State v. Watkins, 86-1012

• Decision Date: 26 February 1988
• Docket Number: No. 86-1012,86-1012
• Citation: 419 N.W.2d 660,227 Neb. 677
• Parties: STATE of Nebraska, Appellee, v. Robert E. WATKINS, Appellant.
• Court: Nebraska Supreme Court

Page 660

419 N.W.2d 660

227 Neb. 677

STATE of Nebraska, Appellee, v. Robert E. WATKINS, Appellant.

No. 86-1012.

Supreme Court of Nebraska.

Feb. 26, 1988.

Syllabus by the Court

1. Criminal Law: Directed Verdict. In a criminal case a court can direct a verdict only when (1) there is a complete failure of evidence to establish an essential element of the crime charged, or (2) evidence is so doubtful in character, lacking probative value, that a finding of guilt based on such evidence cannot be sustained.

2. Criminal Law: Motions to Dismiss Evidence. On a defendant's motion to dismiss for insufficient evidence of the crime charged against such defendant, the State is entitled to have all its relevant evidence accepted or treated as true, every controverted fact as favorably resolved for the State, and every beneficial inference reasonably deducible from the evidence.

3. Witnesses: Impeachment: Rules of Evidence: Prior Statements. "The credibility of a witness may be attacked by any party, including the party calling him." Neb.Evid.R. 607 (Neb.Rev.Stat. § 27-607 (Reissue 1985)). Regarding a witness' prior inconsistent statement, "Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate him thereon, or the interests of justice otherwise require." Neb.Evid.R. 613(2) (Neb.Rev.Stat. § 27-613(2) (Reissue 1985)).

4. Witnesses: Impeachment: Rules of Evidence: Prior Statements. Neb.Evid.R. 607, which authorizes impeachment, and Neb.Evid.R. 613, which permits extrinsic evidence of a prior inconsistent statement to impeach a witness, are not absolute rules for testimonial impeachment of a witness. Neb.Rev.Stat. §§ 27-607 and 27-613 (Reissue 1985).

5. Witnesses: Impeachment: Rules of Evidence: Prior Statements. Permissibility of testimonial impeachment by use of a witness' prior inconsistent statement is determined by collaterality of the prior statement.

6. Witnesses: Impeachment: Prior Statements. A witness may not be impeached by producing extrinsic evidence of collateral facts to contradict the first witness' assertions about those facts. A witness' prior inconsistent statement may be used to impeach the witness only on matters relevant to and otherwise admissible on some issue in the case tried.

7. Criminal Law: Trial: Juries: Appeal and Error: Words and Phrases. Harmless error exists in a jury trial of a criminal case when there is some incorrect conduct by the trial court which, on review of the entire record, did not materially influence the jury in a verdict adverse to a substantial right of the defendant.

8. Criminal Law: Trial: Evidence: Appeal and Error. Error in admitting or excluding evidence in a criminal trial, whether of constitutional magnitude or otherwise, is prejudicial unless it can be said that the error was harmless beyond a reasonable doubt.

Thomas M. Kenney, Douglas County Public Defender, and Timothy P. Burns, Omaha, for appellant.

Robert M. Spire, Atty. Gen., Lincoln, and Marie C. Pawol, Omaha, for appellee.

HASTINGS, C.J., BOSLAUGH, WHITE, CAPORALE, SHANAHAN, and GRANT, JJ., and COLWELL, District Judge, Retired.

SHANAHAN, Justice.

Robert E. Watkins was charged with burglary, in violation of Neb.Rev.Stat. § 28-507 (Reissue 1985), convicted as the result of a jury trial, and sentenced to imprisonment. Watkins claims errors in his trial, namely, (1) the district court's failure to direct a verdict of acquittal or dismiss the information filed against Watkins, and (2) over Watkins' objection, the district court allowed a rebuttal witness for the State to testify about Watkins' prior inconsistent statement to that witness. We affirm.

After shutting the windows and locking the doors of their house, Norman Terry Arndt and his family left to attend a fireworks display on the evening of July 4, 1986. Officers John Skanes and John Sherman, Omaha policemen on cruiser patrol, drove past the Arndt residence. From the cruiser, Officer Skanes saw a male standing in the shadows near a first-story window of the Arndt house, an unidentified individual who was holding a rectangular box, which the officer believed was either a "VCR or a stereo piece of equipment ... as if to be tugging on it and attempting to pull it down from the window." According to Officer Sherman, the individual "jumped back into the window, tugged on the cord once again, and came back down to the ground, and tried to tug again at the stereo," because the stereo's cord was still attached inside the house or somehow snagged in the window frame.

