State v. McCave
| Citation | 282 Neb. 500,805 N.W.2d 290 |
| Decision Date | 14 October 2011 |
| Docket Number | No. S–10–232.,S–10–232. |
| Parties | STATE of Nebraska, appellee, v. Jeffrey McCAVE, appellant. |
| Court | Supreme Court of Nebraska |
OPINION TEXT STARTS HERE
Syllabus by the Court
1. Criminal Law: Courts: Appeal and Error. In an appeal of a criminal case from the county court, the district court acts as an intermediate court of appeals, and its review is limited to an examination of the record for error or abuse of discretion.
2. Courts: Appeal and Error. Both the district court and a higher appellate court generally review appeals from the county court for error appearing on the record.
3. Judgments: Appeal and Error. When reviewing a judgment for errors appearing on the record, an appellate court's inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable.
4. Appeal and Error. An appellate court independently reviews questions of law in appeals from the county court.
5. Criminal Law: Courts: Appeal and Error. When deciding appeals from criminal convictions in county court, an appellate court applies the same standards of review that it applies to decide appeals from criminal convictions in district court.
6. Jurisdiction: Final Orders: Appeal and Error. An appellate court does not acquire jurisdiction of an appeal unless a party is appealing from a lower tribunal's final order or judgment.
7. Jurisdiction: Appeal and Error. If the district court, sitting as an intermediate appellate court, lacked jurisdiction over a party's appeal, a higher appellate court also lacks jurisdiction to decide the merits of the appeal.
8. Jurisdiction: Appeal and Error. An appellate court determines jurisdictional questions that do not involve a factual dispute as a matter of law.
9. Criminal Law: Final Orders. Generally, an order entered during the pendency of a criminal case is final only when no further action is required to completely dispose of the pending case.
10. Criminal Law: Final Orders: Sentences. Before a criminal conviction is a final judgment, the trial court must pronounce sentence.
11. Final Orders: Indictments and Informations: Motions for Mistrial. No final judgment occurs when a trial court declares a mistrial that applies to every count in the charging instrument.
12. Constitutional Law: Criminal Law: Appeal and Error. Neb. Const. art. I, § 23, guarantees the right to appeal in all felony cases.
13. Constitutional Law: Criminal Law: Due Process: Appeal and Error. Although the U.S. Constitution does not guarantee the right to appeal a criminal conviction, if a state provides an appeal as a matter of right, its appellate procedures must comport with due process.
14. Indictments and Informations: Joinder: Motions for Mistrial: Appeal and Error. When the trial court has declared a mistrial as to one or more counts in a multicount charging instrument, those counts should be treated as severed—to be resolved in a new proceeding. The defendant may appeal his conviction and sentence without waiting until a court enters judgment on every count.
15. Motions to Suppress: Investigative Stops: Warrantless Searches: Probable Cause: Appeal and Error. In reviewing a trial court's ruling on a motion to suppress based on the Fourth Amendment, an appellate court will uphold its findings of fact unless they are clearly erroneous. But an appellate court reviews de novo the trial court's ultimate determinations of reasonable suspicion to conduct an investigatory stop and probable cause to perform a warrantless search.
16. Constitutional Law: Search and Seizure. The Fourth Amendment to the U.S. Constitution and article I, § 7, of the Nebraska Constitution protect individuals against unreasonable searches and seizures by the government.
17. Arrests: Search and Seizure: Probable Cause: Words and Phrases. An arrest is a highly intrusive detention (seizure) of a person that must be justified by probable cause.
18. Warrantless Searches: Probable Cause: Police Officers and Sheriffs. Probable cause to support a warrantless arrest exists only if the officer has knowledge at the time of the arrest, based on information that is reasonably trustworthy under the circumstances, that would cause a reasonably cautious person to believe that a suspect has committed or is committing a crime.
19. Probable Cause: Words and Phrases. Probable cause is a flexible, commonsense standard that depends on the totality of the circumstances.
20. Probable Cause: Police Officers and Sheriffs. Probable cause is not defeated because an officer incorrectly believes that a crime has been or is being committed.
21. Probable Cause: Police Officers and Sheriffs. Implicit in the probable cause standard is the requirement that a law enforcement officer's mistakes be reasonable.
22. Probable Cause: Appeal and Error. An appellate court determines whether probable cause existed under an objective standard of reasonableness, given the known facts and circumstances.
