State v. Packett

• Decision Date: 24 June 1980
• Docket Number: No. 42857,42857
• Citation: 294 N.W.2d 605,206 Neb. 548
• Parties: STATE of Nebraska, Appellee, v. Larry E. PACKETT, Appellant.
• Court: Nebraska Supreme Court

Page 605

294 N.W.2d 605

206 Neb. 548

STATE of Nebraska, Appellee, v. Larry E. PACKETT, Appellant.

No. 42857.

Supreme Court of Nebraska.

June 24, 1980.

Syllabus by the Court

1. Attorney Misconduct. It is generally improper for counsel, during the pendency of a proceeding, to communicate ex parte with the judge as to the merits of the case.

2. Criminal Appeals: Prejudicial Error: Appeal and Error. In a prosecution for a crime, the only errors which require reversal of a cause are those prejudicial to the rights of the accused, or which constitute the denial of a substantial legal right.

3. Evidence: Impeachment: Prior Inconsistent Statements. If a witness, not a party, admits making earlier statements contradictory of testimony given at trial, then the earlier statements are not admissible for purpose of impeachment.

4. Evidence: Impeachment: Prior Inconsistent Statements. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate him thereon, or the interests of justice otherwise require.

5. Evidence: Prior Consistent Statements. Prior consistent statements of a witness are not admissible as corroborative evidence except to rebut an express or implied charge against him of recent fabrication or improper influence or motive.

6. Assault. To constitute the offense of assault with intent to do great bodily harm, there must be an unlawful assault coupled with a present ability and intent to injure, but no actual battery need occur.

7. Reopening Case. A motion to reopen a criminal case to allow introduction of further evidence is addressed to the sound discretion of the trial court.

8. Sentences. A sentence imposed within statutory limits will not be disturbed on appeal unless there has been an abuse of discretion.

Toney J. Redman, Lincoln, for appellant.

Paul L. Douglas, Atty. Gen., and Lynne Rae Fritz, Asst. Atty. Gen., Lincoln, for appellee.

Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE, and HASTINGS, JJ.

CLINTON, Justice.

The defendant was charged in the District Court for York County, Nebraska, with having, on August 8, 1978, assaulted Janice Prater with intent to inflict great bodily injury, with having kidnapped her, and with the use of a firearm in the commission of a felony, all in violation of Neb.Rev.Stat. §§ 28-413, 28-417, and 28-1011.21 (Reissue 1975), respectively. He was found guilty by a jury and sentenced to consecutive terms of 16 to 40 years on the kidnapping charge, 6 to 18 years on the assault charge, and 3 to 10 years on the firearm count.

He has appealed to this court and assigned and argued the following alleged errors: (1) He was deprived of a fair trial because of out-of-court conversations concerning the trial between the prosecutor and the trial judge without defense counsel being present; (2) The court erroneously excluded testimony and evidence offered to impeach a prosecuting witness; (3) The evidence was insufficient to support the conviction on the assault charge because there was a lack of evidence of intent to inflict great bodily harm upon the victim; (4) The court erred in not granting a new trial on the basis of newly-discovered evidence, to wit, an unsigned, undated, typewritten letter received by defense counsel and addressed to a district judge (not the judge who presided at trial) in which various accusations were made concerning improper conduct by police officers and the prosecutor prior to trial; (5) Refusal of the court to admit surrebuttal testimony by the defendant; and (6) Excessiveness of the sentences. We affirm.

A brief outline of the State's evidence and that of the defendant will give a perspective from which to consider the assignments. Further details as necessary will be recited as each assignment is discussed. At 12:05 p. m., on August 8, 1978, Janice Prater was walking home to lunch from her place of employment in the city of York. As she walked, a male, driving a pickup truck, stopped at the curb near her and asked directions. Janice, a relatively new resident of York, suggested he ask for information at a nearby gas station. As she started to walk away, the man pulled a gun, got out of the vehicle, ordered her to get into the truck, and threatened to shoot her if she did not. She complied. As he drove, he kept the gun, which he had on his lap, pointed toward her. When the truck neared the York airport, traveling at a speed of about 40 miles per hour, Janice opened the door and jumped out, fell to the ground, and then ran to the vehicle of a motorist who had stopped at an intersection and who had observed her jump from the truck. The matter was immediately reported to the police. Janice gave them a description of the man from which a composite drawing of the abductor was made. This, together with other evidence, particularly a description of the truck, led to the arrest of the defendant. Janice positively identified the defendant in a lineup of five men fitting the same general description.

