State v. Van Richardson
| Decision Date | 10 May 2013 |
| Docket Number | No. S–11–921.,S–11–921. |
| Citation | 285 Neb. 847,830 N.W.2d 183 |
| Parties | STATE of Nebraska, appellee, v. Bryan Van RICHARDSON, Jr., appellant. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court
[285 Neb. 847]1. Trial: Evidence: Appeal and Error. An appellate court reviews the trial court's conclusions with regard to evidentiary foundation and witness qualification for an abuse of discretion.
2. Convictions: Proof. To sustain a conviction based on information derived from an electronic or mechanical measuring device, there must be reasonable proof that the measuring device was accurate and functioning properly.
3. Trial: Evidence: Juries: Verdicts: Appeal and Error. Evidentiary error is harmless when improper admission of evidence did not materially influence the jury to reach a verdict adverse to substantial rights of the defendant.
4. Trial: Verdicts: Appeal and Error. Harmless error review looks to the basis on which the trier of fact actually rested its verdict; the inquiry is not whether in a trial that occurred without the error a guilty verdict would surely have been rendered, but, rather, whether the actual guilty verdict rendered in the questioned trial was surely unattributable to the error.
5. Double Jeopardy: Evidence: New Trial: Appeal and Error. The Double Jeopardy Clause does not forbid a retrial so long as the sum of all the evidence admitted by a trial court would have been sufficient to sustain a guilty verdict.
Jerry Fogarty, Grand Island, for appellant.
Jon Bruning, Attorney General, and Nathan A. Liss, Lincoln, for appellee.
We granted the petition for further review of the Nebraska Court of Appeals' decision in which it affirmed the conviction and sentence of Bryan Van Richardson, Jr., in the district court for Hall County for possession of a controlled substance, cocaine, with intent to distribute. The sole issue on which Richardson sought further review was whether there was sufficient foundation regarding the accuracy of a scale used to weigh the cocaine in order to admit evidence of the weight. Because we conclude that the foundation was not sufficient, we reverse the decision of the Court of Appeals and remand the cause to the Court of Appeals with directions to reverse Richardson's conviction and sentence and to remand the cause to the district court for a new trial.
Richardson was charged with possession of a controlled substance, cocaine, with intent to distribute in violation of Neb.Rev.Stat. § 28–416 (Reissue 2008). The State alleged that the quantity of cocaine involved was between 10 and 28 grams. Section 28–416(7)(c) provides that with respect to cocaine, a violation of the statute is a Class ID felony if the quantity of cocaine involved is at least 10 but less than 28 grams. The offense is a lesser or greater felony depending on the quantity of the controlled substance involved. Evidence of the weight of the cocaine involved is therefore relevant to determine the grade of the offense.
At trial, the State's witnesses included Craig Redinger, who had agreed to work with a drug task force in exchange for the dismissal of a pending burglary charge against him. Redinger testified generally that working with State Patrol investigators in a controlled buy, he arranged to purchase cocaine from Richardson. Redinger testified that during the purchase, he watched Richardson weigh the cocaine on a digital scale and the scale showed that the cocaine and the baggie in which it was contained weighed 11.2 grams. Richardson objected to this testimony based on “accuracy of the scale” and foundation. The district court overruled Richardson's objection.
The State also called Sarah Pillard, a chemist for the Nebraska State Patrol crime laboratory, as a witness. Pillard tested the substance Redinger purchased from Richardson, and it tested positive for cocaine. She also weighed the cocaine. Pillard testified that she routinely used the crime laboratory's scale and that she had gone through the weighing procedure “[t]housands” of times. She testified that the crime laboratory had its scale calibrated by the manufacturer once a year and that laboratory personnel checked every Friday to make sure the scale was working and would calibrate if necessary. Pillard testified that she followed the usual procedure to weigh the cocaine in this case. The State asked Pillard the weight of the cocaine. The court sustained Richardson's objection to the statement regarding weight based on “lack of sufficient and proper foundation.”
