State v. Oldfield

• Decision Date: 26 October 1990
• Docket Number: No. 89-842,89-842
• Citation: 461 N.W.2d 554,236 Neb. 433
• Court: Nebraska Supreme Court
• Parties: STATE of Nebraska, Appellee, v. James OLDFIELD, Appellant.

Page 554

461 N.W.2d 554

236 Neb. 433

STATE of Nebraska, Appellee, v. James OLDFIELD, Appellant.

No. 89-842.

Supreme Court of Nebraska.

Oct. 26, 1990.

Syllabus by the Court

1. Constitutional Law: Speedy Trial. The constitutional right to a speedy trial is distinct from the provision for a speedy trial prescribed by the Nebraska speedy trial act, Neb.Rev.Stat. §§ 29-1207 to 29-1209 (Reissue 1989).

2. Trial: Appeal and Error. In the absence of plain error, when an issue is raised for the first time in an appellate court, the issue will be disregarded inasmuch as a trial court cannot commit error regarding an issue never presented and submitted for disposition in the trial court.

3. Constitutional Law: Appeal and Error. Generally, a constitutional question not properly raised in the trial court will not be considered on appeal.

4. Speedy Trial: Proof. To avoid a defendant's absolute discharge from an offense charged, as dictated by Neb.Rev.Stat. § 29-1208 (Reissue 1989), the State, by a preponderance of evidence, must prove existence of a period of time which is authorized by Neb.Rev.Stat. § 29-1207(4) (Reissue 1989) to be excluded in computing the time for commencement of the defendant's trial.

5. Speedy Trial. Under Neb.Rev.Stat. § 29-1207(4)(a) (Reissue 1989), a defendant must accept reasonable delay as a consequence of the defendant's pretrial motion.

6. Speedy Trial. Excludable time under Neb.Rev.Stat. § 29-1207(4)(a) (Reissue 1989) is calculated by adding the excluded days to the last day of the 6-month period initially determined for § 29-1207(2).

7. Speedy Trial. An excludable period under Neb.Rev.Stat. § 29-1207(4)(a) (Reissue 1989) commences on the day immediately after the filing of a defendant's pretrial motion.

8. Convictions: Appeal and Error. In determining whether evidence is sufficient to sustain a conviction in a bench trial, the Supreme Court does not resolve conflicts of evidence, pass on credibility of witnesses, evaluate explanations, or reweigh evidence presented, which are within a fact finder's province for disposition. A conviction in a bench trial of a criminal case is sustained if the evidence, viewed and construed most favorably to the State, is sufficient to support that conviction.

9. Criminal Law: Appeal and Error. In a bench trial of a criminal case, the trial court's findings have the effect of a verdict and will not be set aside unless clearly erroneous.

10. Convictions: Circumstantial Evidence: Proof. A defendant may be convicted by circumstantial evidence which establishes the defendant's guilt beyond a reasonable doubt. The State is required to establish the defendant's guilt for the crime charged, but is not required to disprove every hypothesis consistent with the defendant's presumed innocence.

Kirk E. Naylor, Jr., Lincoln, for appellant.

Robert M. Spire, Atty. Gen., and Kenneth W. Payne, Alliance, for appellee.

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

SHANAHAN, Justice.

In the district court for Seward County, as the result of a bench trial after waiver of a jury, James Oldfield was convicted of three felonies charged in the information, namely, count I, possession of cocaine, see Neb.Rev.Stat. § 28-416(3) (Cum.Supp.1988); count II, carrying a concealed weapon, see Neb.Rev.Stat. § 28-1202 (Reissue 1989); and count III, possession with intent to distribute, deliver, or dispense methamphetamine, a controlled substance see § 28-416(1)(a). The district court sentenced Oldfield to concurrent terms of imprisonment for the convictions.

Oldfield has appealed and claims that the trial court erred in (1) failing to dismiss the charges against Oldfield, since his "constitutional and statutory right to a speedy trial" was violated, and (2) finding the evidence sufficient to convict Oldfield on count III, possession of methamphetamine with intent to distribute, deliver, or dispense that controlled substance.

We affirm the district court's judgment.

Based on information supplied to a dispatcher for the Nebraska State Patrol, Trooper Robert Roberts was directed on February 8, 1988, to an area on U.S. Highway 6 near Milford, Nebraska, to locate a dark-colored automobile which had a broken windshield and bore Kansas vehicle plates. Sources had reported that the vehicle in question was being driven erratically and was weaving from shoulder to shoulder on the highway. When Roberts saw a vehicle which matched the description from the dispatcher and which was parked on the shoulder of Highway 6, he stopped his patrol car, got out, approached the other car, and eventually requested and obtained the occupant's license to operate a motor vehicle. From the information on the license, Roberts learned that the driver's name was James Oldfield, and returned to his patrol car to radio for any additional information on Oldfield.

