State v. Neujahr
| Decision Date | 08 December 1995 |
| Docket Number | No. S-94-663,S-94-663 |
| Citation | 540 N.W.2d 566,248 Neb. 965 |
| Parties | STATE of Nebraska, Appellee, v. Gregory T. NEUJAHR, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Trial: Rules of Evidence: Hearsay: Words and Phrases. Hearsay is defined as a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Neb.Evid.R. 801(3).
2. Rules of Evidence: Hearsay. Hearsay is not admissible except as provided by the rules of evidence or by other rules 3. Rules of Evidence: Hearsay. A statement is not hearsay if the statement is offered against a party and is his or her own statement, in either his or her individual or representative capacity. Neb.Evid.R. 801(4)(b)(i).
adopted by the statutes of the State of Nebraska. Neb.Evid.R. 802.
4. Hearsay. An oral admission by a party can be shown only by the testimony of a person who heard it; a witness who did not hear the admission cannot testify as to what a person who did hear the admission told him or her about it.
5. Rules of Evidence: Hearsay. When an out-of-court statement relates the content of another out-of-court statement, there must be an independent hearsay exception for each statement.
6. Criminal Law: Trial: Evidence: Appeal and Error. The erroneous admission of evidence in a criminal trial is not prejudicial if it can be said that the error was harmless beyond a reasonable doubt.
7. Trial: Juries: Evidence: Appeal and Error. In determining whether error in admitting evidence was harmless, an appellate court bases its decision on the entire record in determining whether the evidence materially influenced the jury in a verdict adverse to the defendant.
8. Trial: Evidence: Appeal and Error. The erroneous admission of evidence is harmless error and does not require reversal if the evidence is cumulative and if other relevant evidence, properly admitted, supports the finding by the trier of fact.
9. Trial: Motions to Strike: Appeal and Error. The failure to make a timely objection or motion to strike will ordinarily bar a party from later claiming error in the admission of testimony.
10. Jury Instructions: Proof: Appeal and Error. To establish reversible error from a court's refusal to give a requested instruction, an appellant has the burden to show that (1) the tendered instruction is a correct statement of the law, (2) the tendered instruction is warranted by the evidence, and (3) the appellant was prejudiced by the court's refusal to give the tendered instruction.
11. Controlled Substances: Intent. One possesses a controlled substance when one knows of the nature or character of the substance and of its presence and has dominion or control over it.
12. Jury Instructions. It is not error for a trial court to refuse to give a defendant's requested instruction where the substance of the requested instruction was covered in the instructions given.
13. 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 error necessitating reversal.
14. Jury Instructions. As a general rule, in giving instructions to the jury, it is proper for the court to describe the offense in the language of the statute.
15. Courts: Juries. A court can, in the exercise of its discretion, refuse to reply to questions from the jury regarding the applicable law.
16. Supreme Court: Courts: Appeal and Error. The Nebraska Supreme Court, upon granting further review which results in the reversal of a decision of the Nebraska Court of Appeals, may consider, as it deems appropriate, some or all of the assignments of error the Court of Appeals did not reach.
Bruce E. Stephens, York, for appellant.
Don Stenberg, Attorney General, and Joseph P. Loudon, Lincoln, for appellee.
The State alleges the Court of Appeals erred in finding that the trial court erroneously (1) admitted into evidence certain inadmissible hearsay and (2) instructed the jury regarding Neujahr's claim that he did not know the pills in his pocket were a controlled substance.
On August 24, 1993, at approximately 11:50 p.m., Deputy Alan Kosmicki of the York County Sheriff's Department was dispatched to Pam Johnson's residence in Gresham, Nebraska. Upon arrival, Deputy Kosmicki discovered that Gregory T. Neujahr, an acquaintance of Johnson's, was creating a disturbance at the residence. As a result, Deputy Kosmicki arrested Neujahr for trespassing and disturbing the peace and took him to jail in York, Nebraska. While Neujahr was being booked into jail, his pants pockets were emptied, and six pills, along with the fragments of another, were found in a cellophane wrapper. Laboratory tests established that three of the pills were clorazepate, a tranquilizer described as a Schedule IV drug pursuant to Neb.Rev.Stat. § 28-405 (Cum.Supp.1992).
At trial, Neujahr admitted that he had the pills on his person. His defense was that he did not know what the pills were. He testified that Audrey Jean Nisula, an acquaintance of both Neujahr and Johnson, accidentally dropped the pills in his vehicle and that he picked them up, placed them in a cellophane cigarette wrapper, and put them in his pocket to prevent a child from obtaining them.
