State v. Fletcher
| Decision Date | 27 December 1985 |
| Docket Number | No. 85-282,85-282 |
| Citation | 221 Neb. 562,378 N.W.2d 859 |
| Parties | STATE of Nebraska, Appellee, v. Jack D. FLETCHER, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Criminal Law: Jury Instructions: Witnesses: Case Disapproved. The instruction previously authorized by State v. Goff, 174 Neb. 548, 118 N.W.2d 625 (1962), requiring a jury to consider an undercover agent's testimony with care greater than that given a disinterested witness' testimony, is disapproved and has been supplanted by NJI 1.41 concerning a witness' credibility and weight to be given a witness' testimony.
2. Trial: Appeal and Error. Only issues properly presented to and passed upon by the district court may be raised on appeal to the Supreme Court. In the absence of plain error, where an issue is raised for the first time in the Supreme Court, it will be disregarded inasmuch as the district court cannot commit error in resolving an issue never presented and submitted for disposition.
3. Criminal Law: Indictments and Informations. The general rule which is followed by the Supreme Court is that where the several offenses charged in a multicount indictment or information involve factual variations, such as different times, dates, places, property, or victims, the finding on one count will not ordinarily be held inconsistent with that on any other count.
Richard Scott, Lincoln, for appellant.
Robert M. Spire, Atty. Gen., and Lynne R. Fritz, Lincoln, for appellee.
Jack D. Fletcher appeals his conviction and sentence in the district court for Red Willow County regarding delivery of an exceptionally hazardous drug (amobarbital). We affirm.
Fletcher, age 65 and a resident of Indianola, was self-employed in the business of repairing and cleaning septic tanks. For various health problems, Fletcher received a variety of prescription drugs, including Lilly's F14, a yellow capsule containing ephedrine and Amytal. A two-count information charged Fletcher with delivery of an exceptionally hazardous drug (amobarbital) to Olive Trobaugh on December 11, 1983, and possession of that drug on December 30, 1983, with intent to deliver such controlled substance, all contrary to Neb.Rev.Stat. § 28-416(2)(a) (Cum.Supp.1984).
On December 4, 1983, Olive Trobaugh, incarcerated in the Red Willow County jail and awaiting arraignment on charges of auto theft and assault on a police officer, requested a meeting with the Red Willow County attorney and police. During that conversation, Trobaugh stated she knew some local people trafficking in drugs and offered to serve as an undercover agent in exchange for reduction or dismissal of charges pending against her. Although the county attorney made no promise regarding the charges, Trobaugh was released from jail and contacted Fletcher to purchase some "yellows" from him.
Before going to Fletcher's house on December 11, Trobaugh met with law enforcement officers, who placed a microphone on Trobaugh so that conversations with her might be electronically monitored. Trobaugh testified that during her visit at Fletcher's residence, she had a conversation with Fletcher, who asked "if I had the money, and I asked him if he had the stuff." Although the initially agreed transaction was payment of $120 for 130 "yellows," Trobaugh had only $100 and asked Fletcher to give her a "break because it was around the holidays." Fletcher responded that he would "double them ["yellows"] beings it's Christmas," accepted $100 from Trobaugh, and handed her 260 yellow capsules in a brown paper sack. Later, Trobaugh delivered the paper sack and the yellow capsules to the police. The State did not offer the tape recording of the conversation between Trobaugh and Fletcher. No police officer testified during Fletcher's trial.
The State called pharmacists and a physician to establish the ingredients or composition of the yellow capsules which Trobaugh had obtained from Fletcher. The "yellows" were identified as capsules of Lilly's F14 containing 25 milligrams of ephedrine sulfate and 50 milligrams of Amytal--a trade name for amobarbital. Ephedrine is not a narcotic but is a stimulant used to dilate bronchial tubes to make the exchange of air easier in one suffering from an "acute flareup of asthma." To alleviate fear of an asthmatic unable to breathe during a bronchial spasm and somewhat counteract anxiety as an effect of the ephedrine, Amytal, a "hypnotic," was used as a sedative. It was virtually impossible for a layman to separate the ephedrine from the Amytal (amobarbital) found in Lilly's F14. Amobarbital is a Schedule II controlled substance and an exceptionally hazardous drug, according to Nebraska statutes. See Neb.Rev.Stat. §§ 28-405(d)(1) [Schedule II] and 28-401(35)(d) (Cum.Supp.1984).