After turning the cruiser around in front of the Arndt house, Officer Skanes activated the cruiser's spotlight, which illuminated the area near the window and displayed the individual in its beam. Officer Skanes stopped the cruiser, got out, and ordered the individual to "stop and halt." By the cruiser's light and from some undisclosed previous encounter, the officers recognized the individual as Robert Watkins, who, having placed the stereo on the ground, at first walked and then ran behind the Arndt residence, with Officer Sherman in pursuit. When Watkins reappeared at the front of Arndt's residence and was running toward a house across the street, Officer Skanes shouted "Robert," and ordered the fleeing man to stop. Watkins complied. During a pat-down search of Watkins, Officer Skanes noticed a set of keys in the right front pocket of Watkins' pants. After Watkins was arrested, he was handcuffed by Officer Skanes and placed on the cruiser's rear seat. Officer Sherman later saw a set of keys on the cruiser's floor near Watkins' location on the rear seat.

Officer Skanes, accompanied by Officer Sherman, returned to the Arndt residence to ascertain whether anyone was inside the house, although the officers had not observed anyone but Watkins in the vicinity of the Arndt residence. Officer Skanes entered the Arndt house through the open living room window, at which the officers had first observed Watkins, and found the dwelling's interior to be "ransacked or in disarray." Crime lab technicians were called. Watkins was transported to police headquarters and booked on a charge of burglary.

During his case in chief, Watkins testified that he and Dwayne Black, a friend of some 4 years, spent the better part of July 4 drinking gin, vodka, and beer at Black's residence, directly across from the Arndt house. Watkins observed the Arndt family leave for the fireworks display. Around 10:30 p.m., Watkins noticed a man walking down the sidewalk near Arndt's home. Watkins knew Arndt and realized that the man on the sidewalk was not Arndt. As Watkins watched, the man went to the living room window on the north side of Arndt's house, pushed the window air conditioner into the house, and entered through the open window. Watkins became suspicious and suggested to Black that they investigate, but Black, who "didn't want to get involved," declined Watkins' suggested investigation and went into his house, which had no telephone, where he watched television.

Watkins crossed the street to the Arndt house and, on arriving at the open window, shouted to the man inside: "Hey, you better come on out of there." As the intruder was climbing through the open window, the stereo was knocked from the window ledge and dangled by its cord, which apparently had become caught in the window's frame. While the intruder descended from the window, Watkins became alarmed, threw his set of keys at the "burglar," and then requested that the burglar assist Watkins in locating the keys, which Watkins thought might be located somewhere in the dark on the ground beneath the window and the dangling stereo. Before long, the burglar suddenly ran away, leaving Watkins groping in the dark for his keys. As Watkins manually moved the dangling stereo in his effort to find his keys, the police cruiser arrived and illuminated the window area. As expressed by Watkins, "When they shined the lights on me, that's when I said, 'I'm getting out of Dodge.' " Watkins ran behind the house, and at trial explained: "If they wouldn't have shined the light on me, I would have stayed. But when they shined the light on me, they was going to accuse me of it anyhow.... Breaking in the house."

Dwayne Black, also a witness during Watkins' case, testified that he had observed the pedestrian stranger near the Arndt house, as recounted by Watkins. After Black went inside his house and Watkins went to the Arndt residence to investigate, Black never saw Watkins during the remainder of July 4. With the exception of his observing the stranger, Black denied any knowledge about the break-in at Arndts', although shortly before midnight Black learned that Watkins had been arrested. On cross-examination and over Watkins' objection, the prosecutor asked Black:

Q.... Isn't it true that when you spoke with Mr. Arndt and with Mr. Pottebaum on July 8th of 1986, four days after the time of the burglary of Mr. Arndt's house, didn't you tell them that you had information from a relative of yours that [Watkins], in fact, had committed the crime of burglary?

Black denied making such statement to Arndt. As the State's rebuttal witness, over Watkins' objection, Norman Terry Arndt testified that, 4 days after the burglary of his home, Arndt and Black were talking about the burglary. During that conversation, Black stated to Arndt that Black's brother-in-law had told Black that " 'Bobby did it.' ... [H]is brother-in-law told him [Black] he had seen him [Watkins] do it all."

Although Watkins had moved for a directed verdict of acquittal on account of insufficiency of evidence against him, the court overruled Watkins' motion and submitted the case to the jury, which found Watkins guilty of the crime of burglary.

MOTION: DIRECTED VERDICT OR DISMISSAL

Section 28-507 defines the crime of burglary: "A person...