State v. Kula, S-96-301
| Decision Date | 09 May 1997 |
| Docket Number | No. S-96-301,S-96-301 |
| Citation | 562 N.W.2d 717,252 Neb. 471 |
| Court | Nebraska Supreme Court |
| Parties | STATE of Nebraska, Appellee, v. Edwin KULA, also known as Ed Kula, Appellant. |
Syllabus by the Court
1. Convictions: Appeal and Error. Regardless of whether the evidence is direct, circumstantial, or a combination thereof, and regardless of whether the issue is labeled as
a failure to direct a verdict, insufficiency of the evidence, or failure to prove a prima facie case, the standard is the same: In reviewing a criminal conviction, an appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence. Such matters are for the finder of fact, and a conviction will be affirmed, in the absence of prejudicial error, if the properly admitted evidence, viewed and construed most favorably to the State, is sufficient to support the conviction.
2. Motions for Continuance: Appeal and Error. An appellate court reviews a ruling on a motion for continuance for an abuse of discretion by the trial court.
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. Circumstantial Evidence. Circumstantial evidence is not inherently less probative than direct evidence.
5. Convictions: Juries: Circumstantial Evidence. In finding a defendant guilty beyond a reasonable doubt, a jury may rely upon circumstantial evidence and the inferences that may be drawn therefrom.
6. Statutes: Rules of the Supreme Court: Appeal and Error. While Neb.Rev.Stat. § 25-1919 (Reissue 1995) and Neb. Ct. R. of Prac. 9D(1)d (rev.1996) provide that consideration of the cause on appeal is limited to errors assigned and discussed by the parties, that same statute and rule permit the Supreme Court to note any plain error not assigned.
7. Appeal and Error: Words and Phrases. Plain error is error plainly evident from the record and of such a nature that to leave it uncorrected would result in damage to the integrity, reputation, or fairness of the judicial process.
8. Constitutional Law: Criminal Law: Pretrial Procedure. While Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995), impose a constitutional mandate for disclosure in criminal cases, a statutory design for discovery such as Neb.Rev.Stat. § 29-1912 (Reissue 1995) can exact more than the constitutional minimum, so that courts must focus on information potentially useful to the defense.
9. Pretrial Procedure: Prosecuting Attorneys: Evidence: Words and Phrases. Under Neb.Rev.Stat. § 29-1912 (Reissue 1995), whether a prosecutor's failure to disclose evidence results in prejudice depends on whether the information sought is material to the preparation of the defense, meaning that there is a strong indication that such information will play an important role in uncovering admissible evidence, aiding preparation of witnesses, corroborating testimony, or assisting impeachment or rebuttal.
10. Pretrial Procedure. The discovery process is not a game of "hide the ball," and discovery orders must be completed in a timely manner.
Mark M. Sipple, of Sipple, Hansen, Emerson & Schumacher, and Adam J. Sipple, Columbus, for appellant.
Don Stenberg, Attorney General, and Kimberly A. Klein, Lincoln, for appellee.
Edwin Kula was convicted by a jury of the first degree murder of Jerry Carlson and the use of a weapon to commit a felony. The district court for Platte County sentenced Kula to life in prison for murder and to a mandatory consecutive term of 6 2/3 to 20 years' imprisonment for the use of a weapon to commit a felony.
Because of the State's repeated prejudicial discovery violations, we determine that the district court erred in failing to grant Kula's motion for a continuance prior to opening statements and his motion for new trial following the verdict. As a result, we reverse, and remand for a new trial.
On the evening of April 15, 1994, Carlson and his friend Frank Cuba worked on a golf cart at Cuba's auto body repair shop in Silver Creek, Nebraska. Carlson left the shop in his Chevrolet pickup between 11:30 and 11:45 p.m. and turned west on Highway 30 toward Clarks, Nebraska.
At approximately 1:15 or 1:30 a.m. on April 16, Tom Branting stopped at the residence of John Wirrick, village marshal for Clarks, and told Wirrick that there was a vehicle, possibly belonging to Carlson, about 2 miles east of Clarks in a ditch adjacent to Highway 30. Wirrick then contacted the Merrick County Sheriff's Department and met Chief Deputy Richard Miller at the scene.
The officers discovered a pickup with the headlights on and the engine running approximately 20 to 50 yards south of Highway 30, resting on a tree in a ditch containing a foot of water. The officers found Carlson dead in the pickup with a wound in his back just underneath the left shoulder blade. The rear driver's-side window on the extended portion of the cab was broken out by a single bullet from a highpowered rifle that pierced through the driver's seat, entered Carlson's back, and penetrated his chest.
