State v. Lotter

• Citation: 255 Neb. 456,586 N.W.2d 591
• Decision Date: 06 November 1998
• Docket Number: Nos. S-96-297,S-96-298,S-96-312,s. S-96-297
• Parties: STATE of Nebraska, Appellee, v. John L. LOTTER, Appellant.
• Court: Supreme Court of Nebraska

Page 591

586 N.W.2d 591

255 Neb. 456

STATE of Nebraska, Appellee, v. John L. LOTTER, Appellant.

Nos. S-96-297, S-96-298, S-96-312.

Supreme Court of Nebraska.

Nov. 6, 1998.

Syllabus by the Court

1. Trial: Judges: Words and Phrases. An ex parte communication occurs when a judge communicates with any person concerning a pending or impending proceeding without notice to an adverse party.

2. Trial: Judges: Recusal. A judge who initiates, invites, or considers an ex parte communication concerning a pending or impending proceeding before the judge must recuse himself or herself from the proceedings when a litigant requests such recusal.

3. Trial: Judges: Appeal and Error. One cannot know of improper judicial conduct, gamble on a favorable result as to that conduct, and then complain that he or she guessed wrong and does not like the outcome.

4. Sentences: Prosecuting Attorneys: Judges. While the prosecutor may participate in the sentencing proceedings, the prosecutor may not control or decide what the punishment shall be. The discretion to determine the appropriate sentence is vested in the judiciary.

5. Criminal Law: Sentences: Pleas: Plea Bargains. In the exercise of its sentencing discretion, it is proper for a trial court to grant sentence concessions to defendants who plead guilty when the interest of the public in the effective administration of criminal justice would be served.

6. Sentences: Plea Bargains. A trial court's indication of sentence necessarily constitutes participation in sentencing negotiations. However, the trial court may indicate whether it will concur in an agreement granting sentence concessions that is proposed by the parties, as such an indication does not bind the trial court.

7. Constitutional Law: Courts: Sentences. A trial court, because it is not bound by a sentencing indication, has not ceded its authority and, thus, has not violated the doctrine of separation of powers.

8. Sentences: Judges. A trial court's agreement to a sentencing concession that is otherwise legitimate is a legitimate judicial function. The trial court's dispatch of a legitimate judicial function does not indicate that the trial court is unfairly assisting the prosecution in its role.

9. Criminal Law: Standing: Sentences. A criminal defendant does not have standing to assert the illegality of a codefendant's sentencing agreement.

10. Standing: Words and Phrases. Standing means that a person has a sufficient legally protectable interest which may be affected in a justiciable controversy, entitling that person to judicial resolution of the controversy.

11. Constitutional Law: Criminal Law: Right to Counsel. The Sixth Amendment to the U.S. Constitution guarantees that in all criminal prosecutions, the accused shall enjoy the right to have the assistance of counsel for his defense. A criminal defendant's Sixth Amendment right to the assistance of counsel attaches only after the initiation of adversary judicial criminal proceedings--whether by way of formal charge, preliminary hearing, indictment, information, or arraignment. Once the right has attached, the accused is entitled to counsel at every critical stage of the proceeding.

12. Constitutional Law: Right to Counsel: Appeal and Error. To determine whether a proceeding is critical within the meaning of the Sixth Amendment right to counsel, an appellate court must examine the event in order to determine whether the accused required aid in coping with legal problems or assistance in meeting his adversary. In other words, when counsel's presence will not assist the accused in protecting his or her rights, that stage of the prosecution is not critical.

13. Constitutional Law. Article I, § 13, of the Nebraska Constitution does not create any new rights but is merely a declaration of a general fundamental principle.

14. Trial: Appeal and Error. When a factual issue arises after trial that would be dispositive of the case, the factual issue cannot be determined on appeal, but, rather, must be remanded for a determination in the trial court.

15. Trial: Appeal and Error. When an issue has not been raised or ruled on at the trial level and the matter necessitates an evidentiary hearing, an appellate court will not address the matter on direct appeal.

16. Evidence: Due Process: Words and Phrases. The suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. Favorable evidence is material, and constitutional error results from its suppression by the government, if there is a reasonable probability that had the evidence been disclosed to the defense, the result of the proceeding would have been different.

