State v. Halsey

• Decision Date: 23 June 1989
• Docket Number: No. 88-859,88-859
• Citation: 232 Neb. 658,441 N.W.2d 877
• Parties: STATE of Nebraska, Appellee and Cross-Appellant, v. Ben M. HALSEY, Appellant and Cross-Appellee.
• Court: Nebraska Supreme Court

Page 877

441 N.W.2d 877

232 Neb. 658

STATE of Nebraska, Appellee and Cross-Appellant, v. Ben M. HALSEY, Appellant and Cross-Appellee.

No. 88-859.

Supreme Court of Nebraska.

June 23, 1989.

Syllabus by the Court

1. Criminal Law: States: Final Orders: Time: Appeal and Error. The right of the State to appeal from a final order in a criminal case is limited by the provisions of Neb.Rev.Stat. § 29-2315.01 (Reissue 1988), which requires that an application for leave to docket an appeal be presented to the trial court within 20 days after the final order has been entered, and to the Supreme Court within 30 days from the date of the final order.

2. Criminal Law: States: Final Orders: Jurisdiction. A failure to comply with the statutory requirements which are jurisdictional prevents any review by the State of a final order of the trial court in a criminal case.

3. Criminal Law: States: Final Orders: Appeal and Error. The State cannot obtain a review of a trial court's final order in a criminal case by asserting a cross-appeal.

4. Pretrial Procedure: Time: Speedy Trial. Any delay caused by the defendant's act or conduct, namely, those pretrial situations or matters described or characterized in Neb.Rev.Stat. § 29-1207(4)(a) (Reissue 1985), is automatically excluded in computing the time when the defendant's trial must commence pursuant to the Nebraska speedy trial act.

5. Pretrial Procedure: Time: Speedy Trial. Any period of delay resulting from a defendant's act or conduct specifically mentioned in reference to the pretrial matters or situations described or characterized in Neb.Rev.Stat. § 29-1207(4)(a) (Reissue 1985) is computed without consideration whether such delay was reasonably necessary.

6. Trial: Juries: Evidence. It is within the discretion of the trial court whether the jury should be allowed to rehear a part of the evidence.

7. Lesser-Included Offenses: Words and Phrases. To be a lesser-included offense, the elements of the lesser offense must be such that it is impossible to commit the greater without at the same time having committed the lesser.

8. Indictments and Informations: Lesser-Included Offenses. Although a defendant cannot be convicted of both a principal offense and a lesser-included offense at the same time, there is no prohibition against charging both in one information.

9. Motions for Mistrial: Constitutional Law: Double Jeopardy. So long as the trial court has not abused its discretion in determining that a jury is deadlocked, a declaration of mistrial resulting from a jury's inability to reach a verdict does not bar reprosecution under the double jeopardy clause of the fifth amendment.

10. Motions for Mistrial: Appeal and Error. The decision as to whether to grant a motion for a mistrial is within the discretion of the trial court, and a refusal to grant a mistrial will be upheld on appeal in the absence of a showing of an abuse of discretion.

11. Pretrial Procedure: Evidence. A motion in limine is a procedural step to prevent prejudicial evidence from reaching the jury. It is not the office of a motion in limine to obtain a final ruling upon the ultimate admissibility of evidence.

James L. Birkel, of Egr and Birkel, David City, for appellant.

Robert M. Spire, Atty. Gen., and Mark D. Starr, Lincoln, for appellee.

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

BOSLAUGH, Justice.

Sometime during the early morning hours of July 4, 1987, Ramona S. Vyhlidal was brutally beaten about the head and face and was choked while asleep in her trailer home in Bellwood, Nebraska. That morning, the victim was discovered lying on the floor of the trailer by her then 11-year-old daughter, Wendy. When Wendy asked what had happened, the victim said, "Ben was here," and told Wendy to call an ambulance.

Wendy ran to Lawrence Bazer's trailer home, which was nearby, and told the Bazers to call an ambulance. Bazer then went to the victim's trailer home, where the victim told Bazer, "Ben did this to me."

The defendant, Ben M. Halsey, was arrested and charged with attempted first degree murder and first degree assault. Trial to a jury commenced on April 25, 1988. The case was submitted to the jury at 2:30 p.m. on April 28, 1988. Five verdict forms were given to the jury, which permitted the jury to find the defendant guilty of assault in the first degree, not guilty of assault in the first degree, guilty of attempted murder in the first degree, guilty of attempted murder in the second degree, and not guilty of attempted murder in the first or second degree. The jury was not given a verdict form which would have permitted the jury to find the defendant not guilty of attempted murder in the first degree but guilty of attempted murder in the second degree.