Originally, Branting and Charles Johnson were arrested for, and charged with, second degree murder in the death of Carlson. The cases were subsequently dismissed.
On the evening of April 15, Kula and his 15-year-old son, Travis, visited two bars in Silver Creek. They ate at the Kozy Bar and then went to Li'l Joe's for approximately 3 or 4 hours. Travis did not know what time he and Kula left Li'l Joe's in the Kulas' Dodge minivan, but it "seemed pretty late."
At Kula's direction, Travis drove south out of Silver Creek and then turned around and came back through town. They came to an intersection where they saw two men walking. When Kula saw the two men, Travis noticed that Kula's face changed expressions like "he wasn't real pleased with something." Kula referred to one of the men as being Carlson (the other being Cuba) and then told Travis to turn right. As the minivan approached the two men at approximately 10 to 15 miles per hour, Kula grabbed the steering wheel and turned the minivan within inches of hitting them. Travis asked Kula what was going on and received no reply.
Travis then drove to the Kula farmhouse 3 miles east and one-half mile north of Silver Creek. The trip from Silver Creek to the Kula home takes approximately 10 minutes. When they arrived home, Kula indicated to Travis that he was going back out and said that he did not want Travis to be a witness and have to testify in court and that he (Kula) was going to take care of business. Travis went straight to his room.
Kula's wife, Rose, heard Kula and Travis arrive home between 11:20 and 11:30 p.m. She did not see Kula, but heard someone go back outside. Rose then heard the minivan "[take] off a little fast," looked out the window, and saw the minivan drive over to the garage. She woke Travis and asked him what was going on. Travis told her that she did not want to know, and she responded that she did. Travis eventually told Rose that Kula was upset with Carlson.
From Travis' window, Rose watched the minivan drive to the end of the farm lane and sit for approximately 5 to 7 minutes. She then left Travis' room and went to the garage to see if any guns were missing. She noted that a .22-caliber pistol was missing that she had seen in the garage earlier that afternoon and that a .22-caliber rifle was missing that Kula had used to shoot birds earlier that day. When Rose saw that the guns were gone, she became concerned, so she and the children went to a Columbus hotel for the night. Rose stated that if Kula was in a bad mood, she "didn't want to be home when he got home."
On April 15 at approximately 7 p.m., Branting and Johnson went together to the Kozy Bar in Silver Creek. According to Branting and Johnson, the following occurred: They left the bar at approximately 11 p.m. and drove west to Clarks in Johnson's Chevrolet pickup. Branting noticed a car following them that he believed to be that of Rhonda Braun, whom Johnson had been dating. When they got to Clarks, they confirmed that it was Braun's blue Oldsmobile behind them.
At approximately 11:10 or 11:12 p.m., Johnson dropped Branting off at Branting's home in Clarks, where he lived with his sister Juanita Engel and his nephew Trent Engel. Then, with Braun driving, Branting got into her car, and they followed Johnson out to the house of Amy Johnson, Johnson's exwife, approximately 3 miles northeast of Clarks. According to Johnson, when he arrived at the house of Amy Johnson, with whom he was attempting to reconcile, her clock said 11:45 p.m., and her clocks are 15 minutes fast. Amy Johnson, who had dated Carlson, testified that when Johnson arrived at her house, her clock showed about 12 midnight, but her clocks are 5 to 10 minutes fast.
Branting rode with Braun back to Clarks. They then drove through Clarks, went to Polk for beer and cigarettes, went back to Silver Creek, and then headed back west to Clarks. Approximately 3 miles east of Clarks, they noticed a vehicle off the road. Branting, wearing boots, waded down to the vehicle in ankle-deep water and determined that it was Carlson's pickup. He looked inside, saw blood and no movement from Carlson, and then went back to Braun's car. Branting and Braun then drove to Wirrick's residence in Clarks.
In reporting what he observed, Branting told Wirrick only the whereabouts of the vehicle and that it possibly belonged to Carlson. He did not...
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...preparation of witnesses, corroborating testimony, or assisting impeachment or rebuttal. (Emphasis supplied.) State v. Kula, 252 Neb. 471, 486, 562 N.W.2d 717, 727 (1997). Thus, under § 29-1912, evidence is material when there is a strong indication that it will play an important role in, a......
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State v. Kula
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