State v. Olsan

• Decision Date: 17 February 1989
• Docket Number: No. 88-210,88-210
• Citation: 231 Neb. 214,436 N.W.2d 128
• Parties: STATE of Nebraska, Appellee, v. John M. OLSAN, Appellant.
• Court: Nebraska Supreme Court

Page 128

436 N.W.2d 128

231 Neb. 214

STATE of Nebraska, Appellee, v. John M. OLSAN, Appellant.

No. 88-210.

Supreme Court of Nebraska.

Feb. 17, 1989.

Syllabus by the Court

1. Lesser-Included Offenses: Words and Phrases. A lesser-included offense is one which is necessarily established by proof of the greater offense. To be a lesser-included offense, the elements of the lesser offense must be such that it is impossible to commit the greater offense without simultaneously committing the lesser offense.

2. Constitutional Law: Double Jeopardy. The constitutional prohibition against double jeopardy not only protects against a second prosecution for the same offense after acquittal or conviction, but also protects against multiple punishments for the same offense.

3. Lesser-Included Offenses: Convictions. When a defendant is convicted of both a greater and lesser-included offense, the conviction and sentence on the lesser charge must be vacated.

4. Constitutional Law: Criminal Law. If, in one transaction, a defendant commits crimes against separate individuals, the defendant may be constitutionally charged with and convicted of the separate offenses against each of the victims.

5. Trial: Evidence: Appeal and Error. Admission or exclusion of evidence is a matter for the discretion of the trial court, whose ruling on an evidential question will be upheld unless such ruling constitutes an abuse of discretion.

6. Prosecuting Attorneys: Trial. Public prosecutors are charged with the duty of conducting criminal trials in such a manner that the accused may have a fair and impartial trial.

7. Criminal Law: Trial: Evidence: Appeal and Error. In a jury trial of a criminal case, whether an error in admitting or excluding evidence reaches a constitutional dimension or not, an erroneous evidential ruling results in prejudice to a defendant unless the State demonstrates that the error was harmless beyond a reasonable doubt.

8. Criminal Law: Trial: Juries: Appeal and Error. If there is some incorrect conduct in a jury trial which, on a review of the entire record, did not materially influence the jury in its verdict adverse to a substantial right of the appellant, the error is harmless.

9. Rules of Evidence: Impeachment: Prior Convictions: Time. For proper impeachment based on Neb.Evid.R. 609 (Neb.Rev.Stat. § 27-609 (Reissue 1985)), although the State may elicit information concerning the number of a defendant's convictions within the last 10 years, the State is prohibited from naming or identifying the crime underlying the defendant's conviction and from inquiring into or referring to details surrounding the crime or conviction.

10. Rules of Evidence: Impeachment: Prior Convictions: Time. Neb.Evid.R. 609(2) contains a time restriction for the admissibility of a conviction to impeach a witness, namely, a conviction characterized in Neb.Evid.R. 609(1) is inadmissible for impeachment of a witness' credibility if more than 10 years have elapsed since the date of the witness' conviction or since the date on which the witness was released from confinement on account of the conviction, whichever is later.

11. Rules of Evidence: Impeachment: Prior Convictions: Time. In Neb.Evid.R. 609(2), the 10-year restriction for admissibility of a prior conviction is recognition that temporal remoteness nullifies the probative value of a conviction to be used for impeachment. Neb.Evid.R. 609(2) is a policy pronouncement that a conviction older than 10 years lacks probative value concerning a witness' tendency toward truth and veracity and, therefore, is irrelevant to impeach a witness' credibility.

12. Rules of Evidence: Pretrial Procedure. As required by Neb.Evid.R. 104(3) (Neb.Rev.Stat. § 27-104(3) (Reissue 1985)), a hearing on preliminary matters concerning admissibility of evidence shall be conducted when the interests of justice require, or when a defendant is a witness, if the defendant so requests.

13. Rules of Evidence: Prior Convictions: Impeachment: Pretrial Procedure. Whether a defendant's prior conviction is admissible for the defendant's impeachment pursuant to Neb.Evid.R. 609 is a preliminary question of admissibility to be determined in accordance with Neb.Evid.R. 104(3).

James C. Stecker, Columbus, for appellant.

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

BOSLAUGH, CAPORALE, SHANAHAN, and GRANT, JJ., and CARLSON, District Judge.

SHANAHAN, Justice.