The State then questioned Pillard further regarding the scale. Pillard testified that the calibration was checked once a week by one of the chemists in the laboratory and that the calibration would have been checked within at least a week of the time the substance in this case was weighed. She testified that if there was an inconsistency with the calibration, the scale would be taken out of use until the manufacturer came in to repair it. She further testified that during the time she had been at the laboratory, she had never had an issue with the calibration of the scale, and that she was not aware of any issue with the calibration of the scale at the time she tested the cocaine in this case. The State again asked Pillard the weight of the cocaine, and this time, the court overruled Richardson's objection based on “lack of proper and sufficient foundation, foundation contains hearsay and confrontation.” Pillard testified that the weight of the cocaine, excluding its packaging, was 10.25 grams.
The jury found Richardson guilty, and it further found that the quantity of the mixture containing cocaine was 10.25 grams. The court entered judgment based on the verdict and sentenced Richardson to imprisonment for 3 to 6 years.
Richardson appealed to the Court of Appeals and asserted that the district court erred when, inter alia, it admitted evidence as to the weight of the cocaine over his objection. Richardson does not seek further review of the Court of Appeals' disposition of his other assignments of error, so they are not detailed herein. The Court of Appeals rejected Richardson's assignments of error and affirmed his conviction and sentence. State v. Richardson, No. A–11–921, 2012 WL 4795684 (Neb.App. Oct. 2, 2012) ().
We granted Richardson's petition for further review.
Richardson claims that the Court of Appeals erred when it affirmed the district court's admission of evidence of the weight of the cocaine over his objection that there was not sufficient foundation regarding the accuracy of the scale used to weigh the cocaine.
An appellate court reviews the trial court's conclusions with regard to evidentiary foundation and witness qualification for an abuse of discretion. State v. Gutierrez, 272 Neb. 995, 726 N.W.2d 542 (2007), abrogated on other grounds, State v. Thorpe, 280 Neb. 11, 783 N.W.2d 749 (2010).
We note as a preliminary matter that in rejecting Richardson's arguments regarding evidence of weight, the Court of Appeals noted that although Richardson mentioned both Redinger's and Pillard's testimony, his argument focused on Pillard's testimony. The Court of Appeals therefore considered only Pillard's testimony and Richardson's objections thereto. In support of further review, Richardson again mentions Redinger's testimony, but he makes no argument that the Court of Appeals erred by failing to address Redinger's testimony. We therefore limit our analysis on further review to Pillard's testimony. However, because we remand for a new trial, we note that if the State again attempts to present testimony regarding the weight of the items shown on Richardson's digital scale, the admissibility of such evidence will be governed by the principles set forth herein with respect to Pillard's testimony regarding weight.
On further review, Richardson asserts that the Court of Appeals erred when it affirmed the district court's admission of Pillard's testimony regarding the weight of the cocaine. We conclude that the State did not present sufficient foundation regarding the accuracy of the scale used by Pillard and that therefore it was error for the district court to admit Pillard's testimony regarding weight and for the Court of Appeals to affirm such admission. We further conclude that the error was not harmless and that it requires reversal of Richardson's conviction, but that Richardson may be retried on remand.
As urged by the State and as reflected by the Court of Appeals' opinion, it appears that there is some uncertainty whether under Nebraska law it is necessary to provide foundation regarding the accuracy of a scale before evidence of weight measured by such scale may be admitted or whether the accuracy of the scale is instead a factual issue to be determined by the jury. We conclude that the adequacy of the foundation regarding the accuracy of the scale is required to be determined by the court before evidence of weight may be admitted.
We note first that certain statutes control the admission of evidence of results obtained using some specific types of tests or measurement devices. See, Neb.Rev.Stat. § 60–6,192 (Reissue 2010) (speed measurement devices); Neb.Rev.Stat. § 60–6,201 (Reissue 2010) (tests to measure alcohol concentration in blood, breath, or urine). However, there is no statute that specifically addresses admission of evidence of weight obtained using a measurement device such as the scale at issue in this case.
This court has imposed requirements that apply generally to evidence obtained using a measurement device of any sort. See, State v. Canady, 263 Neb. 552, 641 N.W.2d 43 (2002) (...
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