State v. Perez, 89-781

• Decision Date: 13 July 1990
• Docket Number: No. 89-781,89-781
• Parties: STATE of Nebraska, Appellee, v. Roy PEREZ, Appellant.
• Court: Nebraska Supreme Court

Page 448

457 N.W.2d 448

235 Neb. 796

STATE of Nebraska, Appellee, v. Roy PEREZ, Appellant.

No. 89-781.

Supreme Court of Nebraska.

July 13, 1990.

Syllabus by the Court

1. Criminal Law: Pleas. A criminal defendant has no absolute right to have his or her plea of guilty or nolo contendere accepted even if the plea is voluntarily and intelligently made.

2. Pleas: Appeal and Error. The trial court is afforded discretion in deciding whether to accept guilty pleas, and the Supreme Court on appeal will reverse the trial court's determination only in case of an abuse of discretion.

3. Pleas: Appeal and Error. In determining whether there was an abuse of discretion in the refusal of a trial court to accept or reject a plea, it is necessary to determine if the defendant suffered any prejudice.

4. Motions for Continuance: Appeal and Error. Generally, the denial of a motion for a continuance is a matter for the discretion of the trial court, whose ruling will be upheld absent an abuse of discretion.

5. Motions for Continuance: Witnesses: Evidence: Appeal and Error. Generally, in order to find an abuse of discretion in denying a motion for a continuance in order to locate witnesses, it is necessary that the defendant make a showing as to what evidence would be procured by calling such witnesses.

6. Criminal Law: Motions for Continuance: Appeal and Error. Where a criminal defendant's motion for continuance is based upon the occurrence or nonoccurrence of events within the defendant's own control, denial of such motion generally is not abuse of discretion.

7. Motions for Continuance: Appeal and Error. There is no abuse of discretion by the court in denying a request for a continuance unless it clearly appears that the defendant suffered prejudice as a result of that denial.

8. Juries: Discrimination: Proof. In order to establish a prima facie violation of the fair cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a "distinctive" group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury selection process.

9. Juries: Discrimination: Equal Protection: Proof. In order to prove discriminatory selection of a venire under the equal protection clause, a defendant must prove the existence of purposeful discrimination.

10. Juries: Discrimination: Proof. A defendant may seek to prove purposeful discrimination by proof of disproportionate impact.

11. Juries: Discrimination: Proof. Disproportionate impact may be demonstrated either by showing that defendant's cognizable racial group has not been summoned for jury service over an extended period of time or that this group is substantially underrepresented in his or her venire and that the venire was chosen under a practice providing the opportunity for discrimination.

12. Sentences: Appeal and Error. A sentence imposed within statutorily prescribed limits will not be disturbed on appeal absent an abuse of discretion.

13. Criminal Law: Directed Verdict. In a criminal case a court can direct a verdict only where there is a complete failure of evidence to establish an essential element of the crime charged, or evidence is so doubtful in character, lacking probative value, that a finding of guilt based on such evidence cannot be sustained.

14. Motions for New Trial: Appeal and Error. A motion for a new trial is addressed to the discretion of the trial court, and unless an abuse of discretion is shown, its determination will not be disturbed.

15. Motions for New Trial: Evidence: Proof. A defendant who has filed a motion for new trial on the ground of newly discovered evidence has the burden to show that the alleged newly discovered evidence is of such a substantial nature that if it had been received in the original trial, it would have changed the result.

16. Evidence: Words and Phrases. Generally, "newly discovered evidence" is evidence material to the defense that could not with reasonable diligence have been discovered and produced at trial.

Charles F. Fitzke, Scotts Bluff County Public Defender, and Robert L. Wolf, Omaha, 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.

HASTINGS, Chief Justice.