Investigator Raymond Smee, an undercover Nebraska State Patrol drug investigator for 5 years, was monitoring the radio transmission from Roberts' patrol car and recognized Oldfield's name. By radio, Smee informed Roberts that Oldfield was a known drug user. When he returned to Oldfield's car and the left front or driver's door was opened, Roberts immediately observed a hypodermic syringe on the car's floor between the front seat and the driver's door.

About that time, Smee arrived at the scene and informed Roberts that he knew Oldfield as a result of undercover investigations, and knew that Oldfield was a drug user who administered amphetamines and cocaine with syringes. Roberts and Smee then removed Oldfield from his vehicle as two other officers arrived at the scene. One of these officers observed an expended .45-caliber shell on the front floorboard at the passenger's side of Oldfield's car and also saw several bullet holes in the car's windshield. On account of these observations, Roberts "patted down" Oldfield to determine if he was armed and found that Oldfield was wearing an empty shoulder holster. Roberts then searched the driver's side of Oldfield's car for the presence of weapons and found a loaded .45-caliber semiautomatic pistol wedged behind the vehicle's center console. Oldfield was arrested for carrying a concealed weapon.

Oldfield's vehicle was towed to and impounded at the Seward County Jail, where Roberts and Smee later undertook an inventory of the car's contents. During the inventory the officers found three more hypodermic syringes; a pair of hemostats; two pipes which, according to Roberts' later testimony, were commonly used for smoking marijuana; a spoon; a gun case which held a bottle of clear liquid, razor blades, and Q-tips; and a locked plastic box. The spoon and two of the syringes contained cocaine residue, according to a laboratory analysis performed after the inventory.

On February 9, 1988, pursuant to a search warrant, the officers opened the locked box found in Oldfield's car and discovered a grinding kit consisting of a small scale, a grinder, screens, a funnel, two vials, metal scoops, and two plastic bags containing a white-yellow powder. Through a chemical analysis of the two bags of powder, the bags' contents were identified as 22.46 grams of methamphetamine.

On April 18, 1988, the State filed its information and charged Oldfield with the three felonies heretofore mentioned. A jury trial was set for August 22. Oldfield filed a motion on August 8 to suppress the physical evidence obtained from his automobile. After Oldfield's suppression motion had been scheduled for hearing on August 26, the State requested, and received a postponement until October 11 because Smee, the undercover officer, was unavailable for the suppression hearing. At the October 11 hearing on the suppression motion, the State presented evidence reflecting the events recounted above concerning Roberts' contact with Oldfield and his automobile. At the conclusion of evidence in the suppression hearing, the court took Oldfield's motion under advisement until January 10, 1989, when the court overruled the suppression motion and scheduled Oldfield's case for a jury trial to commence on March 13. On March 2, however, pursuant to Oldfield's waiver of a jury trial, the court notified counsel that the bench trial in Oldfield's case would commence on March 22.

On March 20, the State filed a motion to endorse its information with the name of Trooper Larry Wollenburg, who was instrumental in obtaining the search warrant for Oldfield's automobile. In his objection filed on March 22, the date set for trial, Oldfield resisted the endorsement of Wollenburg's name on the information and, through his lawyer, requested that "this matter be continued." Also on March 22, Oldfield filed his separate "Motion to Dismiss," claiming that he was entitled to an "Order dismissing this matter, for the reason that the Defendant is entitled to a total discharge of the offense charged in accordance with Neb.Rev.Stat. 29-1208 for the reason that the Defendant has not been brought to trial within six months from the filing of the information." That same day, March 22, the court overruled Oldfield's objection to the State's endorsement of Wollenburg's name on the information and continued the proceedings until March 28, the date for Oldfield's bench trial. When Oldfield appeared with his lawyer for the trial on March 28, a pretrial discussion involved the possibility of Oldfield's waiving his motion for dismissal if he proceeded to trial without the court's ruling on the motion. However, after the court concluded and ruled that there was "no waiver on behalf of the defendant of his statutory right to a six-month trial," the bench trial commenced. At the conclusion of evidence in Oldfield's trial, the court took the matter under advisement pending disposition of Oldfield's dismissal motion based on deprivation of the statutory right to a speedy trial. The court held a hearing on April 17 concerning the speedy trial motion,...