State v. Sayers

• Decision Date: 14 May 1982
• Docket Number: No. 44212,44212
• Citation: 319 N.W.2d 438,211 Neb. 555
• Parties: , 31 A.L.R.4th 666 STATE of Nebraska, Appellee, v. Steven SAYERS, Appellant.
• Court: Nebraska Supreme Court

Page 438

319 N.W.2d 438

211 Neb. 555, 31 A.L.R.4th 666

STATE of Nebraska, Appellee, v. Steven SAYERS, Appellant.

No. 44212.

Supreme Court of Nebraska.

May 14, 1982.

Syllabus by the Court

1. Attorney and Client: Stipulations. A client is bound by the oral stipulations of his attorney made out of court if within the scope of the attorney's duties and powers, if such stipulations are established by the testimony of the attorney making the same.

2. Criminal Defendants: Attorney and Client. Except for such basic decisions as to whether to plead guilty, waive a jury trial, or testify in his or her own behalf, a defendant in a criminal trial is bound by the tactical or strategic decisions made by counsel.

3. Criminal Defendants: Absence from Trial: Attorney and Client. In situations where a defendant has voluntarily absented himself from trial, tactical or strategic decisions made by that defendant's counsel will be binding upon the defendant in spite of his or her voluntary absence.

4. Trial: Attorneys at Law. The decision to object or not to object to offers of evidence is part of trial strategy, which would include that decision to waive foundational requirements for the reception of evidence.

5. Appeal and Error. This court will not interfere on appeal with a conviction based upon evidence unless it is so lacking in probative force that we can say as a matter of law that it is insufficient to support a verdict of guilt beyond a reasonable doubt.

6. Criminal Defendants: Absence from Trial: Jury Instructions. Where a defendant has voluntarily absented himself from a portion of his trial, the jury is entitled to know that fact, the fact that his absence was not caused by unjust governmental action, but should be directed to draw no other conclusions or inferences from the fact of defendant's absence.

Thomas M. Kenney, Douglas County Public Defender, and Stanley A. Krieger, Asst. Public Defender, Omaha, for appellant.

Paul L. Douglas, Atty. Gen., and Patrick T. O'Brien, Asst. Atty. Gen., Lincoln, for appellee.

Heard before BOSLAUGH, McCOWN, WHITE, HASTINGS, and CAPORALE, JJ., BRODKEY, J., Retired, and RONIN, District Judge, Retired.

HASTINGS, Justice.

The defendant, Steven Sayers, was charged by information with theft by unlawful taking of a microwave oven, valued over $300 but less than $1,000, from a Montgomery Ward store. Following a trial by jury, the defendant was found guilty on February 13, 1981, by the District Court for Douglas County, and was sentenced to a term of 359 days in the Douglas County Correctional Complex. He has appealed from that conviction and sentence, contending that the evidence presented was insufficient as a matter of law to support his conviction; that certain exhibits were improperly admitted by the trial court; and that the trial court improperly instructed the jury with regard to the defendant's absence from the trial. We affirm.

As noted above, this case involves the alleged theft of a microwave oven from the Montgomery Ward store located at the Westroads Shopping Center in Omaha, Nebraska. At some point during November 1980, the retail store sales manager in charge of major appliances at that store noted an unaccounted-for decrease in the inventory of model 8201 microwave ovens. The manager reported this situation to the store's security manager, Valerie Moen, in the latter part of November 1980. After investigating the matter, Moen and another security officer, Douglas Jasa, began surveillance of the store's shipping, receiving, and customer pickup entrance during the afternoon of December 18, 1980. At approximately 8:15 p. m. on that date, they observed the defendant, who worked in the receiving department of the Ward store, approach the receiving area and enter the store through the customer entrance. About an hour later, at 9:15 p. m., defendant was seen by the security personnel walking on the dock and getting into a Pinto automobile parked in the parking lot near the docks. With the aid of binoculars, the security personnel were able to observe defendant sitting in the parked Pinto for about 5 minutes, after which he got out of the car and once again approached the dock area. Upon reaching the docks, the defendant was observed crouching behind some truck trailers, apparently observing some activity on the dock for several minutes. Defendant then approached one of the overhead doors located on the dock; raised it a few inches and then lowered it; looked under the truck trailers a second time; and then raised the same door, pulled a microwave oven box out from behind the door, and then lowered the door. Defendant then carried the box to his car, placed it in the car, and drove away. Both security personnel stated that the particular box was a sealed carton in which a model 8201 microwave oven was shipped.

