State v. Sutton

• Decision Date: 27 January 1989
• Docket Number: No. 87-1071,87-1071
• Citation: State v. Sutton, 231 Neb. 30, 434 N.W.2d 689 (Neb. 1989)
• Parties: STATE of Nebraska, Appellee, v. Daniel G. SUTTON, Appellant.
• Court: Nebraska Supreme Court

Page 689

434 N.W.2d 689

231 Neb. 30

STATE of Nebraska, Appellee, v. Daniel G. SUTTON, Appellant.

No. 87-1071.

Supreme Court of Nebraska.

Jan. 27, 1989.

Syllabus by the Court

1. Search and Seizure: Proof. When evidence is seized pursuant to consent, and not pursuant to a warrant, the burden is on the government to prove that the search was voluntarily permitted, invited, or agreed to by the persons whose rights were involved. Whether a person voluntarily consented to a search is a question of fact to be determined from the totality of circumstances surrounding the search.

2. Motions to Suppress: Appeal and Error. At a hearing to suppress evidence, the court, as the trier of fact, is the sole judge of the credibility of witnesses and the weight to be given to their testimony and other evidence. In reviewing a court's ruling as the result of a suppression hearing, the Supreme Court will not reweigh or resolve conflicts in the evidence, but will uphold the trial court's findings of fact unless those findings are clearly wrong.

3. Search and Seizure. A search made pursuant to consent may not exceed the scope of the consent.

4. Testimony: Trial. Cross-examination is proper as to anything tending to affect the accuracy, veracity, or credibility of the witness.

5. Testimony: Trial: Appeal and Error. The scope of cross-examination of a witness rests largely in the discretion of the trial court, and its ruling will be upheld on appeal unless there is an abuse of discretion.

6. Evidence: Trial: Appeal and Error. It is within the trial court's discretion to admit or exclude evidence, and such rulings will be upheld on appeal absent an abuse of discretion.

7. Sexual Assault: Lesser-Included Offenses. A substantial step in a course of conduct intended to culminate in a sexual assault in the first degree (sexual penetration) may include a substantial step in a course of conduct intended to culminate in achievement of sexual contact as well, that is, commission of a sexual assault in the second degree.

8. Jury Instructions: Evidence: Proof. The trial court is not required to give a jury instruction where there is insufficient evidence to prove the facts claimed.

9. Criminal Law: Words and Phrases. To constitute one an accomplice, he must take some part in the crime, perform some act, or owe some duty to the person in danger that makes it incumbent on him to prevent the commission of the crime. Mere presence, acquiescence, or silence, in the absence of a duty to act, is not enough to constitute one an accomplice. The knowledge that a crime is being or is about to be committed cannot be said to constitute one an accomplice.

10. Sentences: Appeal and Error. A sentence imposed within the limits prescribed by statute will not be set aside as excessive absent an abuse of discretion on the part of the sentencing judge.

Edward F. Fogarty of Fogarty, Lund & Gross, for appellant.

Robert M. Spire, Atty. Gen., and Donald E. Hyde, for appellee.

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

GRANT, Justice.

This is an appeal from the district court for Sarpy County. The defendant-appellant, Daniel G. Sutton, was charged by information with attempted first degree sexual assault (count I), second degree assault (count II), and possession of cocaine with intent to deliver (count III). He pled not guilty, and the matter was tried before a jury on September 14 to 16, 1987. The jury returned verdicts of guilty on all counts, and the defendant's motion for new trial was overruled. Defendant was sentenced to a term of 2 to 5 years' imprisonment on count I and 2 years' imprisonment on count II, with these sentences to run concurrently. He was sentenced to 3 to 10 years' imprisonment on count III, to be served consecutively to the sentences imposed on counts I and II.

Defendant appeals, contending the district court erred (1) in admitting into evidence items seized at defendant's home and in failing to grant his motion to suppress said evidence; (2) in its rulings on evidentiary questions concerning defendant's prior use of cocaine, expert testimony regarding the amount of cocaine a user would possess for personal use, and cross-examination of the complaining witnesses on their knowledge of penalties for possession of cocaine; (3) in refusing to permit defendant to testify in surrebuttal regarding prior sales of cocaine to one of the State's complaining witnesses; (4) in its rulings on character evidence; (5) in failing to instruct the jury on self-defense in connection with count II; (6) in failing to instruct the jury on accomplice testimony with respect to count III; and (7) in failing to submit to the jury the lesser-included offenses to attempted first degree sexual assault.

