State v. West

• Decision Date: 18 May 1984
• Docket Number: No. 83-168,83-168
• Citation: 350 N.W.2d 512,217 Neb. 389
• Parties: STATE of Nebraska, Appellee, v. James M. WEST, Appellant.
• Court: Nebraska Supreme Court

Page 512

350 N.W.2d 512

217 Neb. 389

STATE of Nebraska, Appellee, v. James M. WEST, Appellant.

No. 83-168.

Supreme Court of Nebraska.

May 18, 1984.

Syllabus by the Court

1. Implied Consent Law: Blood, Breath, and Urine Tests. The regulations promulgated by the Nebraska Department of Health recognize that the holder of a Class B permit may test not only for alcohol content in breath but in blood and urine as well, and the tester to do so may use an Intoximeter Mark IV.

2. Criminal Law: Verdicts. Where one is charged with the commission of a crime which may be committed in a number of ways, a general verdict finding the defendant guilty of the crime charged is sufficient and is not ambiguous.

3. Juror Misconduct: Verdicts. In order for a verdict to be set aside because of the prejudicial effect of newspaper accounts on jurors, there must be evidence presented that the jurors read newspaper accounts and that the accounts were unfair or prejudicial to the defendant.

4. Juror Misconduct. The determination as to whether misconduct was prejudicial is to be resolved by the trial court on the basis of an independent evaluation of all the circumstances in the case.

5. Motions for New Trial: Juror Misconduct: Appeal and Error. A motion for a new trial upon the ground of jury misconduct is addressed to the sound discretion of the trial court, and a ruling made thereon will not be disturbed in the absence of an abuse of discretion.

6. Courts: Trial: Evidence. As a general rule, it is the province of the trial court in a jury case to determine the admissibility of the evidence offered by the parties at trial.

7. Courts: Trial: Evidence. Preliminary questions concerning the admissibility of evidence shall be determined by the judge. The court, and not the jury, is the arbitrator as to the admissibility of the evidence.

8. Sentences: Appeal and Error. In the absence of an abuse of discretion by the trial court, a sentence within the statutory limits will not be disturbed on appeal.

David E. Veath of Fisher & Veath, Chadron, for appellant.

Paul L. Douglas, Atty. Gen., and Michaela M. White, Lincoln, for appellee.

KRIVOSHA, C.J., and CAPORALE, J., and McCOWN and BRODKEY, JJ., Retired, and RONIN, District Judge, Retired.

KRIVOSHA, Chief Justice.

The appellant, James M. West, appeals from a judgment entered by the district court for Dawes County, Nebraska, following a jury verdict finding West guilty of unintentionally causing the death of Scott R. Smith while engaged in the unlawful operation of a motor vehicle. The trial court sentenced West to imprisonment in the Nebraska Penal and Correctional Complex for a period of 30 months, with credit given for time spent in custody. We affirm.

The record discloses that in the summer of 1982, West, then 19 years of age, was attending Chadron State College, Chadron, Nebraska. After attending two classes on the morning of August 27, 1982, West went to visit Scott Smith at Smith's trailer, which was located off-campus. The two later returned to the college, where they went to West's room in one of the dormitories. Once in the dormitory room, Smith and West and West's roommate spoke with some friends and drank some beer. Smith and West left the dormitory room at approximately 5:30 p.m. to eat supper. During the period of time they spent in the dormitory room, West estimated that he drank two beers. However, Delores Peters, who testified at trial, stated she observed West consume three or four beers during the 45-minute period she was there. After eating supper West and Smith went to the weight room of the college for a light workout. They then went to a liquor store where Smith purchased some beer.

At approximately 7 p.m. that evening West and Smith went to the room of James Mackley, where they stayed approximately an hour. While at Mackley's room, they all drank some more beer. They then left Mackley's room and again stopped at Smith's trailer, where they remained for about 20 minutes. There is no evidence that anything was consumed while there. They then left Smith's trailer and went to the Favorite Bar, where they remained until approximately 11:30 p.m. Mackley testified that West had at least two beers at the Favorite Bar, but further admitted that West may have had more. While at the bar, West had an altercation with an individual who was acting as a bouncer at the bar. The bouncer testified at trial that, in his opinion, West was intoxicated while at the Favorite Bar. When West and Smith left the bar at 11:30 p.m., Elizabeth Oates observed them walking across the street. Oates testified that, from what she saw, West was under the influence of alcohol at that time.