An attempt to stop the defendant before he got out of the parking lot was unsuccessful, although Jasa was able to approach the defendant on foot and identify himself as a member of Ward's security force before the defendant drove away. At this point Jasa and Moen returned to Ward's to obtain defendant's address and call the police. Having done so, the two proceeded to defendant's home, where they established surveillance for the rest of the night. They observed defendant arrive home at about 4:25 a. m., leave about 4:30 a. m., and return home for the rest of the night at about 4:45 a. m. Jasa and Moen waited until 6:30 a. m., at which time they drove by the Pinto and were able to see that there was no microwave oven box in the car. Upon making this observation they went to the police station to report the matter to the police. A subsequent search of defendant's home by the police on December 19, 1980, failed to produce any property belonging to Montgomery Ward. The defendant was convicted on the basis of the testimony of Jasa and Moen regarding the observations they had made on December 18 and 19, 1980.

The nature of the assignments of error makes it necessary to address the matter of the admissibility of certain evidence prior to discussing the sufficiency of the evidence to support the conviction. Defendant contests the admission of exhibits 7, 8, and 9. Exhibit 7 was a "package pickup log" which was allegedly signed by all the customers who carried merchandise out of the dock area which was the target of the surveillance on December 18, 1980. Exhibit 8 was a "home demonstration log" which was allegedly signed by all Montgomery Ward employees who take merchandise home. Exhibit 9 was a log of all "no sales" deliveries, which were deliveries made to a customer's home without an actual purchase being made of the item delivered.

These three exhibits were offered following the testimony of Valerie Moen. Moen testified to the contents of the exhibits, to the purpose served by each record, and to the fact that there were no other records that would relate to merchandise removed from the store through the area observed during the surveillance. Furthermore, Moen stated that the records were all stored in the "customer accommodation center" of the store under the supervision of a separate manager, but that she, Moen, had the authority to take whatever records she needed in connection with her duties as security manager. However, during cross-examination, Moen admitted that she had nothing to do with the creation or keeping of these records, and, most importantly, had nothing to do with the verification of the accuracy of the various records.

On the basis of this information, the court originally sustained an objection to the foundation laid for the admission of exhibits 7, 8, and 9. However, for reasons discussed hereafter, the court reversed itself and admitted the exhibits, none of which contain the defendant's signature and circumstantially show that the defendant did not have the authority or permission to remove a microwave oven from the Montgomery Ward store on December 18, 1980.

The circumstances surrounding the court's reversal of its decision revolve around the defendant's absence from his trial. While the defendant was present at the commencement of the trial and did appear briefly on the second day, he was not present for most of the second day of testimony for some unexplained reason. The proceedings on this second day included the testimony of Valerie Moen and the offering of the exhibits in dispute. At some time prior to the defendant's disappearance, and before the court had originally sustained the objections to exhibits 7, 8, and 9, his counsel had discussed these exhibits again with the prosecution and had agreed to waive any foundational objections he might have had concerning these three exhibits. However, following his client's disappearance, counsel was ordered by the court to continue to represent the defendant with "vigor, including cross-examination and making final argument." Pursuant to this order, defense counsel felt obligated to object to the offer of the exhibits in his client's absence.

After being presented with this explanation of the situation, the court noted that it would "reconsider its previous rulings on Exhibits 7, 8 and 9 and when we reconvene, the Court will receive Exhibits 7, 8 and 9 into evidence without further foundation."

The defendant now assigns such action by the trial court as error, contending that insufficient foundation was established to meet the business records exception to the hearsay rule found in Neb.Rev.Stat. § 27-803 (Reissue 1979). The State counters this argument by contending that sufficient foundation was presented in the testimony of Valerie Moen, who, in the State's opinion, meets the requirements of a "qualified witness" within the provisions of the aforementioned statute.

A preliminary matter requiring our attention is whether the waiver of foundation for the exhibits in question by the defendant's counsel was binding upon the defendant. Neb.Rev.Stat. § 7-107 (Reissue 1977)...