State v. Krutilek

• Decision Date: 01 July 1997
• Docket Number: No. A-96-804,A-96-804
• Parties: STATE of Nebraska, Appellee, v. Dennis KRUTILEK, Appellant.
• Court: Nebraska Court of Appeals

Page 797

567 N.W.2d 797

5 Neb.App. 853

STATE of Nebraska, Appellee, v. Dennis KRUTILEK, Appellant.

No. A-96-804.

Court of Appeals of Nebraska.

July 1, 1997.

Syllabus by the Court

1. Constitutional Law: Speedy Trial. The right to a speedy and public trial by an impartial jury is guaranteed by the 6th Amendment to the U.S. Constitution, as applied to the states through the 14th Amendment, and is also guaranteed by the Constitution of the State of Nebraska through Neb. Const. art. I, §§ 6 and 11.

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

3. Trial: Jurors. A juror is not incompetent merely because he is an acquaintance of one of the witnesses.

4. Trial: Jurors. Retention or rejection of a juror is a matter of discretion with the trial court.

5. Juror Qualifications: Motions for Mistrial. No mistrial needs to be declared, nor a juror excused, where the juror can decide the case fairly and impartially.

6. Juror Qualifications: Motions for Mistrial. A mistrial must be granted where a juror cannot be fair and impartial.

7. Juror Qualifications. Counsel has the right to interrogate prospective jurors so as to elicit desired information before accepting the venire.

8. Juror Qualifications. If counsel desires specific information on voir dire, then counsel must ask specific questions.

9. Juror Qualifications: Wavier. A party who fails to challenge a prospective juror for disqualification and does not use his peremptory challenges to remove said juror from the panel waives any objection to that juror's selection.

10. Rules of Evidence: Other Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he or she acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Neb. Rev. Stat. § 27-404(2)(Reissue 1995).

11. Rules of Evidence: Other Acts: Appeal and Error. In reviewing the actions 12. Motions for New Trial: Appeal and Error. The standard of review for the denial of a motion for new trial is whether there was an abuse of discretion by the trial court.

of a trial court in admitting evidence of other crimes under Neb. Rev. Stat. § 27-404(2)(Reissue 1995) to determine if there was unfair prejudice in the admission of evidence, an appellate court considers (1) whether the evidence was relevant, (2) whether the evidence had a proper purpose, (3) whether the probative value of the evidence outweighed its potential for unfair prejudice, and (4) whether the trial court, if requested, instructed the jury to consider the evidence only for the purpose for which it was admitted.

13. Words and Phrases. An abuse of discretion means that the reasons for a ruling are untenable and unfairly deprive a litigant of a substantial right and deny a just result in the matter submitted for disposition.

Karen Falcone Givens, for appellant.

Don Stenberg, Attorney General, and Kimberly A. Klein, Lincoln, for appellee.

MILLER-LERMAN, C.J., and IRWIN, and INBODY, JJ.

INBODY, Judge.

INTRODUCTION

Dennis Krutilek appeals his conviction and sentence for theft of property valued at over $1,500. On appeal, Krutilek argues that the trial court erred in denying his motion to dismiss a juror, in allowing evidence of Krutilek's prior automobile theft convictions, and in failing to grant his motion for a new trial. For the reasons set forth herein, we affirm.

STATEMENT OF FACTS

In the late evening hours of September 16 or the early morning hours of September 17, 1995, a 1987 silver Chevrolet Celebrity, vehicle identification number 1G1AW51R9H6237035, owned by Karen Goswick and primarily driven by her daughter, Julie Goswick (Goswick), was discovered to be missing.

On September 16, 1995, Goswick parked the car in a bank parking lot near the Eagle's Club located at Military and Main in Fremont, Nebraska, where she worked as a bartender. At some point later that evening, Goswick went to the parking lot to move the car closer to the building and discovered that it was no longer there. After asking her boyfriend and her parents if they had moved the car and learning that they had not, Goswick called the police and reported the car stolen.

Following a police investigation, on October 17, 1995, the stripped car was located in Dodge County on property owned by Andy Andrews. Among other things, the car was missing the engine, which was subsequently located at Autotech, an automobile repair business that buys automobile parts. The owner of Autotech, Robert Stiver, testified that on or about September 28, 1995, Krutilek brought the engine into the shop and sold it to him. Stiver stated that Krutilek told him that the engine was from a 1987 Oldsmobile that had been wrecked and that he was trying to recoup some money from it by selling pieces of the car.

