State v. Rowland
| Decision Date | 23 March 1990 |
| Docket Number | No. 89-483,89-483 |
| Citation | 234 Neb. 846,452 N.W.2d 758 |
| Parties | STATE of Nebraska, Appellee, v. Jesse W. ROWLAND, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Rules of Evidence. Evidence is probative if it tends in any degree to alter the probability of a material fact.
2. Rules of Evidence. Under Neb.Rev.Stat. § 27-403 (Reissue 1989) relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.
3. Trial: Evidence: Appeal and Error. It is within the trial court's discretion to admit or exclude relevant evidence, and such rulings will be upheld on appeal absent an abuse of discretion.
4. Convictions: Appeal and Error. A conviction will not be set aside in the absence of a showing that an error prejudiced the defendant.
5. Constitutional Law: Miranda Rights. The right to remain silent, unlike the right to counsel, attaches before the institution of formal adversary proceedings.
6. Constitutional Law: Trial. There is a constitutional right to say nothing at all about the State's allegations, and, thus, the State may not, during its case in chief, comment upon an accused's refusal to answer a law enforcement officer's questions.
7. Criminal Law: Trial: Evidence: Appeal and Error. An error in admitting or excluding evidence in a criminal trial, whether of constitutional magnitude or otherwise, is prejudicial unless it can be said that the error was harmless beyond a reasonable doubt.
8. Trial: Evidence: Convictions: Appeal and Error. The improper admission of evidence constitutes harmless error where the evidence is cumulative and there is other competent evidence to support the conviction.
9. Verdicts: Appeal and Error. A verdict must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support it.
10. Motions for New Trial: Appeal and Error. A motion for a new trial is addressed to the discretion of the trial court, and absent an abuse of discretion, the trial court's ruling will be upheld on appeal.
11. Appeal and Error. Generally, assigned errors not discussed in an appellant's brief are not considered by the Nebraska Supreme Court.
12. Sentences: Appeal and Error. A sentence imposed within the statutorily prescribed limits will not be disturbed on appeal absent an abuse of discretion.
Dennis R. Keefe, Lancaster County Public Defender, and Robert G. Hays, Lincoln, for appellant.
Robert M. Spire, Atty. Gen., and Denise E. Frost, for appellee.
Pursuant to verdict, defendant, Jesse W. Rowland, was adjudged guilty of driving while his operator's license had been revoked under the provisions of Neb.Rev.Stat. § 39-669.07(c) (Supp.1987), and was thus, for a period of 15 years, not privileged "to drive any motor vehicle in the State of Nebraska for any purpose...." He was subsequently sentenced to imprisonment for a period of not less than 20 months nor more than 5 years. Rowland asserts, in summary, that the trial court erred in (1) receiving certain evidence, (2) refusing to strike certain other evidence, (3) overruling his motion for new trial, and (4) imposing an excessive sentence. We affirm.
At approximately 9:28 p.m. on April 4, 1988, Lancaster County Deputy Sheriff William Jarrett observed a pickup truck parked within the northbound lane of North 98th Street near Lincoln. The truck displayed no headlights and apparently displayed no taillights. Jarrett parked his sheriff's cruiser directly in front of and facing the parked truck. After radioing his location and a description of the truck to the police dispatcher, Jarrett left his cruiser and walked to the truck, where he found Rowland asleep inside and where he noticed two beer cans in the vehicle, one of which was half full. After summoning a backup unit to the scene, Jarrett woke Rowland and asked to see his operator's license and a registration for the truck. Jarrett thereupon noticed the odor of alcohol coming from Rowland, and it appeared to Jarrett that Rowland had bloodshot eyes and "somewhat of a slurred speech."
Rowland got out of the truck and displayed his operator's license. He did not have a registration for the truck but did produce a title to the vehicle, which indicated that it had been owned by Shannon Havel. Havel had apparently signed the title to transfer the vehicle to another owner, but the name of the transferee was not specified on the title.
Jarrett testified that when he asked why Rowland was parked in the road, Rowland replied that he had run out of gas and that Havel "had left ... walking to go get gas and she had not returned." Jarrett then asked Rowland if he had been operating the truck. When asked by the prosecuting attorney if Rowland responded to that question, Jarrett testified: Jarrett explained:
I had gone over the driver's license and had specifically asked whether or not Mr. Rowland was operating the vehicle. Whenever I would do so, then he would again advise that Sharon [sic] Havel was with him and that he had run out of gas and that she had left. He never would specifically answer yes or no to whether or not he was driving the vehicle.