23. Drunk Driving. Under Neb.Rev.Stat. § 60–6,108(1) (Reissue 2008), Nebraska's driving under the influence statutes do not apply to a person's operation or control of a vehicle on private property that is not open to public access.
24. Words and Phrases. Under Neb.Rev.Stat. § 60–649 (Reissue 2010), a residential driveway is not private property that is open to public access.
25. Drunk Driving. Criminal liability under Neb.Rev.Stat. § 60–6,196 (Reissue 2010) does not extend to intoxicated persons in control of a vehicle on a residential driveway, regardless of whether part of the vehicle crosses a sidewalk.
26. Drunk Driving: Circumstantial Evidence. In driving under the influence cases, circumstantial evidence can establish a person's operation of a motor vehicle.
27. Criminal Law: Eyewitnesses: Presumptions. A citizen informant who has personally observed the commission of a crime is presumptively reliable.
28. Constitutional Law: Arrests: Police Officers and Sheriffs. Before officers invoke the power of a warrantless arrest, the Fourth Amendment requires them to investigate the basic evidence for the suspected offense and reasonably question witnesses readily available at the scene, at least when exigent circumstances do not exist. This is particularly true when the circumstances the officers encounter are consistent with lawful conduct.
29. Arrests: Evidence. An illegal arrest does not bar the State from prosecuting a defendant for the charged offenses with evidence that was untainted by the illegal arrest.
30. Evidence: Appeal and Error. The improper admission of evidence, even tainted evidence, is a trial error subject to harmless error analysis.
31. Trial: Evidence: Appeal and Error. An erroneous admission of evidence is prejudicial to a defendant unless the State demonstrates that the error was harmless beyond a reasonable doubt.
32. Verdicts: Juries: Appeal and Error. 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's verdict adversely to a defendant's substantial right.
33. Appeal and Error. When determining whether an alleged error is so prejudicial as to justify reversal, an appellate court generally considers whether the error, in the light of the totality of the record, influenced the outcome of the case.
34. Evidence: New Trial: Appeal and Error. Upon finding reversible error in a criminal trial, an appellate court must determine whether the total evidence admitted by the district court, erroneously or not, was sufficient to sustain a guilty verdict. If it was not, then double jeopardy forbids a remand for a new trial.
35. Verdicts: Appeal and Error. Only where evidence lacks sufficient probative value as a matter of law may an appellate court set aside a guilty verdict as unsupported by evidence beyond a reasonable doubt.
36. Arrests: Blood, Breath, and Urine Tests. The validity of a refusing to submit charge under Neb.Rev.Stat. § 60–6,197(3) (Reissue 2010) depends upon the State's showing a valid arrest under § 60–6,197(2).
37. Drunk Driving: Police Officers and Sheriffs: Blood, Breath, and Urine Tests. Under Neb.Rev.Stat. § 60–6,197(2) (Reissue 2010), a peace officer can require a person to submit to a chemical test of his or her blood, breath, or urine when the following circumstances are present: (1) The officer has arrested the person for committing an offense arising out of acts alleged to have been committed while the person was driving or in actual physical control of a vehicle and under the influence of alcohol or drugs; and (2) the officer has reasonable grounds to believe that the person was driving or was in the actual physical control of a motor vehicle in this state while under the influence of alcohol or drugs, in violation of Neb.Rev.Stat. § 60–6,196 (Reissue 2010). In addition, the person's conduct must not have occurred on private property that is not open to public access.
38. Drunk Driving: Probable Cause: Police Officers and Sheriffs. Law enforcement officers must have probable cause to arrest a person for driving under the influence.
39. Drunk Driving: Arrests: Probable Cause: Police Officers and Sheriffs: Blood, Breath, and Urine Tests: Convictions. If law enforcement officers lack probable cause to arrest a person for driving under the influence, they lack authority to require the person to submit to a chemical test and a conviction for refusing to submit to the test is unlawful.
40. Criminal Law: Motions to Dismiss: Directed Verdict: Waiver: Convictions: Appeal and Error. In a criminal trial, after a court overrules a defendant's motion for a dismissal or a directed verdict, the defendant waives any right to challenge the trial court's ruling if the defendant proceeds with trial and introduces evidence. But the defendant may challenge the sufficiency of the evidence for the conviction.
41. Evidence: Appeal and Error. In reviewing a sufficiency of the evidence claim,...
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