brief of the one claiming that prejudicial error has occurred. However, an appellate court always reserves the right to note plain error which was not complained of at trial or on appeal but is plainly evident from the record, and which is of such a nature that to leave it uncorrected would result in damage to the integrity, reputation, or fairness of the judicial process.

15. Trial: Records: Appeal and Error. The record of the trial court, when properly certified to an appellate court, imports absolute verity; if the record is incorrect, any correction must be made in the district court.

Joy Shiffermiller, of Ruff, Nisley & Lindemeier, North Platte, for appellant.

Don Stenberg, Atty. Gen., and Delores Coe-Barbee, Lincoln, for appellee.

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

HASTINGS, Chief Justice.

Defendant, Marvin Dyer, was charged with two counts of third degree assault, one involving his wife, Linda, and the other involving police officer Jim Olson. He was convicted of both counts by a jury in the county court for Box Butte County. The convictions were affirmed on appeal to the district court for Box Butte County. On appeal, he asserts that the county court erred in (1) overruling his motion to suppress, because he was subject to custodial interrogation without having been advised of his Miranda rights; (2) overruling his motion for discharge, because he was denied his right to speedy trial contrary to statute and the federal and state Constitutions; (3) overruling his objection to the testimony of Dr. John J. Ruffing, Jr., on the basis of privilege, hearsay, and his constitutional right to confrontation of witnesses; (4) overruling his objections to the testimony of the ambulance drivers on the basis of privilege and the right of confrontation; (5) limiting his cross-examination of witnesses, police officers Gene Sheldon and Olson, by not allowing questions about the fact that a civil rights lawsuit is pending against them and the village of Hemingford, seeking monetary damages, in which Marvin is the plaintiff, which substantially bears on the officers' credibility as witnesses against Marvin; (6) overruling his motion to dismiss at the close of the State's case for failing to prove a prima facie case; (7) overruling his motion to dismiss at the end of all the evidence for lack of sufficient evidence to convict; and (8) entering a conviction against him, since there was insufficient evidence for the jury to convict.

A trial court's ruling on a motion to suppress is to be upheld on appeal unless its findings of fact are clearly erroneous. In determining whether a trial court's findings on a motion to suppress are clearly erroneous, an appellate court does not reweigh the evidence or resolve conflicts in the evidence, but, rather, recognizes the trial court as the finder of fact and takes into consideration that it observed the witnesses. State v. Ranson, 245 Neb. 71, 511 N.W.2d 97 (1994); State v. DeGroat, 244 Neb. 764, 508 N.W.2d 861 (1993).

In a criminal case, a court can direct a verdict only when there is a complete failure of evidence to establish an essential element of the crime charged or the evidence is so doubtful in character, lacking probative value, that a finding of guilt based on such evidence cannot be sustained. State v. Hirsch, 245 Neb. 31, 511 N.W.2d 69 (1994); State v. Wegener, 239 Neb. 946, 479 N.W.2d 783 (1992).

A directed verdict is proper only where reasonable minds cannot differ and can draw but one conclusion from the evidence, where an issue should be decided as a matter of law. State v. Hirsch, supra; Vredeveld v. Clark, 244 Neb. 46, 504 N.W.2d 292 (1993).

A verdict in a criminal case must be sustained if the evidence, viewed and construed most favorably to the State, is sufficient to support that verdict. Moreover, on such a claim, an appellate court will not set aside a guilty verdict in a criminal case where such verdict is supported by relevant evidence. Only where evidence lacks sufficient probative force as a matter of law may an appellate court set aside a guilty verdict as unsupported by evidence beyond a reasonable doubt. State v. Cook, 244 Neb. 751, 509 N.W.2d 200 (1993); State v. Thompson, 244 Neb. 375, 507 N.W.2d 253 (1993).

Shortly after midnight on August 7, 1991, Hemingford police officer Gene Sheldon was dispatched to the residence of Marvin and Linda Dyer on an emergency call. Linda was reportedly suffering from a pleurisy attack. Officer Sheldon arrived at approximately the same time as an ambulance. He followed the ambulance crew into the house and found Linda seated on the floor of the bathroom. Emergency medical technicians convinced her to leave the house to seek medical attention.

Officer Sheldon remained at the residence to try to determine if a crime had been committed. According to Officer Sheldon, Marvin said that he had hit his wife. Officer Sheldon remained at the house for approximately 2 hours. The officer stated that he was concerned about the children in the home and that he asked a volunteer firefighter to stay with them. He further stated that Marvin was not under arrest during this period of time. Linda returned to the house in the ambulance at about 1:45 a.m. Marvin went outside, at which time Officer Sheldon called another officer for assistance. Officer Sheldon asked Marvin if there was some place where he could spend the night, and Marvin replied that there was not. When Officer Jim Olson arrived, Officer Sheldon told Marvin that he was under arrest. Officer Olson testified that when he tried to place handcuffs on Marvin, Marvin struck Officer Olson's left temple with his right fist. Officer Olson stated that "we had kind of a wrestling match" and that they fell to the ground. Marvin was then handcuffed. Marvin testified that he told the officers that he could not walk. He also stated that he told the officers that his legs, shoulders, and back hurt while he was being dragged to the police car. Marvin suffered...

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  • State v. Dean
    • United States
    • Supreme Court of Nebraska
    • 18 Noviembre 1994
    ...an appellate court will uphold the trial court's findings of fact unless those findings are clearly erroneous. State v. Dyer, 245 Neb. 385, 513 N.W.2d 316 (1994); State v. Flores, 245 Neb. 179, 512 N.W.2d 128 (1994). The appellate court will not reweigh or resolve conflicts in the evidence.......
  • State v. Carter
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    • Supreme Court of Nebraska
    • 2 Diciembre 1994
    ...errors which are argued but not assigned. See State v. Brandon, 240 Neb. 232, 481 N.W.2d 207 (1992). See, also, State v. Dyer, 245 Neb. 385, 513 N.W.2d 316 (1994) (to be considered by an appellate court, an error must be assigned and discussed in the brief of one claiming that prejudicial e......
  • State v. Konfrst
    • United States
    • Supreme Court of Nebraska
    • 6 Diciembre 1996
    ...so doubtful in character, lacking probative value, that a finding of guilt based on such evidence cannot be sustained. State v. Dyer, 245 Neb. 385, 513 N.W.2d 316 (1994); State v. Hirsch, 245 Neb. 31, 511 N.W.2d 69 In State v. Hernandez, 242 Neb. 78, 493 N.W.2d 181 (1992), this court held t......
  • State v. Robinson
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    ...prosecution must further disclose all material exculpatory evidence, whether or not such information was requested. See State v. Dyer, 245 Neb. 385, 513 N.W.2d 316 (1994). In addition to giving notice that it planned to call Nelson, the State provided Robinson with a copy of a police report......
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