Defendant further contends the district court was biased "towards the prosecution side," and abused its discretion and "prevented [him] from having a fair trial and a fair sentence and a fair disposition of the issues brought to the Court's attention" by (1) making derogatory comments on defendant's credibility at the suppression hearing; (2) allowing the jury to infer that defendant had attempted to tape-record the court proceedings; (3) failing to grant defendant's request to impanel a second black juror; (4) interrupting defendant's testimony so as to put him in a "bad light" before the jury; and (5) not admitting defendant to bail pending presentence investigation and failing to set an appeal bond.

Finally, defendant claims he received an excessive sentence. We affirm defendant's convictions and sentences on counts II and III, and reverse and remand for a new trial on count I.

The record shows the following facts supporting defendant's convictions. On the evening of May 2, 1987, the victim, Suzanne Gibson, and her friend Kristie Beener attended Beener's niece's wedding. After the wedding, the two women attended the reception. Defendant also attended the reception, together with his wife, Valeria; his small son; and his cousin, Nate Lawler. Although Gibson had not met defendant prior to May 2, 1987, Beener and the defendant were social friends and had worked together at the Omaha Country Club. Beener testified that defendant suggested she and her friends come over to his house following the reception.

At 12:30 a.m., Gibson left the reception with Beener and another woman friend, taking with them a keg of beer left over from the wedding reception. They went to Gibson's home in Omaha, where they continued drinking. Sometime later, Beener telephoned defendant from Gibson's house "to see if he still had people out there."

At about 1:15 a.m., Beener and Gibson drove to the defendant's home. They arrived at 1:45 a.m. and went directly to the basement area of the house. Lawler carried the keg of beer to the basement. For the first half hour after their arrival, Gibson and Beener talked with several people in the basement, including the defendant, Valeria Sutton, Lawler, a female friend of Valeria's, and two small children. Defendant was no longer wearing the suit he wore to the reception, but was wearing pajamas and a robe.

At about 2:30 or 3 a.m., Gibson, Beener, Lawler, and the defendant began to play poker. During the card game, these parties continued to drink beer and started snorting cocaine. The cocaine was on a dinner plate which had been placed on the card table. Gibson testified that she first noticed the cocaine during the poker game and that there was about one-third of a cup of the substance on the plate. Beener testified that the plate of cocaine was not on the table when she and Gibson arrived, and estimated the amount of cocaine on the dinner plate to be about "half a gram." Both Gibson and Beener testified that the defendant set the cocaine up in lines at the table and that all the parties to the card game snorted it through straws or rolled-up dollar bills.

Gibson further testified that during the card game, defendant put his hand on her leg, under her dress at midthigh, and that she told him to stop. Beener testified that "we all kind of laughed it off. I said, 'She's a newly-married woman,' and I said, 'Dan,' I said, 'your wife and kid are upstairs.' "

The poker game ended at 6 a.m., when Beener and Lawler left to buy cigarettes. Gibson was ready to leave at this point, but agreed to wait until Beener and Lawler returned. Shortly after Beener and Lawler left the house, defendant again tried to put his hand on Gibson's thigh. Gibson objected and stood up. Defendant pulled the front of Gibson's dress down, ripping the back loose and exposing her breasts. Gibson testified that as she tried to leave the room, the defendant struck her on the back of the head with a hard object, and she dropped to the floor. Defendant leaped on top of her from behind and hit her several times with the hard object, which Gibson later determined to be a gun when she observed it during the struggle. An exchange of biting took place, and Gibson saw blood dripping down her arms. Gibson testified that defendant "just kept telling me to do what he said so that he didn't have to shoot me." During the assault, defendant pulled Gibson's panty hose and panties to her knees and told her he was going to "stick his dick in [her] butt."

Gibson testified she did not remember how she got out of the basement. She left defendant's house and sought help from neighbors. Lynn Gawerecki, who did not know Gibson on the date of the assault, testified that Gibson rang her doorbell at about 7 a.m. and "had blood covering down her face and her arms and her hand." Gibson, who appeared to be "really scared" and "hysterical," told Gawerecki that defendant beat her and that he had a gun, and asked her to call the police. Gawerecki called the Sarpy County sheriff's office.

Meanwhile, Beener and Lawler returned to the Sutton home. Valeria Sutton answered the door and asked Beener, "Where's that girl? Dan's got blood on him." Beener went...