After asking Rowland why he was parked in the road and whether he had been operating the truck, Jarrett left another deputy to stand with Rowland by the vehicle, and radioed for background information with respect to Rowland and the truck in which he was found. Jarrett learned that Rowland's operator's license had been revoked as aforesaid. Jarrett then placed Rowland under arrest for driving during a period when his license had been revoked.
After he had arrested Rowland and placed him in the sheriff's cruiser, Jarrett surveyed the area, looking for footprints around the truck in an effort to corroborate Rowland's statement that Havel had been with him and had left the vehicle to get gasoline. Although the gravel road on which the truck was parked was "somewhat muddy," Jarrett found no footprints leading away from the truck other than those of Rowland and the arresting officers.
According to Havel's testimony, Rowland had been at her house at around 6:30 or 7 p.m. on the night he was arrested. He arrived at her house alone in the truck, and a short time later he left alone in the same vehicle. Havel further testified that she had not, on the night in question, left the vehicle to get gasoline as claimed by Rowland and indeed had not on that night driven the truck while in Rowland's company.
As his first summarized assignment of error, Rowland asserts that the trial court erred in allowing the State to offer evidence that Rowland had been consuming alcohol prior to his arrest.
Anticipating Jarrett's testimony concerning the beer cans he observed in the truck and Rowland's condition, Rowland objected to this evidence before it was given. He argued that evidence he had been consuming alcohol prior to his arrest was irrelevant to whether he had been operating a motor vehicle while his operator's license had been revoked.
Neb.Rev.Stat. § 27-401 (Reissue 1989) embodies the modern view that evidence is probative if it tends in any degree to alter the probability of a material fact. State v. Oliva, 228 Neb. 185, 422 N.W.2d 53 (1988). See, also, State v. Hankins, 232 Neb. 608, 441 N.W.2d 854 (1989). While under Neb.Rev.Stat. § 27-403 (Reissue 1989) "relevant ... evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice," Rowland, as will be seen, fails to show the existence of such prejudice. Jarrett merely described the facts and circumstances surrounding Rowland's arrest, including evidence that Rowland may have been drinking and may have been intoxicated on the evening he was arrested. A juror could have concluded therefrom that it was likely Rowland in fact had been drinking and that, in an alcohol-impaired state, he would be more likely to exercise such poor judgment as to operate a vehicle notwithstanding that his operator's license had been revoked. The evidence would also help explain why Rowland may have erroneously thought that Havel had been with him in the truck and had gone to get gasoline.
It is within the trial court's discretion to admit or exclude relevant evidence, and such rulings will be upheld on appeal absent an abuse of discretion. State v. Ruyle, 234 Neb. 760, 452 N.W.2d 734 (1990); State v. Chapman, 234 Neb. 369 451 N.W.2d 263 (1990). For the reasons described earlier, it cannot be said the trial court abused its discretion by permitting Jarrett to testify with respect to evidence that Rowland had been consuming alcohol prior to his arrest.
In connection with his second summarized assignment of error, Rowland contends that the trial court erred in (1) overruling his motion to strike the testimony of Jarrett that Rowland was "evasive" when asked whether he was driving the vehicle and (2) overruling his motion to strike the testimony of Jarrett that Rowland would not answer when asked whether he was driving the vehicle.
The first aspect of this summarized assignment of error was precipitated by the following exchange:
Q. Did you talk to Mr. Rowland?
A. Yes, I did.
Q. What did you say?
A. I had asked Mr. Rowland if there was a problem or why, what he was doing there. He went directly into that there was another party in the vehicle, a Shannon Havel, H-a-v-e-l. He advised that they had run out of gas and Miss Havel had left and walking [sic] to go get gas and she had not returned.
Q. Did you ask Mr. Rowland anything at that time?
A. I asked him if he had been operating the vehicle.
Q. And did Mr. Rowland respond?
A. No. He was evasive with his answer.
Assuming, without deciding, that the trial court erred in overruling Rowland's motion, neither the record nor Rowland's brief contains any indication of how Rowland could...
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