State v. Kula

• Decision Date: 11 August 2000
• Docket Number: No. S-99-093.,S-99-093.
• Citation: 260 Neb. 183,616 N.W.2d 313
• Parties: STATE of Nebraska, appellee, v. Edwin KULA, also known as Ed Kula, appellant.
• Court: Nebraska Supreme Court

616 N.W.2d 313

260 Neb. 183

STATE of Nebraska, appellee, v. Edwin KULA, also known as Ed Kula, appellant.

No. S-99-093.

Supreme Court of Nebraska.

August 11, 2000.

Mark M. Sipple, of Sipple, Hansen, Emerson & Schumacher, Columbus, and Adam J. Sipple, of Johnson & Mock, Omaha, for appellant.

Charles W. Campbell and Vincent Valentino, of Angle, Murphy, Valentino & Campbell, P.C., Special Prosecutors, York, for appellee.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

MILLER-LERMAN, J.

NATURE OF CASE

In December 1995, 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 first degree murder and to a consecutive term of 6 to 20 years' imprisonment for use of a weapon to commit a felony. Kula's 1995 convictions were reversed on appeal to this court due to prosecutorial misconduct, and the cause was remanded for a new trial. State v. Kula, 252 Neb. 471, 562 N.W.2d 717 (1997) (Kula I).

On remand, Kula moved for dismissal on the basis that retrial would violate his protection against double jeopardy and his right to a speedy trial. The district court rejected Kula's arguments, and upon appeal, this court affirmed the district court's order and remanded the cause for further proceedings. State v. Kula, 254 Neb. 962, 579 N.W.2d 541 (1998).

Upon retrial, venue was changed to the district court for Saunders County. In December 1998, Kula was convicted by a jury of second degree murder and the use of a weapon to commit a felony. The district court for Saunders County sentenced Kula to life in prison for second degree murder and to a consecutive term of 6 to 20 years' imprisonment for use of a weapon to commit a felony. Kula appeals his second convictions and sentences. We reverse, and remand for a new trial.

STATEMENT OF FACTS

The facts of this case and the procedural history pertaining to Kula's first trial are summarized in detail in Kula I and will not be repeated here except to the extent necessary to address the issues raised in this appeal. The evidence presented at the second trial was substantially similar to that presented at the first trial and recounted in Kula I. To the extent the evidence differed at the second trial and those differences are pertinent to the issues in this appeal, such differences are set forth in connection with the analysis of those issues below.

ASSIGNMENTS OF ERROR

Kula makes 29 assignments of error on appeal. We conclude that the following assigned error has merit and constitutes reversible error: The district erred in overruling Kula's best evidence objection to the admission of written transcripts of Kula's tape-recorded statement to Nebraska State Patrol Investigator William Mach and by permitting the redacted written transcription of the tape-recorded statement to be given to the jury for its review during deliberation without the edited tape-recorded statement having been played in open court.

With respect to the remaining assignments of error, we discuss certain assignments of error which are likely to recur during further proceedings. See State v. Dixon, 259 Neb. 976, 614 N.W.2d 288 (2000).

STANDARDS OF REVIEW

The following standards of review are applicable to Kula's first assignment of error pertaining to the admission of the written transcripts: In all proceedings where the Nebraska Evidence Rules apply, admissibility of evidence is controlled by such rules, not judicial discretion, except in those instances under the rules when judicial discretion is a factor involved in the admissibility of evidence. State v. Myers, 258 Neb. 300, 603 N.W.2d 378 (1999). Where the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court, the admissibility of evidence is reviewed for an abuse of discretion. State v. Lessley, 257 Neb. 903, 601 N.W.2d 521 (1999). A judicial abuse of discretion means that the reasons or rulings of the trial court are clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result in matters submitted for disposition. State v. Myers, 258 Neb. 272, 603 N.W.2d 390 (1999).

In a jury trial of a criminal case, an erroneous evidentiary ruling results in prejudice to a defendant unless the State demonstrates that the error was harmless beyond a reasonable doubt. State v. Jackson, 258 Neb. 24, 601 N.W.2d 741 (1999). In a jury trial of a criminal case, harmless error exists when there is some incorrect conduct by the trial court which, on review of the entire record, did not materially influence the jury in reaching a verdict adverse to a substantial right of the defendant. State v. Bjorklund, 258 Neb. 432, 604 N.W.2d 169 (2000). In determining whether error in admitting evidence was harmless, an appellate court bases its decision on the entire record in determining whether the evidence materially influenced the jury in a verdict adverse to the defendant. State v. Myers, supra.

