State v. Lopez

Decision Date15 March 1996
Docket NumberNo. S-95-311,S-95-311
Citation544 N.W.2d 845,249 Neb. 634
PartiesSTATE of Nebraska, Appellee, v. Norma E. LOPEZ, Appellant.
CourtNebraska Supreme Court

Syllabus by the Court

1. Appeal and Error. An appellate court does not consider errors which are argued but not assigned.

2. Verdicts: Appeal and Error. A verdict in a criminal case must be sustained if the evidence, viewed and construed most favorably to the State, is sufficient to support that verdict. Moreover, on such a claim, an appellate court will not set aside a guilty verdict in a criminal case where such verdict is supported by relevant evidence.

3. Convictions: 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 weigh the evidence. Such matters are for the trier 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.

4. Trial: Expert Witnesses: Appeal and Error. The admission of expert testimony is ordinarily within the discretion of the trial court, and its ruling will be upheld in the absence of an abuse of discretion.

5. Trial: Rules of Evidence: Expert Witnesses. The helpfulness test subsumes a relevancy analysis. In making its determination, the court must proceed on a case-by-case basis. Its conclusions will depend on (1) the court's evaluation of the state of knowledge presently existing about the subject of the proposed expert testimony and (2) the court's appraisal of the facts of the case.

6. Trial: Rules of Evidence: Expert Witnesses. Under the helpfulness standard, a court may exclude an expert's opinion which is nothing more than an expression of how the trier of fact should decide a case, and when an expert's opinion on a disputed issue is a conclusion which may be deduced equally as well by a trier of fact with sufficient evidence on the issue, the expert's opinion is superfluous and does not assist the trier in understanding the evidence or determining a factual issue.

7. Trial: Rules of Evidence: Expert Witnesses. There are four questions a court considers to determine the admissibility of expert testimony under Neb. Evid. R. 702, Neb.Rev.Stat. § 27-702 (Reissue 1989): (1) Does the witness qualify as an expert pursuant to rule 702? (2) Is the expert's testimony relevant? (3) Will the expert's testimony assist the trier of fact to understand the evidence or to determine a controverted factual issue? and (4) Should the expert's testimony, even though relevant and admissible, be excluded in light of Neb. Evid. R. 403, Neb.Rev.Stat. § 27-403 (Reissue 1989)?

8. Trial: Rules of Evidence: Expert Witnesses: Appeal and Error. A trial court's factual finding pursuant to Neb. Evid. R. 104(1), Neb.Rev.Stat. § 27-104(1) (Reissue 1989), concerning a determination whether a witness qualifies as an expert under Neb. Evid. R. 702, Neb.Rev.Stat. § 27-702 (Reissue 1989), will be upheld on appeal unless clearly erroneous.

9. Trial: Rules of Evidence: Expert Witnesses. If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

10. Motions to Suppress: Appeal and Error. A trial court's ruling on a motion to suppress is to be upheld on appeal unless its findings of fact are clearly erroneous.

11. Motions to Suppress: Appeal and Error. In determining whether a trial court's findings on a motion to suppress are clearly erroneous, an appellate court does not reweigh the evidence or resolve conflicts in the evidence, but, rather, recognizes the trial court as the finder of fact and takes into consideration that it observed the witnesses.

12. Motions to Suppress: Appeal and Error. In determining the correctness of a trial court's ruling on a suppression motion, an appellate court will accept the factual determinations and credibility choices made by the trial court unless, in light of all the circumstances, such findings are clearly erroneous.

13. Criminal Law: Police Officers and Sheriffs: Miranda Rights: Words and Phrases. General onscene questioning as to the facts surrounding a crime does not constitute a "custodial interrogation."

14. Right to Counsel: Waiver. The general rule is that an accused may waive his or her right to counsel where such waiver is made intelligently and understandingly, with knowledge of the right to counsel.

15. Motions to Suppress: Confessions: Proof. The State has the burden to establish by a preponderance of the evidence that a defendant's statement was voluntary and not coerced.

16. Confessions: Police Officers and Sheriffs: Due Process. Coercive police conduct is a necessary predicate to the finding that a confession is not voluntary within the meaning of the Due Process Clause of the 14th Amendment.

17. Criminal Law: Directed Verdict. In a criminal case, a court can direct a verdict only when there is a complete failure of evidence to establish an essential element of the crime charged or the evidence is so doubtful in character, lacking probative value, that a finding of guilt based on such evidence cannot be sustained.

18. Directed Verdict. If there is any evidence which will sustain a finding for the party against whom a motion for directed verdict is made, the case may not be decided as a matter of law.

19. Criminal Law: Motions to Dismiss: Evidence. In determining whether a criminal defendant's motion to dismiss for insufficient evidence should be sustained, the State is entitled to have all of its relevant evidence accepted as true, the benefit of every inference that can reasonably be drawn from the evidence, and every controverted fact resolved in its favor.