At approximately 1 a.m. West and Smith met a friend, David Danner, in the college parking lot. Danner got in West's car and they then drove to Smith's trailer. At some point, traveling toward Smith's trailer, they saw Debra Boyer walking beside the road. She was crying, and the boys offered her a ride. They turned around and drove down Maple Street. At approximately 1:40 a.m. West's motor vehicle violently struck a parked truck. As a result of the accident, Scott Smith was killed and Debra Boyer, David Danner, and West were injured. West was taken to the Chadron Community Hospital and placed under arrest.

At the hospital Officer Jeffery read West the implied consent form, and West elected to take a urine test. At approximately 4:40 a.m. Officer Jeffery obtained a urine sample from West and put it in a container obtained from a lab technician. Jeffery then took the sample to the sheriff's office, placed it in a box, labeled the containers, and put the box in a refrigerator. Officer Jeffery then went back to the scene to continue his investigation. He measured skid marks of 67 feet in length from the point of impact on the truck to the resting point of the car.

On August 30, 1982, West's urine sample was tested by Officer DaMoude. At trial Officer DaMoude detailed the procedures he followed in testing the sample. He further testified that the sample produced a value of alcohol of .299 percent. As a result of the test, West was charged with motor vehicle homicide in violation of Neb.Rev.Stat. § 28-306(1) (Reissue 1979). West entered a plea of not guilty, and the matter ultimately came on for trial. In addition to the testimony of Officer DaMoude as to the results of the urine sample, a number of witnesses were called to testify. All but one of them testified that, in their opinion, at the times they saw West, either before the accident or immediately following the accident, he appeared to be under the influence of alcohol.

West now claims error as follows: (1) The trial court erred in admitting the results of the urine test, on the ground that the test was not conducted under a method authorized by the state Department of Health, and further upon the ground that the person conducting the test did not have a valid permit at the time the test was conducted; (2) That the verdict was unclear and ambiguous in that it did not indicate the specific grounds upon which West was found guilty; (3) That the defendant was denied a constitutionally fair trial on the ground that the jury read a newspaper account of the case during the trial; (4) That the court erred in not giving a jury instruction concerning the techniques used in conducting the urine test; and (5) That the sentence imposed was excessive.

West bases his first claim upon the argument that at the time Officer DaMoude performed the urine analysis, the Class B permit which he held did not authorize him to conduct tests pursuant only to method 3-A5, the method in fact used to analyze the urine, but, instead, authorized him to conduct urine tests pursuant to method 3-A2. While the permit first issued to Officer DaMoude did list method 3-A2 instead of 3-A5, the record is clear that this was a typographical error and that subsequent to the time the 3-A5 test was conducted, but before trial, the Department of Health issued a new permit to Officer DaMoude correcting the permit to list the 3-A5 method. The permit was reissued retroactively, so it became effective prior to the time that Officer DaMoude performed the test on the defendant's sample. Furthermore, it is clear that Officer DaMoude did, in fact, receive authorization from the state Department of Health to perform the 3-A5 test, though the permit issued to him was in error in that regard. The statute in question, Neb.Rev.Stat. § 39-669.11 (Reissue 1978), provides for the conditions under which such a test will be admissible in evidence. The statute provides in part:

Tests to be considered valid shall have been performed according to methods approved by the Department of Health and by an individual possessing a valid permit issued by such department for such purpose. The department is authorized to approve satisfactory techniques or methods and to ascertain the qualifications and competence of individuals to perform such tests and to issue permits which shall be subject to termination or revocation at the discretion of the department.

It is clear that the state Department of Health ascertained the qualifications and competence of Officer DaMoude and determined that he was competent to conduct tests pursuant to the 3-A5 method. The error in the certificate did not change that fact. A certificate is merely one of the methods whereby the fact that a permit has been issued can be determined. At the time that the test was conducted, Officer DaMoude did in fact hold a valid permit issued by the Nebraska Department of Health, though the language of the permit, due to a typographical error, was incorrect. We do not believe that this made Officer DaMoude's authority invalid, nor did it invalidate the test. To so hold would be to carry form over substance to a ridiculous extreme. Typographical errors have been considered by other courts, and where it is clear that the document, through a scrivener's...