ANALYSIS

Admission of Written Transcripts in Lieu of Tape-Recorded Interview and Submission of Redacted Transcript to Jury During Deliberations Without Prior Playing of Edited Tape Recording in Open Court.

Carlson was killed on April 15, 1994. Kula became a suspect in the murder investigation. On November 16, Mach, of the State Patrol, interviewed Kula regarding various matters, including guns owned by Kula and Kula's activities on the night of Carlson's murder. The interview was tape-recorded. Kula assigns as error the admission of the written transcripts of the tape-recorded interview.

In the interview, Kula, among other things, denied killing Carlson, admitted causing a van driven by his son to swerve toward Carlson on the night Carlson was killed, and said he may have had blackouts that night and did not remember parts of the night. When asked by Mach whether he owned an "Italian made seven point three five millimeter rifle," Kula denied owning such a rifle. Other evidence established that Kula had owned a 6.5-mm Carcano rifle and that Carcano rifles were made in Terni, Italy. Expert testimony established that the bullet found in Carlson's body was likely fired from such a rifle. In the interview, when Mach generally asked Kula to list guns he had owned and specifically asked whether he had owned a rifle, Kula failed to admit owning the 6.5-mm Carcano rifle. Kula also specifically denied having owned a gun made in Terni, Italy.

The tape-recorded interview contained certain inadmissible statements, including discussion of Kula's prior criminal record, references to hearsay regarding Kula's whereabouts on the night of the murder, and discussion of whether Kula was willing to submit to a polygraph examination. A written transcript of the tape recording was prepared. The State did not offer the tape recording itself into evidence. In lieu of the tape recording, the State offered into evidence both the complete written transcript, exhibit 240, and a redacted written transcript, exhibit 241, which deleted the inadmissible statements. Kula objected to the offer of the written transcripts on the basis that the tape itself was the best evidence of its contents. Kula's counsel noted that an edited version of the tape recording, deleting the inadmissible statements, was available. The State does not dispute the existence of an edited tape recording on appeal.

The trial court overruled Kula's objection, admitted the written transcripts, and allowed the redacted written transcript to be submitted to the jury. The edited version of the tape recording was not played for the jury, nor was the redacted transcript read into the record in open court. Instead, the jury was allowed to read the redacted transcript in the jury room during deliberations. Throughout the trial, the State presented evidence which was preferred as inconsistent with statements Kula had made to Mach in the interview and which evidence had the tendency to establish Kula's guilt. At various points during its closing argument, the State encouraged the jury in general to read the redacted transcript and, in particular, to pay attention to certain portions of Kula's statements in the redacted transcript which were inconsistent with other trial evidence.

Kula assigns the following error regarding admission of the written transcripts of the interview:

The trial court erred when it overruled [Kula]'s "best evidence" objections and allowed the State to introduce into evidence Exhibits 240 and 241, purported transcripts of [Kula]'s tape-recorded statements to a State Patrol investigator, rather than playing the recorded statements to the jury during the evidence portion of trial.

We agree with Kula that the trial court erred in admitting the transcripts to prove the contents of the tape recording without a finding that the tape recording was not available and in allowing the redacted transcript to be submitted to the jury to be read in the jury room during deliberations, where the jury first learned the contents of the transcript.

The issues raised by Kula's assignment of error are as follows: (1) whether the best evidence rule applies to the offer of the transcripts in lieu of the tape recording; (2) if so, whether the State proved an exception to the preference for the original tape recording which would allow admission of secondary evidence of the contents of the tape recording; and (3) if not, whether admission of the transcripts and the submission of the redacted transcript to the jury for its use in deliberations was harmless error. For the reasons recited below, we conclude on the law and the facts of this case that the best evidence rule applies to the tape recording, that the State did not establish an exception which would allow the admission of secondary evidence of the tape recording, and that the admission of the written redacted transcript and its...