State v. Sardeson, s. 88-382

Citation231 Neb. 586,437 N.W.2d 473
Decision Date24 March 1989
Docket NumberNos. 88-382,88-383,s. 88-382
PartiesSTATE of Nebraska, Appellee, v. Patrick A. SARDESON, Appellant.
CourtSupreme Court of Nebraska

Syllabus by the Court

1. Constitutional Law: Statutes: Speedy Trial. The constitutional right to a speedy trial and the statutory implementation of that right under Neb.Rev.Stat. § 29-1207 (Reissue 1985) exist independently of each other.

2. Constitutional Law: Speedy Trial: Arrests: Indictments and Informations. Any unreasonable delay occurring after arrest and prior to the filing of an information will be considered in determining whether a defendant has been denied the constitutional right to a speedy trial.

3. Constitutional Law: Speedy Trial. Determining whether a defendant's constitutional right to a speedy trial has been violated requires a balancing test in which courts must approach each case on an ad hoc basis. This balancing test involves four factors: length of delay, the reason for the delay, the defendant's assertion of the right, and prejudice to the defendant. None of these four factors are either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant.

4. Constitutional Law: Speedy Trial. Under the provisions of the U.S. and Nebraska Constitutions, the right to a speedy trial is relative and depends upon circumstances; it is not denied where the delay is satisfactorily explained by the government and the defendant was brought to trial as soon as was reasonably possible.

5. Constitutional Law: Speedy Trial. In the absence of prejudice, unexplained delay between arrest and arraignment or preliminary hearing does not demonstrate a violation of the right to a speedy trial.

6. Convictions: Lesser-Included Offenses: Constitutional Law: Double Jeopardy. When a defendant is convicted of both a greater and lesser-included offense, the conviction and sentence on the lesser charge must be vacated, for the constitutional prohibition against double jeopardy protects not only against a second prosecution for the same offense after acquittal or conviction, but also against multiple punishments for the same offense.

7. Constitutional Law: Double Jeopardy. The constitutional prohibition against double jeopardy has no application where two separate and distinct crimes are committed as the result of one act, because the constitutional proscription is directed to the identity of the offense and not to the act.

8. Lesser-Included Offenses: Words and Phrases. A lesser-included offense is one which is necessarily established by proof of the greater offense.

9. Burglary: Intent. One commits burglary in violation of Neb.Rev.Stat. § 28-507(1) (Reissue 1985) when one, in the proscribed manner, breaks and enters any real property or improvements thereon with the proscribed intent; no actual theft or asportation of property is required.

10. Theft: Intent. One commits theft by receiving stolen property if one receives, retains, or disposes of, in short, possesses, stolen movable property of another with the proscribed knowledge and intent.

11. Motions to Suppress: Appeal and Error. In determining the correctness of a trial court's ruling on a motion to suppress, the Supreme Court will uphold the trial court's findings of fact unless those findings are clearly erroneous.

12. Motions to Suppress: Appeal and Error. In determining whether a trial court's findings on a motion to suppress are clearly erroneous, the Supreme Court does not reweigh the evidence or resolve conflicts in the evidence, but, rather, recognizes the trial court as the finder of fact and takes into consideration that the trial court has observed witnesses testifying in regard to such motions.

13. Constitutional Law: Search and Seizure. Under both the fourth amendment to the U.S. Constitution and article I, § 7, of the Nebraska Constitution, whether a search by a private person is actually a search by the State depends on whether the private person must be regarded as having acted as an instrument or agent of the State.

14. Constitutional Law: Search and Seizure. A private person's status as a state agent in a search is not restricted to a search ordered, requested, or initiated by a state official, but may include a search which is a joint endeavor between a private person and a state official.

15. Constitutional Law: Police Officers and Sheriffs: Search and Seizure: Proof. Some conduct by the police in advancement or inducement of a search by a private person must be proven to make out a joint endeavor.

16. Criminal Law: Identification Procedures. Whether identification procedures were unduly suggestive and conducive to a substantial likelihood of irreparable mistaken identification is to be determined by a consideration of the totality of the circumstances surrounding the procedures.

17. Criminal Law: Evidence: Identification Procedures. Evidence of an extrajudicial identification is admissible when made under circumstances precluding the suspicion of unfairness or unreliability and where the out-of-court declarant is present at the trial and subject to cross-examination, whether or not the out-of-court declarant made a positive in-court identification.