17. Evidence: Impeachment: Words and Phrases. Evidence that might be used to impeach the prosecution's witnesses is evidence favorable to the accused, so that if disclosed and used effectively, it may make the difference between conviction and acquittal.

18. Trial: Evidence. Where the prosecution delays disclosure of evidence, but the evidence is nonetheless disclosed during trial, Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), is not violated.

19. Evidence: Impeachment: Rebuttal Evidence. Under Neb.Rev.Stat. § 29-1912 (Reissue 1995), evidence is material when there is a strong indication that it will play an important role in, among other things, assisting impeachment or rebuttal.

20. Motions for Continuance: Evidence. When a continuance will cure the prejudice caused by belated disclosure of evidence, a continuance should be requested by counsel and granted by the trial court.

21. Testimony: Perjury: Evidence. The same standard applies to the failure to correct perjured testimony as applies to the failure to disclose evidence.

22. Prosecutorial Misconduct. When the prosecutor has already been advised by the trial court that a particular question will not be permitted but continues to ask the question in an attempt to elicit incompetent testimony, the prosecutor commits misconduct.

23. Motions for Mistrial: Motions to Strike: Proof: Appeal and Error. Error cannot ordinarily be predicated on the failure to grant a mistrial if an objection or motion to strike the improper material is sustained and the jury is admonished to disregard such material. The defendant must prove that the alleged error actually prejudiced him, rather than creating only the possibility of prejudice. Ordinarily, when an objection to or motion to strike improper evidence is sustained and the jury is instructed to disregard it, such instruction is deemed sufficient to prevent prejudice.

24. Motions for Mistrial: Prosecutorial Misconduct: Waiver: Appeal and Error. A party who fails to make a timely motion for mistrial based on prosecutorial misconduct waives the right to assert on appeal that the court erred in not declaring a mistrial due to such prosecutorial misconduct.

25. Juror Qualifications. The law does not require that a juror be totally ignorant of the facts and issues involved; it is sufficient if the juror can lay aside his or her impressions or opinions and render a verdict based on evidence presented in court.

26. Trial: Jurors: Appeal and Error. The retention or rejection of a venireperson as a juror is a matter of discretion with the trial court and is subject to reversal only when clearly wrong.

27. Criminal Law: Trial: Juries: Appeal and Error. Whether a jury is to be kept together before submission of the cause in a criminal trial is left to the discretion of the trial court. To warrant reversal, denial of a motion to sequester the jury before 28. Criminal Law: Motions for Continuance: Appeal and Error. A decision whether to grant a continuance in a criminal case is within the discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion.

submission of the cause must be shown to have prejudiced the defendant.

29. Evidence: Waiver: Appeal and Error. A party who fails to make a timely objection to evidence waives the right on appeal to assert prejudicial error concerning the evidence received without objection.

30. Hearsay: Words and Phrases. Prior consistent out-of-court statements are defined as nonhearsay and are admissible to rebut a charge of recent fabrication, improper influence, or improper motive only when those statements were made before the charged recent fabrication, improper influence, or improper motive.

31. Criminal Law: Aiding and Abetting: Intent: Liability. When a crime requires the existence of a particular intent, an alleged aider and abettor can be held criminally liable as a principal if it is shown that the aider and abettor knew that the perpetrator of the act possessed the required intent, or that the aider and abettor himself possessed the required intent.

32. Criminal Law: Aiding and Abetting: Convictions. An aider and abettor can be convicted of any crime, even a greater offense than the principal, provided the conviction is supported by the evidence of the facts and the defendant's state of mind.

33. Criminal Law: Jury Instructions: Aiding and Abetting. Aiding and abetting instructions must instruct the jury that the aider and abettor either personally intended that the underlying felony be committed or aided another person whom the aider and abettor knew had such an intent.

34. Criminal Law: Trial: Jury Instructions: Proof. In a criminal trial, the court in its instructions must delineate for the jury each material element the State is required to prove beyond a reasonable doubt to convict the defendant of the crime charged.

35. Jury Instructions: Appeal and Error. All the jury instructions must be read together, and if taken as a whole they correctly state the law, are not misleading, and adequately cover the issues supported by the pleadings and the evidence, there is no prejudicial...