State v. Trevino
| Decision Date | 02 December 1988 |
| Docket Number | No. 87-410,87-410 |
| Citation | 230 Neb. 494,432 N.W.2d 503 |
| Parties | STATE of Nebraska, Appellee, v. Juan TREVINO, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Criminal Law: Jurisdiction: Juvenile Courts: Waiver: Appeal and Error. Whether to waive jurisdiction over a criminal proceeding to the juvenile court is a matter within the discretion of the district court, and such decision will not be reversed on appeal absent an abuse of that discretion.
2. Criminal Law: Jurisdiction: Juvenile Courts: Waiver. Neb.Rev.Stat. §§ 29-1816 (Reissue 1985) and 43-202.01 (Reissue 1978) provide a balancing test in which public protection and security are weighed against practical, and not problematical, rehabilitation in determining whether there should be a waiver of jurisdiction over a criminal proceeding to the juvenile court.
3. Criminal Law: Jurisdiction: Juvenile Courts. The probability of success and the duration of rehabilitative treatment must be considered in determining whether detention will be in the juvenile justice system or in the criminal justice system.
4. Criminal Law: Jurisdiction: Juvenile Courts: Waiver. The district court may properly refuse to waive jurisdiction over a criminal proceeding to the juvenile court where the district court complies with the provisions of statute and makes a statement of its findings which provides sufficient specificity to permit meaningful review by this court.
5. Trial: Words and Phrases. "Judicial abuse of discretion" means that the reasons or rulings of the trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result in matters submitted for disposition.
6. Verdicts: Appeal and Error. After a jury has considered all the evidence and returned a verdict of guilty, that verdict may not, as a matter of law, be set aside on appeal for insufficiency of the evidence, if the evidence sustains some rational theory of guilt.
7. Convictions: Appeal and Error. In determining the sufficiency of the evidence to sustain a conviction, it is not the province of this court to resolve conflicts in the evidence, pass on the credibility of witnesses, determine the plausibility of explanations, or weigh the evidence; the verdict of the fact finder must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support the verdict.
8. Homicide: Evidence: Intent. The state of mind required for second degree murder may be inferred from the evidence of the criminal act.
9. Homicide: Intent: Words and Phrases. Malice, in the context of second degree murder, denotes that condition of the mind which is manifested by the intentional doing of a wrongful act without just cause or excuse and is any willful or corrupt intention of the mind.
10. 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.
11. Due Process: Identification Procedures. A claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding it.
12. Trial: Identification Procedures. Evidence of an extrajudicial identification is admissible when made under circumstances precluding the suspicion of unfairness or unreliability and where the person making the out-of-court identification is present at the trial and subject to cross-examination.
13. Trial: Identification Procedures. The factors to be considered in determining the likelihood of misidentification are the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation, coupled with the ability to cross-examine the person making the out-of-court identification.
14. Trial: Identification Procedures. An in-court identification is not to be suppressed if based on an independent recollection untainted by the intervening identifications.
15. Trial: Evidence: Appeal and Error. It is within the trial court's discretion to admit or exclude evidence on the ground of relevancy, and such rulings will be upheld absent an abuse of discretion.
16. Expert Witnesses: Trial. The opinion of an expert witness is properly admitted into evidence where the scientific or technical basis of the opinion and the specific facts on which it is based are before the jury, and the opposing party has the opportunity to cross-examine such witness as to these foundational matters.
17. Expert Witnesses: Trial. It is no abuse of discretion to admit expert testimony regarding the analysis of a substance necessarily consumed in testing, provided that the scientific or technical basis of the expert's opinion and the specific facts of the case on which the expert's opinion is based are before the jury and that the opposing party has the opportunity to cross-examine the expert as to these foundational matters.
18. Expert Witnesses: Trial. Expert testimony is admissible only if it will be of assistance to the jury in its deliberations and relates to an area not within the competency of ordinary citizens.
19. Expert Witnesses: Trial. If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in issue, expert testimony may be admissible.
20. Expert Witnesses: Juries. It is not for an expert to suggest to a jury how a witness' testimony shall be weighed or evaluated.
21. 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 by the sentencing judge.
22. Sentences. In imposing a sentence, a trial court should consider, among other things, the defendant's age, mentality, education, experience, and social and cultural background, as well as his past criminal record or law-abiding conduct, motivation for the offense, nature of the offense and the amount of violence involved in the commission of the crime.
23. Sentences: Double Jeopardy: Trial. Where a legislature specifically authorizes cumulative punishment under two statutes proscribing the same conduct, the prosecution, in a single trial, may seek and the court impose such cumulative punishment without offending the double jeopardy clause of the fifth amendment to the U.S. Constitution.
24. Sentences: Weapons. The language of Neb.Rev.Stat. § 28-1205(3) (Reissue 1985), to the effect that sentences under its provisions must be imposed consecutively to any sentence imposed for the predicate felony, is mandatory and not within the discretion of the sentencing court.
25. Assault: Lesser-Included Offenses. Assault in the second degree is not a lesser-included offense of attempted murder in the second degree.
This appeal arises from the consolidated trials of two cases before a jury. In the first case, defendant-appellant, Juan Trevino, was adjudged guilty of the second degree murder of Marco Perez, the use of a firearm to commit that felony against Perez, the attempted second degree murder of Mark Heil, and the use of a firearm to commit that felony against Heil. In the second case, Trevino was adjudged guilty of a first degree assault upon Heil and of using a firearm in the commission of that felony. Trevino was thereafter sentenced to imprisonment on each of these convictions, as detailed in part V of the ANALYSIS portion of this opinion. He assigns 12 errors, which may be summarized as claiming that the district court erred in (1) not waiving jurisdiction of Trevino, who was not quite 18 years old at the time of the crimes, to the juvenile court, (2) finding the evidence sufficient to support the verdicts, (3) admitting certain evidence, (4) excluding certain evidence, and (5) imposing excessive sentences. We affirm.
Because of the breadth of this appeal, which embraces events from the pretrial refusal to waive jurisdiction in favor of the juvenile court to the imposition of sentences after conviction, we shall, rather than first setting forth the many facts of record, deal with them as we consider, in turn, each summarized assignment of error.
Trevino first asserts that the district court erred in not waiving jurisdiction over him to the juvenile court. Neb.Rev.Stat. § 29-1816 (Reissue 1985) provides, in relevant part, that upon proper motion, the district court shall consider whether it should waive jurisdiction of one who was less than 18 years of age at the time the alleged crimes were committed to the juvenile court for proceedings under the Nebraska Juvenile Code. Section 29-1816 further provides that after considering the criteria set forth in Neb.Rev.Stat. § 43-202.01 (Reissue 1978), now Neb.Rev.Stat. § 43-276 (Reissue 1984), the case shall be transferred unless "a sound basis exists for retaining the case." Section 43-202.01 lists the following matters to be considered by a county attorney in determining whether to file a criminal charge or juvenile court petition:
(1) The type of treatment such minor would most likely be amenable to; (2) whether there is evidence that the alleged offense included violence or was committed in an aggressive and premeditated manner; (3) the motivation for the commission of the offense; (4) the age of the minor and the ages and circumstances of any others involved in the offense; (5) the previous history of the minor, including whether he had been convicted of any previous offenses or adjudicated in juvenile court and, if so, whether such offenses were crimes against the person or relating to property, and other previous history of antisocial...
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