State v. Marco

• Decision Date: 18 November 1988
• Docket Number: No. 87-886,87-886
• Citation: 432 N.W.2d 1,230 Neb. 355
• Parties: STATE of Nebraska, Appellee, v. Jerry A. MARCO, Appellant.
• Court: Nebraska Supreme Court

Page 1

432 N.W.2d 1

230 Neb. 355

STATE of Nebraska, Appellee, v.Jerry A. MARCO, Appellant.

No. 87-886.

Supreme Court of Nebraska.

Nov. 18, 1988.

Syllabus by the Court

1.Motions to Suppress: Appeal and Error.In reviewing a court's ruling as the result of a suppression hearing, the Supreme Court does not reweigh the evidence or resolve conflicts in the evidence.At a hearing to suppress evidence, the court, as the "trier of fact," is the sole judge of the credibility of witnesses and the weight to be given to their testimony and other evidence.The Supreme Court will uphold the trial court's findings of fact in a suppression hearing unless those findings are clearly wrong.

2.Search and Seizure: Arrests: Probable Cause.The validity of a search, as an incident of a felony arrest without a warrant, depends on the presence or absence of probable cause for the arrest, that is, whether immediately before the search an officer has probable cause to believe that the person to be searched has committed a felony.

3.Police Officers and Sheriffs: Arrests: Probable Cause.When a law enforcement officer has knowledge, based on information reasonably trustworthy under the circumstances, which justifies a prudent belief that a suspect is committing or has committed a crime, the officer has probable cause to arrest without a warrant.

4.Aiding and Abetting: Jury Instructions.An aiding and abetting instruction is usually proper where two or more parties are charged with commission of the offense.

5.Aiding and Abetting.Aiding and abetting involves some participation in the criminal act and must be evidenced by some word, act, or deed.No particular acts are necessary, nor is it necessary that any physical part in the commission of the crime is taken or that there was an express agreement therefor.Mere encouragement or assistance is sufficient.

6.Jury Instructions.It is the duty of the trial court, upon request of the accused, to instruct the jury upon any valid defense if there is credible evidence to support it.However, the trial court is not required to give an instruction where there is insufficient evidence to support the facts claimed.

Casey J. Quinn, Omaha, for appellant.

Robert M. Spire, Atty. Gen., and James H. Spears, Lincoln, for appellee.

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

FAHRNBRUCH, Justice.

Jerry A. Marco appeals his jury convictions on three drug-related offenses and his concurrent 20-month to 5-year sentences on two of the charges.We vacate one sentence, reverse one conviction, affirm two convictions and one sentence, and remand for resentencing on one conviction.

The information charges that Marco did: count I, knowingly or intentionally acquire or obtain or attempt to acquire or obtain possession of a controlled substance, meperidine, by misrepresentation, fraud, forgery, deception, or subterfuge; count II, intentionally possess a controlled substance, Demerol, also known as meperidine; and count III, conspire with another person to acquire or attempt to acquire a controlled substance, Demerol, also known as meperidine, by fraud, contrary to Neb.Rev.Stat. §§ 28-418(1)(c)(Reissue 1985), 28-416(3)(Cum.Supp.1986), and 28-202(1)(Reissue 1985), respectively, all of which are Class IV felonies.

Each offense carries a possible penalty of not more than 5 years' imprisonment and/or up to a $10,000 fine.Neb.Rev.Stat. § 28-105(1)(Reissue 1985).The sentences could be imposed consecutively.

In sentencing Marco, the trial judge found that the elements in count I were also contained in count III and "constitute one offense for purposes of sentencing."He then imposed concurrent 20-month to 5-year terms of imprisonment upon the defendant on counts II and III.Two days' credit on the sentences was given for Marco's time spent in jail awaiting final disposition of the case.

Marco's first two assignments of error claim that the trial court erred (1) in entering a conviction on the charge of conspiracy where no overt act was alleged in count III of the information and (2) by not properly instructing the jury in regard to an overt act requirement in a conspiracy charge.

Neb.Rev.Stat. § 29-2014(Reissue 1985) provides:

In trials for conspiracy, in cases where an overt act is required by law to consummate the offense, no conviction shall be had unless one or more overt acts be expressly alleged in the indictment, nor unless one or more of the acts so alleged be proved on trial; but other overt acts not alleged in the indictment may be given in evidence on the part of the prosecution.

(Emphasis supplied.)

