State v. Jacob

• Decision Date: 13 February 1998
• Docket Number: No. S-95-885,S-95-885
• Parties: STATE of Nebraska, Appellee, v. Steven JACOB, Appellant.
• Court: Nebraska Supreme Court

Page 117

574 N.W.2d 117

253 Neb. 950

STATE of Nebraska, Appellee, v. Steven JACOB, Appellant.

No. S-95-885.

Supreme Court of Nebraska.

Feb. 13, 1998.

Syllabus by the Court

1. Venue: Appeal and Error. A motion for change of venue is addressed to the discretion of the trial judge, whose ruling will not be disturbed absent an abuse thereof.

2. Motions for Mistrial: Appeal and Error. The decision whether to grant a motion for mistrial is within the discretion of the trial court and will be upheld on appeal absent a showing of abuse of discretion.

3. Criminal Law: Motions for New Trial: Appeal and Error. In a criminal case, a motion for new trial is addressed to the discretion of the trial court, and unless an abuse of discretion is shown, the trial court's determination will not be disturbed.

4. Motions for New Trial: Prosecuting Attorneys: Appeal and Error. An appellate court reviews a motion for new trial on the basis of prosecutorial misconduct for an abuse of discretion by the trial court.

5. Venue: Due Process: Proof. To warrant a change of venue due to pretrial publicity, mere exposure to news accounts of a crime does not presumptively deprive a criminal defendant of due process. Rather, to warrant a change of venue, a defendant must show the existence of pervasive misleading pretrial publicity.

6. Venue: Appeal and Error. A trial court abuses its discretion in denying a motion to change venue where a defendant establishes that local conditions and pretrial publicity make it impossible to secure a fair trial.

7. Venue: Juries: Proof. A number of factors must be evaluated in determining whether a defendant has met the burden of showing that pretrial publicity has made it impossible to secure a fair trial and impartial jury. Among them are the nature of the publicity, the degree to which the publicity has circulated throughout the community, the degree to which the publicity circulated in areas to which venue could be changed, the length of time between the dissemination of the publicity complained of and the date of trial, the care exercised and ease encountered in the selection of the jury, the number of challenges exercised during voir dire, the severity of the offenses charged, and the size of the area from which the venire was drawn.

8. Venue: Juries. Voir dire examination provides the best opportunity to determine whether venue should be changed.

9. Juror Qualifications. The law does not require a juror to be totally ignorant of the facts and issues involved, and it is sufficient if the juror can lay aside his or her impressions or opinions and render a verdict based upon the evidence presented in court.

10. Jurors: Presumptions: Proof. The competency of a juror is generally presumed, and the burden is on the challenging party to establish otherwise.

11. Jurors: Appeal and Error. The question of whether a prospective juror should be removed for cause is addressed to the discretion of the trial court and is subject to reversal only when clearly wrong.

12. Juries: Statutes. Because peremptory challenges are a creature of statute and are not required by the federal Constitution, a right to peremptory challenges is denied or impaired only if the defendant does not receive that which state law provides.

13. Juries: Due Process. The federal Constitution's requirement of due process is met as long as a state's statutorily mandated number of peremptory challenges is granted.

14. Criminal Law: Trial: Juries. Whether a jury is to be kept together before submission of the cause in a criminal trial is left to the discretion of the trial court.

15. Criminal Law: Trial: Juries: Appeal and Error. To warrant reversal, denial of a motion to sequester the jury before submission of the cause must be shown to have prejudiced the defendant.

16. Criminal Law: Jury Misconduct: Proof. Where jury misconduct in a criminal case involves juror behavior only, the burden 17. Rules of Evidence. In all proceedings where Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules, not judicial discretion, except in those instances under the rules when judicial discretion is a factor involved in the admissibility of evidence.

to establish prejudice rests on the party claiming the misconduct.

18. Rules of Evidence: Judges. Judicial discretion is a factor involved in admissibility of evidence under Neb. Evid. R. 402 and 403, Neb.Rev.Stat. §§ 27-402 and 27-403 (Reissue 1995).

19. Proof: Trial: Appeal and Error. All matters expressly or by necessary implication adjudicated by the Nebraska Supreme Court become the law of the case on remand for new trial and will not be considered again unless it is shown that the facts presented at the second trial are materially and substantially different from the facts presented at the first trial. The burden of showing a material and substantial difference in the facts is on the party asserting the difference.

