State v. Grant

• Decision Date: 05 February 1993
• Docket Number: No. S-91-708,S-91-708
• Citation: State v. Grant, 495 N.W.2d 253, 242 Neb. 364 (Neb. 1993)
• Parties: STATE of Nebraska, Appellee, v. Angela J. GRANT, Appellant.
• Court: Nebraska Supreme Court

Page 253

495 N.W.2d 253

242 Neb. 364

STATE of Nebraska, Appellee, v. Angela J. GRANT, Appellant.

No. S-91-708.

Supreme Court of Nebraska.

Feb. 5, 1993.

Syllabus by the Court

1. Jury Instructions: Records: Appeal and Error. Although Neb.Rev.Stat. § 25-1111 (Reissue 1989) directs that a requested instruction be written, when the record demonstrates that a trial court understood the nature of the orally requested jury instruction, an appellate court may review the trial court's refusal to give the orally requested instruction.

2. Jury Instructions: Lesser-Included Offenses. Whether a court must instruct a jury on a lesser-included offense depends on answers to the questions: (1) Is the offense for which an instruction is requested actually a lesser-included offense of the crime that has been charged against a defendant? (2) Is an instruction on a lesser-included offense justified under the evidence at trial?

3. Jury Instructions: Lesser-Included Offenses. If a court determines that an offense described in a requested instruction is a lesser offense included within a greater offense, then, under the two-step analysis and the cognate-evidence approach or method concerning a determination of greater and lesser-included offenses, a court must determine whether the evidence justifies an instruction on the lesser-included offense.

4. Jury Instructions: Lesser-Included Offenses. After a court has determined that the requested instruction is based on a lesser-included offense, the court must examine the evidence, generated by the State or the defendant, to determine whether the jury could reasonably acquit the defendant of the greater offense, but reasonably find the defendant guilty of the lesser-included offense.

5. Jury Instructions: Lesser-Included Offenses. Even when an alibi or insanity defense is used or the defendant presents no evidence to rebut the greater offense charged, a lesser-included offense instruction is appropriate if the evidence adduced controverts an elevating element of the greater offense.

6. Jury Instructions: Proof: Appeal and Error. To establish reversible error from a court's refusal to give a requested instruction, an appellant has the burden to show that (1) the tendered instruction is a correct statement of the law, (2) the tendered instruction is warranted by the evidence, and (3) the appellant was prejudiced by the court's refusal to give the tendered instruction.

7. Jury Instructions: Lesser-Included Offenses: Appeal and Error. When the evidence fails entirely to show a crime of lesser degree than that charged against a defendant, refusal to give a lesser-included offense instruction is not prejudicial error.

Thomas M. Kenney, Douglas County Public Defender, and Janine F. Ucchino, for appellant.

Don Stenberg, Atty. Gen., and Joseph P. Loudon, for appellee.

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

SHANAHAN, Justice.

Angela J. Grant appeals from her conviction on the charge of knowingly and intentionally delivering cocaine as an illegal controlled substance, a crime defined by Neb.Rev.Stat. § 28-416(1) (Reissue 1989): "Except as authorized by the Uniform Controlled Substances Act, it shall be unlawful for any person knowingly or intentionally: (a) To manufacture, distribute, deliver, dispense, or possess with intent to manufacture, distribute, deliver, or dispense a controlled substance."

In her solitary assignment of error, Grant claims that the district court for Douglas County, as orally requested by Grant during the instruction conference at trial, should have instructed the jury on the offense of illegal possession of cocaine under § 28-416(3) as a lesser-included offense in the delivery charge against Grant. Section 28-416(3) states:

A person knowingly or intentionally possessing a controlled substance, except marijuana, unless such substance was obtained directly or pursuant to a valid prescription or order from a practitioner while acting in the course of his or her professional practice, or except as otherwise authorized by the act, shall be guilty of a Class IV felony.

In response, the State asserts that Grant's assignment of error concerning the rejected instruction on a lesser-included offense cannot be considered on appeal because Grant's request was oral and, therefore, unwritten, notwithstanding the statutory direction concerning tendered instructions in both civil and criminal trials: "All instructions asked shall be in writing." Neb.Rev.Stat. § 25-1111 (Reissue 1989). See, also, Neb.Ct.R. of Prac. 4A(2) (rev.1992) (if error is assigned in the refusal to give a tendered instruction, an appellant must specify in a praecipe that the transcript shall include the rejected instruction).