Krutilek was arrested for the offense, and on February 27, 1996, an amended information was filed in the Dodge County District Court charging Krutilek with the theft of movable property valued at over $1,500. See Neb.Rev.Stat. § 28-511(1) (Reissue 1995). Theft of property valued at over $1,500 is a Class III felony. Neb.Rev.Stat. § 28-518(1) (Reissue 1995). The information also contained an allegation that Krutilek was a habitual criminal. See Neb.Rev.Stat. § 29-2221 (Reissue 1995). On April 24, the State filed a notice that, pursuant to Neb.Rev.Stat. § 27-404(2) (Reissue 1995), the State planned to offer as part of its case in chief Krutilek's two prior convictions of theft of an automobile.

Trial in this matter was held on May 6 and 7, 1996. Karen Goswick was called as the second witness for the prosecution. Following her testimony, an exchange with one juror, outside of the presence of the rest of the jury, proceeded as follows:

THE COURT: ... I understand you may be acquainted with the last witness' daughter; is that correct?

[Juror]: Yes. I am a member of the Eagle's Club and I know her from down there. I didn't know her last name.

THE COURT: Now, other than that you know her, is this a close personal relationship or just a casual acquaintance?

[Juror]: Casual. We visit down there.

THE COURT: Is there anything about that that would make you less than a fair and impartial juror?

[Juror]: I can't say because--

THE COURT: Well--

[Juror]: We visited long enough, kind of friends.

THE COURT: Have you ever visited about this case?

[Juror]: No.

THE COURT: Well, I guess the answer is kind of up to you. All cases are difficult, you know. And all relationships are difficult. The question is: Ultimately is your mindset that you feel that you could be a fair and impartial juror both to Mr. Krutilek and to the State?

[Juror]: I would hate to say that our friendship would sway me.

THE COURT: And do you feel that you would do your best to set that aside?

[Juror]: I'll do my best.

Upon further questioning by defense counsel, the juror stated that Goswick had never talked to him about her car being stolen, that he had known Goswick for approximately 1 year, and that he considered her to be a friend.

The defense moved to have the juror removed and also moved for a mistrial. The prosecutor commented that he did not feel there was sufficient evidence to dismiss the juror for cause, but that the State would prefer to have the juror dismissed rather than to have a mistrial declared. The trial court refused to remove the juror and overruled the motion for mistrial because the juror had indicated that he would set aside his friendship and attempt to decide the case based on the evidence.

The evidence, as elicited by the State, detailed the events as previously stated. Additionally, Goswick testified that she knew Krutilek through mutual friends and that she had never given him permission to take her car, had not asked him to take her car, had not given him keys to the car, and had not paid him to take her car. Evidence was also adduced that Goswick had received the car pursuant to a divorce decree entered on August 29, 1995, which date was prior to the car's being reported stolen.

The State also called Jennifer Andrews, an acquaintance of Krutilek's, to the stand. Andrews testified that during middle to late September 1995, Krutilek brought a silver or gray car to her mother's property in Dodge County and asked if he could rent half of a garage to store the car. In payment for the space, Krutilek gave Andrews a stereo, which she pawned. Further, Andrews testified that she saw Krutilek remove the engine from the car. Finally, evidence was adduced that Karen Goswick received a settlement from her insurance company of $2,825 for the car.

Following the close of the State's case, Krutilek testified in his own defense. Krutilek claimed that Goswick wanted him to hide the car from her ex-husband and that she gave Krutilek a key to the car. Krutilek also claimed that after he had hidden the car for Goswick, she told him to just keep the car. Further, Krutilek denied pulling the engine out of the car, but he did not deny selling the engine.

Krutilek's girl friend, Penny Adams, testified that in September 1995, Goswick gave Krutilek a key to her car because she wanted During cross-examination, the State introduced evidence of Krutilek's two prior convictions for automobile theft. Defense counsel timely objected to the admissibility of the evidence on the grounds that the unfair prejudice to Krutilek greatly outweighed any probative value that the evidence might have. A hearing was held outside the jury's presence; the court overruled the objection, and the jury was allowed to hear Krutilek testify that he had two prior convictions for automobile theft. On May 7, 1996, the jury found Krutilek guilty of the charged offense. On May 15, in a separate proceeding, the trial court found...