State v. Lee, s. 83-118

• Court: Supreme Court of Nebraska
• Writing for the Court: KRIVOSHA; KRIVOSHA
• Citation: 216 Neb. 63,341 N.W.2d 600
• Parties: STATE of Nebraska, Appellee, v. Edward E. LEE, Appellant.
• Docket Number: 83-119,Nos. 83-118,s. 83-118
• Decision Date: 23 December 1983

Page 600

341 N.W.2d 600 216 Neb. 63 STATE of Nebraska, Appellee,
v.
Edward E. LEE, Appellant. Nos. 83-118, 83-119. Supreme Court of Nebraska. Dec. 23, 1983.

Page 601

Syllabus by the Court

1. Motions to Strike: Juries. Ordinarily, when a motion to strike inadmissible evidence is sustained and the jury is instructed to disregard it, such action by the court is deemed sufficient to prevent prejudice, and therefore the defendant is not entitled to a mistrial.

2. Trial: Evidence. Error in the admission of evidence is not grounds for reversal if no substantial miscarriage of justice occurred.

3. Trial: Evidence: Hearsay. To qualify as an excited utterance the following conditions must exist: (1) There must have been a startling event. (2) The statement must relate to the event. (3) The statement must have been made by the declarant while under the stress of the exciting event.

4. Trial: Evidence: Hearsay. A determination as to the admissibility of an excited utterance generally rests within the sound discretion of the trial court.

5. Criminal Law: Evidence. The refusal by the trial court to permit the introduction of cumulative evidence is not error and does not entitle a defendant to a new trial, absent a showing of an abuse of discretion.

[216 Neb. 64] Thomas M. Kenney, Douglas County Public Defender, and Stanley A. Krieger, Omaha, for appellant.

Paul L. Douglas, Atty. Gen., and Mark D. Starr, Lincoln, for appellee.

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

KRIVOSHA, Chief Justice.

The appellant, Edward E. Lee, was charged and convicted of first degree murder by a jury, in violation of Neb.Rev.Stat. § 28-303 (Reissue 1979), a Class I felony, and of being a felon in possession of a

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firearm in violation of Neb.Rev.Stat. § 28-1206 (Reissue 1979), a Class IV felony. We have examined the record, and although Lee's counsel makes an effective argument to this court, we believe that the assignments of error do not justify a reversal in this case. We therefore affirm both the convictions and the sentences.

The evidence discloses that in the early morning hours of Saturday, August 7, 1982, Lee was a passenger in an automobile being driven by Bonnie Welker. As they approached the intersection of 84th and L Streets in Omaha, Nebraska, they were met by another vehicle driven by Gregory Powell, in which the victim, Wilbert Swick, the owner of the vehicle, was a passenger. Welker testified that she had noticed the two males in the accompanying automobile yelling at her, although she was not able to understand what they were saying. She further testified in substance that the driver of the other car "came over in her lane" and, when she looked over at the automobile, the passenger blew her a kiss. This apparently irritated Lee. Both cars then arrived at the intersection of 84th and L Streets, where Welker negotiated her automobile into the right-hand turn lane, and she was about halfway into the turn when Lee made her stop the car by threatening to jump out. When Welker stopped the vehicle, Lee left the vehicle[216 Neb. 65] and went over to the Swick automobile. According to Powell, he saw Lee get out of the car and walk over to their car. Powell then heard Lee say, "Don't be flirting with my girl." Lee then exhibited a gun, swung it around, and fired a shot. After Lee left the vehicle and returned to the Welker automobile, Swick said, "Oh, my God, I have been shot, get me to a hospital." Powell rushed Swick to the Midlands Hospital, where he later died from the wounds.

According to Welker, when Lee returned to the Welker car he said, "I shot the gun." He further said, "I had the gun up to his head. I didn't even know I had the gun in my hand until it was up against his head. I was bringing it down when it went off." Welker further testified that Lee said he did not even remember pulling the trigger. Welker was permitted to testify that Lee was pretty upset and said he did not know why it had happened and that he did not know why God had picked on him for that to happen to. Both Welker and Lee drove around Omaha until approximately 6:30 a.m.

Lee was later arrested and charged with the crimes which resulted in his convictions. He was sentenced to life imprisonment on the charge of murder and to a term of 20 months' to 5 years' imprisonment on the charge of possession of a firearm by a felon. He now maintains that the convictions must be set aside because (1) it was error for the trial court to admit testimony concerning his sale or attempted sale of marijuana and (2) it was error to refuse to grant Lee a mistrial upon defense motion.

First, as to the assignment concerning the sale or attempted sale of marijuana, the record discloses that during the examination of Bonnie Welker, she testified that she and Lee had left Kansas City for Omaha about 11 a.m. on the morning of August 6, 1982. She testified that they were drinking in the car and were also smoking "pot." During her direct examination concerning this trip, the following exchange occurred between her and the prosecutor: [216 Neb. 66] "Q. When you drove back that day, were you guys doing any drinking on the way back? A. Yes, we were. Q. What were you drinking? A. We had a 12-pack of beer. Q. When you drove back from Kansas City that day, were you doing any drugs of any kind? A. Yes. Q. What? A. We were smoking pot. Q. Smoking pot? A. Yes. Q. All three of you? A. Yes. Q. Where had the pot come from? A. It was Stephanie's. Q. This girl that you mentioned earlier? A. Yes. Q. She wasn't with you, was she? A. No. Q. How did you end up with it? A. Because Ed [Lee] said if he had a bunch of pot, he could make some money. She took it down there to him. Q. Originally...