THE COCAINE SALE

On November 20, 1990, the narcotics unit of the Omaha Police Division was aware that illegal controlled substances were being distributed in a section of the city where the residence of Annette Roddy was located and characterized Roddy's residence as "a known narcotics trafficking house." Jimmy Edwards, a "cooperating source" familiar with the area of illegal drug distribution near Roddy's house, worked with police by introducing undercover officers to individuals suspected of selling illegal controlled substances. Around 11 a.m. on November 20, in a monitored telephone call from police headquarters to Roddy, Edwards asked for a "250 of crack" cocaine, that is, a quantity of crack sold for $250. Roddy responded that she did not have any crack, but would "see what I can do for you." Angela Grant, who was staying in Roddy's house, was within earshot of Roddy, who, after hanging up the phone, told Grant that Edwards "wanted to get some crack." After Grant's insistent urging, " 'Come on; let's go,' " Grant and Roddy departed for a parking lot which was the site indicated by Edwards for the possible purchase of crack.

At the same time, Edwards and James Haiar, an undercover narcotics officer, left the police station in Edwards' pickup truck, driven by Haiar. Other officers in the narcotics unit set up surveillance of the parking lot where Edwards and Haiar would meet Roddy and Grant. An unmarked police van was stationed near the parking lot so that police could photograph events at the site. Other narcotics officers were located nearby to record any conversation electronically transmitted from Haiar, who had been wired with a microphone on his person.

Edwards and Haiar arrived around 12:30 p.m. and met Roddy and Grant in the parking lot. After Roddy said that she and Grant did not bring any cocaine, the two women offered to flag down passing motorists to find out whether any of the passersby had any crack for sale. Both Roddy and Grant, at times separately and at other times jointly, flagged down passing traffic until Roddy recognized a man known as D.J., who pulled his car into the parking lot and stopped next to Edwards' pickup.

Grant and Roddy got into D.J.'s car; Grant sat in the front on the passenger's side, while Roddy sat in the left rear seat. Roddy told D.J. that the men in the pickup wanted "250 worth of crack." D.J. handed a quantity of crack to Roddy, who got out of the car and, closely followed by Grant, went to the pickup, which the women entered. Haiar was seated near the left door, behind the pickup's steering wheel; Edwards was next to Haiar; and Grant was sitting between Edwards and Roddy, who was next to the window on the right side. Roddy was still holding the cocaine in one of her hands when Haiar and Roddy began haggling about the quality of the cocaine and the price being asked. Referring to the cocaine being held by Roddy, Grant said: "Put it in my hands." Roddy handed the cocaine to Grant, who remarked that the crack was "good stuff" and then wrapped the several pieces of cocaine in plastic or cellophane given to her by Edwards. "Casey's" was printed on the wrapper. Haiar gave $250 in cash to Roddy, who got out of the pickup to deliver the money to D.J. in his car, still parked next to the pickup. Haiar remained in the pickup with Grant, who handed Haiar the wrapped cocaine. Shortly thereafter, Grant got out of the pickup and went to D.J.'s car. Grant and Roddy departed with D.J., who drove the women to Roddy's house. On arrival at the house, D.J. gave Roddy $25 for "helping" in the sale to Haiar, but Roddy did not give Grant any of the $25.

Haiar returned to police headquarters and turned over the wrapped pieces of cocaine to the criminal laboratory section of the Omaha Police Division. Eventually, the several pieces contained in the wrapping were analytically determined to be cocaine.

On December 11, 1990, police, pursuant to warrants, arrested Grant and Roddy. Both were charged with delivering the cocaine obtained from D.J. in the parking lot. However, before Grant's trial, Roddy pled guilty to the charge against her, and she was awaiting sentence when Grant came to trial on the charge of delivering cocaine.

GRANT'S TRIAL

In the State's case against Grant, 49 photographs taken by officers during surveillance of Edwards' pickup and D.J.'s car were introduced, depicting Grant and Roddy at the scene. Also, the tape-recorded conversation involving Grant, Roddy, Edwards, and Haiar in the pickup was played for the jury, who heard various remarks by Grant and Roddy regarding their involvement in the cocaine sale to Haiar.

Also, the several pieces of crack in the Casey's cellophane or plastic wrapping (exhibit 50) were identified by Roddy as the cocaine wrapped in "a little cellophane envelope" by Grant inside Edwards' pickup before Roddy left to deliver the $250 to D.J. Additionally, Haiar identified exhibit 50 as the crack and its wrapping which Grant handed to Haiar in the pickup. According to Haiar, Grant never received "any piece or rock" out of the cocaine which Roddy brought from D.J.'s car, the same cocaine that Roddy handed to Grant, who wrapped and passed the cocaine to...