The defendant denied that he was the perpetrator and presented an alibi defense. This was, to some extent, corroborated by the testimony of Dick Christian, the witness whose testimony relates to the assignment of error with reference to impeachment.

We now consider the assignments in the order in which they were listed. During the course of the trial, the prosecutor made a telephone call to the trial judge without knowledge or presence of defense counsel one evening after adjournment. The next morning, before the presentation of testimony commenced, the trial judge, in open court, indicated his concern about the call and read a disclosure into the record. The substance of the disclosure was that, after adjournment, the prosecutor appeared ex parte before the court, made complaints as to the extent of cross-examination being allowed the defendant, and argued in favor of more restrictive cross-examination. This process was repeated later in the evening by telephone. The prosecutor responded that the reason for his protest was that prolonged cross-examination permitted the defense made it difficult and burdensome to schedule the appearance of prosecution witnesses and was a burden to the witnesses, some of whom had to come from long distances or leave their employment. The prosecutor also declared that he had expressed to the judge a concern about a defense proposal to call an expert on hypnosis without disclosing his schedule, which might not give the State appropriate time to respond. The court gave its opinion that nothing discussed provided grounds for a mistrial.

It is generally improper for counsel, during the pendency of a proceeding, to communicate with the judge as to the merits of the case. Code of Professional Responsibility, DR 7-110. It would appear that objections to, arguments about, or evidence affecting the limits of cross-examination ought to be made only in the presence of, or after appropriate notice to, opposing counsel. In this case, however, there is nothing in the record from which it may be reasonably inferred that prejudice resulted to the defendant. The record does not show that the defense was subsequently improperly restricted in either its direct or cross-examination. The only errors which require reversal of a cause are those prejudicial to the right of the accused, or which constitute the denial of a substantial legal right. State v. Atkinson, 190 Neb. 473, 209 N.W.2d 154 (1973).

The defendant testified that at the time the crimes in question were committed, he was at Christian's service station at Beaver Crossing, Nebraska. This village is about 25 miles from the city of York. The defendant testified that he arrived at the station at about 9:45 a. m. and that he was at the station until at least 12:30 p. m. because it took that long to charge some tractor batteries he had brought to the station. To corroborate the alibi, he called the witness Dick Christian, the operator of the station. Christian testified that he did not know defendant well, but that he had seen him 6 to 10 times over a period of about 6 months. He further testified that defendant was at his station on August 8, 1978. His testimony was substantiated by a station ticket in Christian's handwriting dated "8-8 1978," showing a charge to Larry Packett for 12 gallons of gasoline. The ticket also bore the signature of Larry Packett. This ticket was the means by which Christian was able to recall and verify that the defendant was at the station on the day in question. The witness also remembered that, on that day, he "threw a charge" into some batteries for the defendant for which he made no charge. He was asked these questions and gave these answers:

Q. And then, in any event, the day that you took that ticket, he was there until 12 or 12:30, did you say?

A. That's what I said on that tape.

Q. Okay, we'll get to that in just a minute. I apologize, I didn't mean to say that. But your memory at one time was that you visited with him for a long time, being there from 12 or 12:30?

A. Right.

Q. Do you remember that time that you visited with him for so long, what time he got there?

A. No. Having been questioned so many times about this, now they have got me to where I just can't stand on my word and say I remember precisely because there's too much traffic in our place of business and I

Also introduced was a check signed by Larry Packett, dated August 10, 1978, payable to Christian Service, in the amount of $12. On the memo portion of this check was printed by hand: "Gas & Tom's Battery." Christian acknowledged having received that check sometime after August 8. The prior tape recording referred to in Christian's answer above was offered in evidence by the defendant, was objected to as hearsay, and the objection was sustained. The tape was received as an offer...