18. Trial: Evidence: Appeal and Error. The admission or exclusion of evidence is a matter within the discretion of the trial court, whose ruling is not to be disturbed on appeal absent an abuse of that discretion.

19. Expert Witnesses: Juries. It is not for an expert to suggest to a jury how a witness' testimony shall be weighed or evaluated.

20. Evidence: Hearsay. Evidence which is not offered to prove the truth of the matter asserted is not hearsay.

21. Motions for Mistrial: Appeal and Error. The decision to grant a motion for mistrial is within the discretion of the trial court and will be upheld on appeal absent a showing of abuse of discretion.

22. Trial: Evidence: Motions for Mistrial. To prevent defeat of justice or to further justice during a jury trial, a mistrial is generally granted at the occurrence of a fundamental failure preventing a fair trial in the adversary process.

23. Habitual Criminals: Records: Names. An authenticated record establishing a prior conviction of a defendant with the same name is prima facie sufficient to establish identity for the purpose of enhancing punishment under the provisions of Neb.Rev.Stat. § 29-2222 (Reissue 1985) and, in the absence of any denial or contradictory evidence, is sufficient to support a finding by the court that the accused has been convicted prior thereto.

Roger C. Lott, Lincoln, for appellant.

Robert M. Spire, Atty. Gen., and Susan M. Ugai, Lincoln, for appellee.

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

CAPORALE, Justice.

Following a consolidated jury trial, defendant-appellant, Patrick A. Sardeson, was convicted, in case No. 88-382, of burglary in violation of Neb.Rev.Stat. § 28-507(1) (Reissue 1985), and, in case No. 88-383, of possessing the property stolen during the aforesaid burglary in violation of Neb.Rev.Stat. § 28-517 (Reissue 1985). Having thereafter been found to be a habitual criminal, Sardeson was sentenced to imprisonment for a period of not less than 10 nor more than 20 years on each conviction, the sentences to be served concurrently, with credit for the 375 days Sardeson was incarcerated pending trial of these cases. In this consolidated appeal, Sardeson assigns errors which meld to claim the district court wrongly (1) failed to dismiss the two informations because of excessive delay, (2) failed to require the State to dismiss one charge or the other, (3) failed to suppress certain evidence, (4) excluded certain other evidence, (5) admitted certain evidence, (6) failed to grant a mistrial, and (7) found Sardeson to be a habitual criminal. We affirm.

I. BACKGROUND

On the morning of March 9, 1987, David and Paula Hubertus left their Lancaster County residence for work. Mr. Hubertus returned at 5:30 that afternoon to find that someone had entered the house by breaking open a locked door, had ransacked the house, and had taken several items. The missing items included a videocassette recorder, several rings including Mrs. Hubertus' very distinctive $2,250 wedding ring, a bracelet, and a metal box containing Mr. Hubertus' coin and currency collection.

Following the investigations detailed below, searches made pursuant to warrant resulted in recovery of the coinbox taken in the Hubertus burglary, which proved to bear Sardeson's fingerprints. Additional facts of record will be discussed as necessary in part II, which analyzes in turn each of Sardeson's summarized assignments of error.

II. ANALYSIS
1. Delay Claim

Sardeson cites as his first assignment of error the district court's refusal to dismiss both informations for excessive delay. Sardeson was arrested on March 12, 1987; bail was set and subsequently reduced, but Sardeson nevertheless remained incarcerated thereafter. He was initially charged with forgery; the charge of burglary was brought on June 19, 1987. On September 23, 1987, the State dismissed the forgery charges; possession of stolen property was charged on October 9, 1987. On November 23, 1987, Sardeson, through his attorney, expressly waived his right to a speedy trial in both cases and requested continuance of both to the January 18, 1988, jury term. The district court accepted this waiver, granted the requested continuance, and ordered the two cases consolidated for trial. Sardeson at no time thereafter questioned the validity of this waiver nor sought to withdraw it but, on December 21, 1987, filed motions to dismiss both cases, arguing, in relevant part, that the State, by actively trying to keep him in custody, violated his rights to a speedy trial and reasonable bail guaranteed him by the sixth and eighth...

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