At 3:45 p.m. on April 28, 1988, the jury requested that the jury be allowed to hear the tape recording of the testimony of some of the witnesses. The State objected to this request, and the trial court advised the jury that the tape recording of the evidence could not be played back to the jury. The jury was instructed to return to the jury room and continue with its deliberations.

At 5:10 p.m. on April 29, 1988, the foreman of the jury reported that the jury was divided 10 to 2 and that he believed further deliberations would not result in any change. The trial court instructed the jury to recess for dinner and then reconvene and reread the instructions.

At a hearing on June 8, 1988, the bailiff testified that on the evening of April 29, 1988, after the jury had returned from dinner, the foreman asked her to tell the trial court that the jury was unanimous on one count. The bailiff gave the message to the trial court, which then stated, "[T]hey needed to complete the other count." The bailiff then gave that message to the foreman of the jury. At the same hearing, the foreman of the jury testified that the jury was unanimous in finding the defendant not guilty of first degree attempted murder. The jury, however, was not unanimous on attempted murder in the second degree or on first degree assault.

At 8:45 p.m. on April 29, 1988, the jury was again called back to the courtroom. At that time, the foreman reported that the jury was divided 9 to 3, and he did not believe there was a reasonable possibility of the jury's reaching a unanimous verdict on any of the "verdicts" that had been submitted to the jury. The trial court then declared a mistrial and discharged the jury.

At the conclusion of the hearing on June 8, 1988, the trial court found that the jury had reached a unanimous verdict of not guilty on the charge of attempted first degree murder but that there had been no jeopardy as to attempted murder in the second degree.

The State filed an amended information amending the first count to charge attempted murder in the second degree. The defendant filed a plea in bar to the amended information, which was sustained as to the first count on July 7, 1988, and the charge of attempted murder in the second degree was dismissed.

The second trial, with a jury waived, commenced on July 27, 1988, and resulted in a finding on September 21, 1988, of guilty of first degree assault. On October 13, 1988, the defendant was sentenced to imprisonment for 6 to 20 years with credit for 13 months. The defendant has appealed, and the State has attempted to cross-appeal from the dismissal of the attempted murder charges.

The right of the State to appeal from a final order in a criminal case is limited by the provisions of Neb.Rev.Stat. § 29-2315.01 (Reissue 1988), which requires that an application for leave to docket an appeal be presented to the trial court within 20 days after the final order has been entered, and to this court within 30 days from the date of the final order. See, State v. Taylor, 179 Neb. 42, 136 N.W.2d 179 (1965); State v. Satterfield, 179 Neb. 451, 138 N.W.2d 656 (1965); State v. Halphrey, 14 Neb. 578, 16 N.W. 823 (1883). A failure to comply with these requirements which are jurisdictional prevents any review by the State of a final order of the trial court in a criminal case. State v. Gillett & Gaston, 199 Neb. 829, 261 N.W.2d 763 (1978). The State cannot obtain a review of a trial court's final order in a criminal case by asserting a cross-appeal. See State v. Martinez, 198 Neb. 347, 252 N.W.2d 630 (1977). Since the State failed to comply with § 29-2315.01 in this case, the cross-appeal is dismissed.

The defendant contends that the trial court erred in (1) overruling his motion to dismiss for failure to bring him to trial within 6 months, (2) failing to sustain his plea in bar to the assault charge, (3) refusing to comply with the jury's request to play back the recording of a part of the evidence, (4) declaring a mistrial when the jury failed to agree, and (5) failing to grant a mistrial on the ground the defendant's waiver of a jury trial had been improvident.

With respect to the first assignment of error, the defendant contends that delay resulting from motions of the defendant relating to the attempted murder count should be disregarded in computing the time within which the defendant was brought to trial.

Neb.Rev.Stat. § 29-1207(4)(a) (Reissue 1985) provides:

The period of delay resulting from other proceedings concerning the defendant, including but not limited to an examination and hearing on competency and the period during which he is incompetent to stand trial; the time from filing until final disposition of pretrial motions of the defendant, including motions to suppress evidence, motions to quash the indictment or information, demurrers and pleas in abatement and motions for a change of venue; and the time consumed in the trial of other charges against the defendant

shall be excluded in computing the time for trial.

Under the statute, the time spent in resolving pretrial matters as specified in the statute is automatically excluded. State v. Lafler, 225 Neb. 362, 405...