20. Judges: Appeal and Error. The exercise of judicial discretion is implicit in determinations of relevancy, and the trial court's decision will not be reversed absent an abuse of discretion.

21. Trial: Appeal and Error. In order to preserve, as a ground of appeal, an opponent's misconduct during closing argument, the aggrieved party must have objected to improper remarks no later than at the conclusion of the argument.

22. Trial: Appeal and Error. An issue not presented to or decided by the trial court is not an appropriate issue for consideration on appeal.

23. Trial: Prosecuting Attorneys: Miranda Rights. A prosecutor's use of a defendant's postarrest, post-Miranda silence is fundamentally unfair because Miranda warnings imply not only that a person has the right to remain silent, but that his or her silence will not be used against him or her as evidence of guilt.

24. Witnesses: Testimony: Juries. The credibility of a witness and the weight to be given that witness' testimony are issues for the jury to resolve.

25. Convictions: Evidence: Appeal and Error. In reviewing a criminal conviction, it is not the province of an appellate court to resolve conflicts in the evidence, pass on the credibility of witnesses, determine the plausibility of explanations, or reweigh the evidence. Such matters are for the finder of fact, and the verdict of the jury must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support it.

26. Rules of Evidence: Hearsay. The residual hearsay exception is to be used rarely and only in exceptional circumstances.

27. Rules of Evidence: Hearsay: Appeal and Error. An appellate court will affirm the trial court's ruling on whether evidence is admissible under Neb. Evid. R. 804(2)(e), Neb.Rev.Stat. § 27-804(2)(e) (Reissue 1995), unless the trial court has abused its discretion.

28. Criminal Law: Juries. To aid in determining the innocence or guilt of a defendant, a jury may consider the defendant's voluntary flight immediately or soon after the occurrence of a crime.

29. 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.

30. New Trial: Appeal and Error. While any one of several errors may not, in and of itself, warrant a reversal, if all of the errors in the aggregate establish that a defendant did not receive a fair trial, a new trial must be granted.

31. Rules of Evidence: Appeal and Error. The admissibility of evidence is reviewed for an abuse of discretion where the Nebraska Rules of Evidence commit the evidentiary question at issue to the discretion of the trial court.

32. Trial: Expert Witnesses. The right of an indigent defendant to the appointment of an expert witness at the State's expense generally rests in the discretion of the trial court.

33. Effectiveness of Counsel: Records: Appeal and Error. Claims of ineffective assistance of counsel raised for the first time on direct appeal do not require dismissal ipso facto; the determining factor is whether the record is sufficient to adequately review the question.

34. Trial: Appeal and Error. When an issue has not been raised or ruled on at the trial level and the matter necessitates an evidentiary hearing, an appellate court will not address the matter on direct appeal.

Dennis R. Keefe, Lancaster County Public Defender, Lincoln, and Sean J. Brennan for appellant.

Steven Jacob, pro se.

Don Stenberg, Attorney General, and J. Kirk Brown, Lincoln, for appellee.

WHITE, C.J., and CAPORALE, WRIGHT, CONNOLLY, GERRARD, STEPHAN, and McCORMACK, JJ.

WRIGHT, Justice.

NATURE OF THE CASE

Following a retrial, Steven Jacob was found guilty of first degree murder in the death of Melody Hopper and second degree murder in the death of James Etherton. He was also found guilty of using a firearm to commit those crimes. Jacob was sentenced to two terms of life imprisonment and two terms of not less than 6 years 8 months nor more than 20 years' imprisonment, all sentences to be served consecutively. Jacob timely filed this appeal.

SCOPE OF REVIEW

A motion for change of venue is addressed to the discretion of the trial judge, whose ruling will not be disturbed absent an abuse thereof. State v. McHenry, 247 Neb. 167, 525 N.W.2d 620 (1995).

The decision whether to grant a motion for mistrial is within the discretion of the trial court and will be upheld on appeal absent a showing of abuse of discretion. State v. Anderson, 252 Neb. 675, 564 N.W.2d 581 (1997).

In a criminal case, a motion for new trial is addressed to the discretion of the trial court, and unless an abuse of discretion is shown, the trial court's determination will not be disturbed. State v. Kula, 252 Neb. 471,...