There is no overt act expressly alleged in count III of the information charging Marco with conspiracy.There is merely an allegation that the defendant"or another person with whom he conspired did commit an overt act."Section 29-2014 is resolute that a defendant may not be convicted unless the overt act is expressly alleged in the information.Since the conspiracy charge against Marco does not meet that necessary statutory requirement, Marco's sentence for conspiracy must be vacated, his conspiracy conviction set aside, and the charge dismissed.

Marco's four remaining assignments of error, rearranged and summarized, claim the trial court erred by: (1) failing to sustain the defendant's motion to suppress illegally seized evidence; (2) instructing the jury on aiding and abetting; (3) failing to instruct the jury on Marco's theory of defense; and (4) failing to adequately instruct the jury on the law and in misleading the jury by the instructions given.None of these assignments of error have merit.

On January 5, 1987, a female, identifying herself as being from a Dr. Soori's office, telephoned Michael Cordwin, a pharmacist at the LaVista Pharmacy in Sarpy County, Nebraska.The caller asked whether the pharmacy had 500, 50-mg. Demerol tablets in stock.Cordwin said that he did not, but that he would sell what he had in stock and obtain the balance within 2 days.

Thereafter, Cordwin telephoned Dr. Soori's office to verify the order.A female confirmed that she placed the call and that the prescription was legitimate.Cordwin could not recall if the caller or the female in Dr. Soori's office gave a name.He testified, however, that the voice of the caller and the voice of the female in Dr. Soori's office were the same.

At about 7 p.m. the same day, a woman resembling Cynthia Marcault went into the LaVista Pharmacy and asked if the prescription for a Frank Belt was ready.She produced a written prescription intended for Belt for 500, 50-mg. Demerol tablets, signed by Dr. Soori.As required by law, the prescription form contained a space for the patient's address.It was blank.Cordwin inserted the address given to him by the woman who presented the prescription.The address was for the K mart Pharmacy in Bellevue, Nebraska, and had been written on the back of the prescription.Cordwin partially filled the prescription with 49 Demerol tablets.He told the woman that the remainder of the prescription would be ready by Wednesday, January 7.

Cordwin left a note and the Belt prescription for Ronald Degand, owner pharmacist of the LaVista Pharmacy.Degand called the state board of pharmacy.He asked if he could legally dispense the number of Demerol pills in the prescription.In addition, Degand called Dr. Soori's office.Melody Karnes, a registered nurse employed by Dr. Soori since November 1984, said she was familiar with Dr. Soori's patient, Frank Belt.

Karnes testified that Dr. Soori prescribed 500 Demerol tablets for his patient every 2 weeks.Typically, Belt would call and request the prescription.Karnes would verify it with Dr. Soori and then call K mart Pharmacy in Bellevue and place the order for the prescription.Dr. Soori would sign a prescription for Belt, and it would be mailed to the K mart Pharmacy.

Karnes related that Belt, on January 5, 1987, requested a refill of his Demerol prescription.Karnes said she wrote the prescription and when Dr. Soori came in, he signed it.Karnes placed the order for the prescription with K mart Pharmacy.She said she laid the written prescription in a pile to be mailed that night.In addition to Karnes, Dr. Soori also employed a part-time bookkeeper and a medical technician named Kammie Smith.

Karnes testified she never phoned the LaVista Pharmacy about someone picking up a prescription for 500 Demerol tablets for Frank Belt.She said she never removed the prescription from Dr. Soori's office or gave it to anyone.Karnes testified she did not know either Marco or his codefendant, Cynthia Marcault.

After Degand talked with Karnes, he telephoned the State Patrol.Before an officer arrived, Degand received a phone call from a female who identified herself as "Kammie" from Dr. Soori's office."Kammie" asked Degand if the prescription for Belt was ready.Degand told her it was partially filled on Monday and the rest of the pills were on order and would be in on Wednesday.

Approximately 10 minutes after the conversation with "Kammie,"State Patrol Sgt.Paul R. Wagner arrived at the pharmacy to talk to Degand.At Sergeant Wagner's request, Degand called "Kammie" and told her that he could have the remainder of the Belt prescription ready in about an hour if that would help."Kammie" said, "No, the Belts will pick it up tomorrow.""Tomorrow" was Wednesday, January 7.

About noon on January 7, 1987, while a State Patrolman, Robert Cooper, was stationed behind the prescription department, a male caller asked Degand if the Belt prescription was ready.Degand said it was and told the caller that a balance of $147 was owed on the prescription.The caller responded that "we" will be there shortly.

About 12:40 p.m., defendant's codefendant, Marcault, alighted from a maroon and white Chevrolet in front of the pharmacy and entered the store.The male driver, later identified as Marco, waited in the...