20. Homicide: Intent: Juries. The question of premeditation is for the jury.

21. Juries: Discrimination: Prosecuting Attorneys: Proof. To make a prima facie case of purposeful discrimination in the selection of a jury based on the prosecutor's use of peremptory challenges, the defendant must show (1) that he is a member of a cognizable racial group, (2) that the prosecutor has exercised peremptory challenges to remove from the panel members of the defendant's race, and (3) that facts and other circumstances raise an inference that the prosecutor used the challenges to exclude potential jurors based on their race. After the defendant has made a prima facie showing, the burden shifts to the State to provide a neutral explanation for challenging the jurors.

22. Juries: Discrimination: Prosecuting Attorneys: Proof. If the trial court does not state on the record that the defendant has met the burden of proving a prima facie case of discrimination in jury selection, it does so implicitly by asking the State to articulate its reasons for the questioned strikes.

23. Juries: Discrimination: Prosecuting Attorneys: Appeal and Error. A trial court's determination of the adequacy of the State's "neutral explanation" of its peremptory challenges will not be reversed upon appeal unless clearly erroneous.

Appeal from the District Court for Hall County: James Livingston, Judge. Affirmed.

Kevin K. Knake and Thomas J. Gaul, Deputy Hall County Public Defenders, for appellant.

Don Stenberg, Attorney General, Jay C. Hinsley, and, on brief, Delores Coe-Barbee, for appellee.

WHITE, C.J., and CAPORALE, FAHRNBRUCH, LANPHIER, WRIGHT, CONNOLLY, and GERRARD, JJ.

LANPHIER, Justice.

The defendant in this case, Norma E. Lopez, was charged with and tried in the district court for Hall County, Nebraska, for killing Sotero Gandarilla in the defendant's trailer. Following a jury trial, she was convicted of murder in the first degree and use of a weapon in commission of a felony. The defendant appeals, claiming as errors, in summary, that the district court erred in (1) not allowing certain proffered expert testimony from "Bud" Deats in the form of his conclusions upon reconstructing the crime scene, (2) overruling the defendant's motion to suppress statements made by her which were elicited in violation of her Fifth Amendment rights, (3) overruling the defendant's motion for a directed verdict, (4) not ruling that there was insufficient evidence to convict, and (5) overruling the defendant's objection to the State's striking the sole African-American juror on the panel. We affirm.

BACKGROUND

On March 25, 1994, the defendant had a party in her trailer home. During the course of the party, the defendant and a guest, Sotero Gandarilla, started to argue. The argument continued while the defendant and Gandarilla went into a bedroom in the defendant's home. The defendant's daughter was sitting in the bedroom, and the defendant asked the daughter to find the bullets for her gun. The daughter told the defendant that she did not know where the bullets were and then went to a neighbor's house for help.

Upon returning to the home of the defendant, the daughter heard a gunshot. Upon entering the bedroom, witnesses saw Gandarilla's body on the floor and the defendant holding a gun. During the melee which followed, witnesses stated, the defendant was at one time too drunk to dial the phone.

The police responded to a call of someone hearing a gunshot. An officer went to the defendant's home. The officer knocked and the defendant appeared. The officer asked if he could enter, and the defendant replied that he could not and that she would check the trailer for him. Soon after, the defendant returned to the front door of the trailer and stated to the officer, "He's dead; he's been shot." She initially refused to give the name of the victim.

The officer asked, "Can I come in and check?" to which the defendant answered, "Yes, you can." The officer found the body. The officer asked...

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21 cases
  • State v. Rodriguez
    • United States
    • Nebraska Court of Appeals
    • 7 Octubre 1997
    ...favorably to the State, is sufficient to support the conviction. State v. Glantz, 251 Neb. 947, 560 N.W.2d 783 (1997); State v. Lopez, 249 Neb. 634, 544 N.W.2d 845 (1996); State v. Pierce, 248 Neb. 536, 537 N.W.2d 323 (1995); State v. McCaslin, 240 Neb. 482, 482 N.W.2d 558 A trial court's d......
  • State v. Brooks
    • United States
    • Nebraska Court of Appeals
    • 18 Febrero 1997
    ...on a motion to suppress has traditionally been upheld on appeal unless its findings of fact are clearly erroneous. State v. Lopez, 249 Neb. 634, 544 N.W.2d 845 (1996). However, a new standard of review has emerged in cases such as this involving the legality of investigative stops and subse......
  • State v. Johnson
    • United States
    • Nebraska Court of Appeals
    • 11 Abril 2000
    ...sex, the credibility of witnesses and resolution of conflicts in the evidence is for the jury to determine. See State v. Lopez, 249 Neb. 634, 544 N.W.2d 845 (1996). There was neither a failure of proof of an element of the crime charged nor evidence so doubtful in character and lacking in p......
  • State v. Newman, S-94-833
    • United States
    • Nebraska Supreme Court
    • 7 Junio 1996
    ...court's ruling on a motion to suppress is to be upheld on appeal unless its findings of fact are clearly erroneous. State v. Lopez, 249 Neb. 634, 544 N.W.2d 845 (1996). In determining whether a trial court's findings on a motion to suppress are clearly erroneous, an appellate court does not......
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