In the district court for Platte County, a jury found John M. Olsan guilty of four felonies--robbery, conspiracy to commit robbery, first degree false imprisonment, and use of a firearm in the commission of a felony (robbery). The district court sentenced Olsan to terms of imprisonment for the convictions. Olsan claims that reversible error exists (1) as the result of insufficient evidence to sustain the verdicts; (2) in allowing Olsan to be found guilty on the charges of robbery and false imprisonment in violation of the double jeopardy clauses of the U.S. and Nebraska Constitutions; (3) in permitting the prosecution, on cross-examination of Olsan, to adduce certain inadmissible evidence concerning Olsan's prior felony convictions for the purpose of impeachment; and (4) by imposition of excessive sentences.

The site of the robbery was Amigo's restaurant, which also provided a fast-food service. On the evening of October 1, 1987, Stacey Torczon and Matthew Wagoner were working at Amigo's. Torczon took customer orders at a counter and operated the cash register, while Wagoner, manager of the restaurant responsible for supervision of Amigo's employees, was working in the kitchen as a cook. Around 11:35 p.m., a man entered Amigo's, approached Torczon at the area of the counter and cash register, and mulled over the menu until he selected a large order of "Mexi-fries." The male customer was wearing jeans and a tank top or "muscle tee shirt." While the customer's order was being prepared, the man asked Torczon whether she had a boyfriend or husband and what she would be doing after work. Torczon felt that the customer exhibited "overfriendliness." As she was picking up the customer's order of Mexi-fries, Torczon remarked to Wagoner: "I think this guy's really drunk, he's really weird, he's asking a lot of weird questions." From the kitchen, approximately 20 feet from the cash register, Wagoner glanced at the customer and briefly established eye contact with him. After staying in Amigo's for about 5 minutes, the man left the restaurant.

Michael McMillan entered Amigo's near 11:45 p.m. and ordered a burrito. Consequently, only Torczon, Wagoner, and McMillan were in Amigo's when a male and female entered the restaurant. Both entrants wore a nylon stocking over their heads, preventing observation of many facial features on the entrants. What those in Amigo's did observe was the female entrant brandishing a shotgun, while the male carried a .22-caliber revolver in his hand. According to Wagoner, the gunman ordered: "Don't move, put your hands up." As the female with the shotgun went into the kitchen where Wagoner was located, the male went to Torczon at the cash register, pointed the revolver at her head, and demanded of the terrified Torczon: "Give me all the money." Gun in hand, the male robber grabbed the currency which Torczon had removed from the restaurant cash register in response to the holdup man's demand. As the shotgun-toting woman emerged from the kitchen, she told Torczon, Wagoner, and McMillan to lie on the floor. Recalling the clothing and some of the physical features observed when the previous male customer had ordered Mexi-fries a few minutes earlier, both Torczon and Wagoner at that time recognized the gunman as the previous customer who had ordered Mexi-fries. Nothing indicated that either of the robbers had drunk alcohol. As the holdup pair were leaving Amigo's, the male yelled to those on the restaurant floor: "Don't move for five minutes."

Police were unable to recover the nylon stockings which covered the robbers' faces, or the guns used for the robbery. There were no fingerprints obtained at Amigo's to identify the robbers. No physical evidence linked Olsan to the robbery. However, from a photo array shown to them 4 to 5 days after the robbery, both Torczon and Wagoner identified Olsan as the robber.

At trial, Torczon and Wagoner testified that the male robber was wearing clothing identical to Olsan's when Olsan ordered Mexi-fries just minutes before the robbery. Another Amigo's customer in the restaurant just before the robbery, a Jeff Heesacker, one of Olsan's neighbors and apparently a longtime acquaintance, recognized Olsan as the man who had ordered the Mexi-fries and talked to Torczon. Heesacker noticed that Olsan appeared to be drunk and staggered in the restaurant. Shortly after Olsan left Amigo's, Heesacker also left the restaurant. McMillan, the Amigo's customer at the time of the robbery, testified that he looked closely at the perpetrator's stocking-covered face during the robbery and later identified Olsan as the gunman-robber.

On direct examination during his case in chief, Olsan recounted an evening of drinking beer and tequila at bars on October 1, the night of the robbery. When Olsan and his cronies concluded their drinking around 11:30 p.m., Olsan went to Amigo's, got an order of Mexi-fries, and awaited a ride from his friends. With his friends, Olsan rode a short distance from Amigo's to a bar, where he was seen by two individuals who testified they saw Olsan at the bar around 11:50 p.m. on the night of the robbery. An employee of the bar testified that Olsan slurred his speech ("I couldn't understand him"), staggered inside the bar, and was intoxicated. After Olsan left the bar, he went to a room and fell asleep. Olsan denied involvement in the events which occurred at Amigo's.

Up to this point in the trial, there had been no reference to Olsan's criminal record. Nevertheless, during cross- of...