Defendant, Roy Perez, appeals from jury convictions of two counts of delivering or distributing a controlled substance, cocaine, in violation of Neb.Rev.Stat. § 28-416 (Cum.Supp.1988). He was sentenced to two terms of 3 to 6 years' imprisonment, to be served consecutively. Defendant alleges as error that the trial court erroneously refused to accept defendant's plea of guilty offered pursuant to a plea bargain, that the trial court erroneously refused to grant a continuance or postponement of his trial, that the trial court erred in allowing the trial to proceed when the jury did not appropriately reflect the inclusion of persons of Hispanic descent, that the trial court imposed an excessive sentence, that the trial court erred in refusing to sustain his motion for a directed verdict, and that the trial court erred in overruling defendant's motion for a new trial on the ground of newly discovered evidence because defendant was not permitted to allow the tape-recorded evidence of defendant's alleged admissions made during the drug sales to be examined by expert witnesses to determine whether such evidence had been altered or otherwise tampered with.

A two-count information was filed on December 1, 1988, charging defendant with violations of § 28-416, delivery or distribution of cocaine. On December 5, 1988, an arraignment was held, at which time defendant stood mute as to both of these charges, as well as to another charge of possession of cocaine. The court entered pleas of not guilty on behalf of the defendant.

After a January 18, 1989, hearing, the trial court granted defendant's motion for a continuance and set a trial date of May 15, 1989.

The defendant was represented at all times by the public defender. A plea bargain was negotiated wherein the defendant would plead guilty to count I, in exchange for which the State would dismiss count II and the charge of possession of cocaine.

At a plea hearing on April 18, 1989, after the defendant tendered a plea of guilty, the court specifically and completely explained to the defendant all of his rights and the rights he would waive by pleading guilty.

When asked by the court whether he was satisfied with the manner in which his lawyer had negotiated the plea bargain, he answered, "No." The record shows that the defendant was dissatisfied because his counsel "was under a heavy load and he had no time to talk about the case or anything," and defendant also complained about the manner in which his attorney conducted a deposition of the principal witness against the defendant, i.e., he did not tell defendant he could have asked his lawyer to ask certain questions.

By his own admission the dissatisfaction with his lawyer constituted part of the reason for defendant's decision to plead guilty, and the evidence had nothing to do with that decision. On this basis the trial court refused to accept defendant's guilty plea, whereupon the State immediately withdrew the offered plea bargain.

On May 3, 1989, defendant filed a motion for continuance of the May 15 trial date for the reason that defendant had planned to plead guilty, but when the court refused to accept the plea it became too late for the defendant or his counsel to locate, contact, and subpoena witnesses. A hearing was held on that motion on May 8, 1989. The court inquired of the defendant and counsel as to the names and addresses of the witnesses they proposed to find and what would be the subject matter of their testimony. The defendant was extremely vague, stating that he did not know their last names, did not know the answers they would give to questions, and in some instances knew only their nicknames. As near as could be determined, the witnesses would either testify as to defendant's good character or some of them allegedly would testify as to the character of the State's witness who made the buys from defendant, relating to his having worked for other state agencies setting up persons on "drug busts." The motion was denied on the theory that defendant had had almost 6 months to prepare for trial.

The principal witness against the defendant was one Charles Hieatt, a cooperating individual who made the two buys from the defendant, for which he was paid a fee by the police. The witness had been wired with a transmitter and microphone, which were used by the police to monitor the buys.

Three law enforcement officers testified as to their contacts with Hieatt, how he had been searched before being allowed to meet the defendant to make the buys, how he was kept under observation at all times, and how they immediately took the purchased drugs from him after the buys. They not only testified as to their observations of the defendant as he went to and from the place of the delivery, but also testified in part to the voices they heard from the transmitter on the witness. A chemist for the State Patrol testified that he identified the substances obtained during the buys as cocaine.

During the course of the trial it was brought out that Hieatt had been a drug user, had been arrested and convicted of felonies, and had worked for one or more other law enforcement agencies making buys. Defendant was also permitted to call several character witnesses in spite of the fact that he had neglected to list them as witnesses within the time provided by the trial court.

Defendant was convicted of both counts of distribution and was sentenced to consecutive terms of imprisonment...