However, Nisula testified that she never had her prescription pill bottle in Neujahr's vehicle; that Neujahr came over to her house prior to being arrested, asking for a shot of whiskey; that he sat at her kitchen table drinking whiskey for approximately 45 minutes; that her clorazepate was on the same table during this time period; and that while he was sitting at the table, she was cleaning house and was, for part of the time, in a different room of the house.
The jury found Neujahr guilty of knowingly or intentionally possessing a controlled substance. The Court of Appeals reversed Neujahr's conviction, finding that the trial court erred in not properly instructing the jury regarding Neujahr's claim that he did not know the pills in his pocket were a controlled substance and in admitting certain hearsay testimony. The State petitions for further review.
The State first contends the Court of Appeals erred in finding that the trial court erroneously admitted into evidence certain inadmissible hearsay. During the trial, Nisula was called as a witness by the defense. During cross-examination by the State, Nisula was asked if she had a conversation with Johnson regarding Neujahr. Defense counsel timely objected to the question on the basis of hearsay, and the court overruled the objection. Nisula then testified that "[s]he [Johnson] informed me that Greg [Neujahr] was in jail and that he had called [Johnson] and asked her to ask me if I would come into court and state that I had dropped my medication in his truck." The Court of Appeals found this statement to be hearsay and concluded that the trial court erred in admitting it into evidence.
Hearsay is defined as "a statement, other than one made by the declarant while "A statement is not hearsay if ... [t]he statement is offered against a party and is ... his own statement, in either his individual or representative capacity." Rule 801(4)(b)(i). An oral admission by a party can be shown only by the testimony of a person who heard it; a witness who did not hear the admission cannot testify as to what a person who did hear the admission told him or her about it. See State v. Evans, 169 N.W.2d 200 (Iowa 1969), citing with approval 31A C.J.S. Evidence § 193 i. at 546. Thus, rule 801(4)(b)(i) is inapplicable because Nisula did not personally hear Neujahr make the statement in question to Johnson. As a result, Nisula's testimony about what Johnson stated that Neujahr said is multiple hearsay if offered to prove the truth of the matter asserted.
testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Neb.Evid.R. 801(3). "Hearsay is not admissible except as provided by [the] rules [of evidence] or by other rules adopted by the statutes of the State of Nebraska." Neb.Evid.R. 802. We find that Nisula's testimony about what both Johnson and Neujahr said raises multiple hearsay concerns.
The State argues that Nisula's testimony was not hearsay because it was not offered to prove the truth of the matter asserted, but to show that Neujahr made a request through Johnson for Nisula to perjure herself. The State correctly argues that it did not offer the statements to prove that Nisula dropped her pills in Neujahr's vehicle. However, Nisula's testimony also asserted that Neujahr attempted to have Johnson obtain false testimony. Thus, the truth of what Johnson told Nisula is a matter the State was trying to prove through Nisula's testimony. For that reason, Nisula's testimony is...
To continue reading
Request your trial
-
State v. Schmidt
...the timeliness of the State's answer and stated, "The discovery process is not a game of 'hide the ball.' " State v. Neujahr, 248 Neb. 965, 976, 540 N.W.2d 566, 574 (1995). The Supreme Court also noted, assuming without deciding that the State was required to disclose Neujahr's oral stateme......
-
State v. Quintana
...Neb. 187, 560 N.W.2d 829 (1997), disapproved on other grounds, State v. Myers, 258 Neb. 300, 603 N.W.2d 378 (1999); State v. Neujahr, 248 Neb. 965, 540 N.W.2d 566 (1995). We conclude that Quintana's assignment of error that the trial court erred in failing to properly instruct the jury rega......
-
State v. Lotter
...violation itself. Thus, although Kula clearly indicates that belated disclosure may violate § 29-1912, see, also, State v. Neujahr, 248 Neb. 965, 540 N.W.2d 566 (1995), it also indicates that in some circumstances, the prejudice caused by such a disclosure may be remedied by a properly gran......
-
State v. Gutierrez
...reply to questions from the jury regarding the applicable law is entrusted to the discretion of the trial court. See State v. Neujahr, 248 Neb. 965, 540 N.W.2d 566 (1995). (c) Both of the defendants assign error to the district court's supplemental instructions. Gutierrez argues, first, tha......