Fletcher requested the following instruction: "In weighing the testimony of persons employed to find evidence against the accused, you should exercise greater care than in the case of a witness who is wholly disinterested." The court rejected Fletcher's requested instruction and, instead, instructed the jury as follows:
You are the sole judges of the credibility of the witnesses and the weight to be given to their testimony. In determining the weight which the testimony of the witnesses is entitled to receive, you should consider:
1. Their interest in the result of the suit, if any;
2. Their conduct and demeanor while testifying;
3. Their apparent fairness or bias or relationship to the parties, if any such appears;
4. Their opportunity for seeing or knowing the things about which they have testified;
5. Their ability to remember and relate accurately the occurrences referred to in their evidence;
6. The extent to which they are corroborated, if at all, by circumstances or the testimony of credible witnesses;
7. The reasonableness or unreasonableness of their statements;
8. All other evidence, facts, and circumstances proved tending to corroborate or contradict such witnesses.
Fletcher was acquitted of criminally possessing amobarbital on December 30 but was convicted of criminally delivering that drug to Trobaugh on December 11 in violation of § 28-416(1)(a) and (2)(a). After giving Fletcher credit for 102 days--the aggregate of the time confined in the county jail awaiting trial and custodial time during evaluation by the Department of Correctional Services--and after a presentence investigation and report, the court sentenced Fletcher to imprisonment for a term of 1 year in the Nebraska Penal and Correctional Complex.
Fletcher contends the district court committed five errors, namely: (1) Refusal of Fletcher's tendered instruction regarding Trobaugh's credibility and weight to be given to her testimony as an informant; (2) Admitting into evidence the tape recording of the conversation between Trobaugh and Fletcher, evidence obtained in violation of Fletcher's constitutional guarantee against an unreasonable search; (3) Insufficient evidence to sustain the conviction; (4) Inconsistent verdicts; and (5) An excessive sentence.
In claiming that his tendered instruction should have been given regarding credibility of an undercover agent and the weight to be accorded an undercover agent's testimony, Fletcher relies on a statement found in State v. Goff, 174 Neb 548, 559, 118 N.W.2d 625, 632 (1962): " 'Where informers, detectives, or other persons employed to hunt up testimony against the accused are called to testify against him, he is entitled to an instruction to the jury that in weighing their testimony greater care should be exercised than in the case of witnesses who are wholly disinterested.' " (Citing Garcia v. State, 159 Neb. 571, 68 N.W.2d 151 (1955).) In Fletcher's case, however, the court gave an instruction in the language of NJI 1.41 as far as applicable to Trobaugh's credibility and the weight to be given by the jury to her testimony. We note that State v. Goff, supra, antedates adoption of Nebraska Jury Instructions [NJI] (West 1969). With the background about Trobaugh's involvement in obtaining evidence against Fletcher, the instruction given by the court (NJI 1.41) adequately informed the jury concerning factors affecting Trobaugh's credibility and weight to be given to her testimony as an undercover agent. NJI 1.41 has supplanted the instruction previously authorized in State v. Goff, supra, which is disapproved. Under the circumstances there was no error by the district court in refusing Fletcher's requested instruction.
Next, Fletcher complains that the tape recording of...
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...be guilty of a Class IV felony." § 28-416(3). Indeed, we previously resolved this issue against Thompson. The cases State v. Fletcher, 221 Neb. 562, 378 N.W.2d 859 (1985); State v. Jennings, 195 Neb. 434, 238 N.W.2d 477 (1976); State v. Brown, 195 Neb. 321, 237 N.W.2d 861 (1976); and State ......
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