State v. Woods

• Citation: 255 Neb. 755,587 N.W.2d 122
• Decision Date: 18 December 1998
• Docket Number: No. S-97-642,S-97-642
• Parties: STATE of Nebraska, appellee, v. Tallulah WOODS, appellant.
• Court: Supreme Court of Nebraska

Page 122

587 N.W.2d 122

255 Neb. 755

STATE of Nebraska, appellee, v. Tallulah WOODS, appellant.

No. S-97-642.

Supreme Court of Nebraska.

Dec. 18, 1998.

Syllabus by the Court

1. Statutes: Appeal and Error. Interpretation of a statute presents a question of law, in connection with which an appellate court has the obligation to reach an independent conclusion irrespective of the decision made by the court below.

2. Rules of the Supreme Court: Appeal and Error. A petition for further review by the Supreme Court and supporting memorandum brief must specifically set forth 3. Appeal and Error. The Supreme Court will not consider errors not properly assigned in a petition for further review and discussed in the supporting memorandum brief.

and discuss any error assigned to the Court of Appeals.

4. Appeal and Error. An error in an opinion of the Court of Appeals concerning which no complaint is made in a petition for further review by the Supreme Court, but which is encompassed within the errors raised before the Court of Appeals and which, if uncorrected, would result in an erroneous direction for retrial of a cause, constitutes plain error for consideration on further review.

5. Appeal and Error. Consideration of plain error occurs at the discretion of an appellate court, and a party who fails to properly assign an error on further review does so at its peril.

6. Appeal and Error. Plain error will be noted only where an error is evident from the record, prejudicially affects a substantial right of a litigant, and is of such a nature that to leave it uncorrected would cause a miscarriage of justice or result in damage to the integrity, reputation, and fairness of the judicial process.

7. Moot Question. A case becomes moot when the issues initially presented in litigation cease to exist or the litigants lack a legally cognizable interest in the outcome of litigation.

8. Moot Question: Appeal and Error. The public interest exception to the rule precluding consideration of moot issues requires a consideration of the public or private nature of the question presented, the desirability of an authoritative adjudication for further guidance of public officials, and the likelihood of future recurrence of the same or similar problem.

9. Statutes. When statutory language is plain and unambiguous, no judicial interpretation is needed to ascertain the statute's meaning, so that, in the absence of a statutory indication to the contrary, words in a statute will be given their ordinary meaning.

10. Statutes. A statute, rule, or regulation is open for construction only when the language used requires interpretation or may reasonably be considered ambiguous.

11. Statutes. It is not within the province of a court to read a meaning into a statute that is not warranted by the legislative language; neither is it within the province of a court to read anything plain, direct, and unambiguous out of a statute.

12. Statutes. It is not for the courts to supply missing words or sentences to a statute to make clear that which is indefinite, or to supply that which is not there.

13. Criminal Law. Notice-of-alibi statutes are in derogation of the common-law traditions of criminal procedure, and must be strictly construed.

14. Statutes: Intent. Statutes which effect a change in the common law or take away a common-law right should be strictly construed, and a construction which restricts or removes a common-law right should not be adopted unless the plain words of the statute compel it.

15. Pretrial Procedure: Witnesses. In the absence of a specific statutory directive, Neb.Rev.Stat. § 29-1927 (Reissue 1995) does not allow a court to order the disclosure of the identity of a defendant's alibi witnesses prior to trial.

Dennis R. Keefe, Lancaster County Public Defender, and Robert G. Hays, Lincoln, for appellant.

Don Stenberg, Attorney General, and Kimberly A. Klein, Lincoln, for appellee.

HENDRY, C.J., and WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

GERRARD, J.

NATURE OF CASE

The appellant, Tallulah Woods, was, pursuant to verdict, adjudged guilty of acquiring a controlled substance by fraud. The conviction arose from an incident in which it was alleged that Woods went to a pharmacy and Prior to her trial, Woods complied with a statutory requirement by filing a notice of her intent to present an alibi defense. The State subsequently asked that Woods be ordered to disclose her potential alibi witnesses, and the trial court granted this request. Under protest, Woods complied with the disclosure order. This appeal presents the issue whether a defendant may be ordered to disclose the names of alibi witnesses, absent a clear statutory authorization.

picked up a prescription that did not belong to her.

FACTUAL BACKGROUND

Woods was charged by information with acquiring a controlled substance through fraud, in contravention of Neb.Rev.Stat. § 28-418(1)(c) (Reissue 1995). Violation of § 28-418(1)(c) is a Class IV felony, punishable, under Neb.Rev.Stat. § 28-105 (Reissue 1995), by up to 5 years' imprisonment, a fine of no more than $10,000, or both.

At some point prior to trial, Woods evidently filed a notice of intent to use an alibi defense pursuant to Neb.Rev.Stat. § 29-1927 (Reissue 1995), although such notice does not appear in the record on appeal. A hearing was held at which Woods' counsel advised the court that the alibi notice had been filed out of the 30-day time limit imposed by the statute. Counsel for Woods and the State later agreed to allow Woods to present an alibi defense, and the State waived any defect in notice.

The record also reveals that at the hearing, the court ordered Woods to disclose who her alibi witnesses would be. Woods then filed a motion asking the court to reconsider its alibi disclosure order. Subsequently, Woods filed an "Involuntary Disclosure of Alibi Witnesses," listing seven witnesses, including Woods; Woods' husband, Robert Woods; and Woods' daughter, Lakishia Jones. Thereafter, the State filed a motion asking the court to allow the taking of depositions from Woods' alibi witnesses. Following a hearing, the court overruled Woods' motion to reconsider and sustained the State's motion to allow depositions. The record does not reflect whether any witnesses were actually deposed prior to trial.

At trial, the State called Evangelisa Kingston, the person whose medication had allegedly been misappropriated. Kingston testified that she and Woods had become friends after being introduced by Kingston's granddaughter, who had lived with Woods for a time. Kingston had a history of medical problems that had required knee surgeries, the effect of which was to leave Kingston with "a lot of pain." Because of this, Kingston had been prescribed pain medications, including a medication known by the trade name "Darvocet."

Kingston said that she sometimes had people help her by picking up her medication and that Woods had been among them. Kingston testified that when this happened, Woods would pick up Kingston's prescription and bring it to Kingston, and the two would "share" the medication.

Woods' counsel objected to this testimony, arguing that it was character evidence of the sort prohibited by Neb.Rev.Stat. § 27-404(2) (Reissue 1995). Woods' counsel asked for an admonishment to the jury to disregard the statement and moved for a mistrial. However, the trial court did not admonish the jury as requested and overruled Woods' motion for mistrial.

Kingston further testified that Woods was no longer authorized to pick up prescriptions for Kingston. Kingston testified that the last time Woods had been given permission to pick up one of Kingston's prescriptions, the portion of the label indicating the quantity had been ripped off and Woods had taken more of the pills than she had indicated to Kingston.

Woods' counsel also objected to this testimony under § 27-404 and argued that this evidence could not be introduced without a hearing outside the presence of the jury as contemplated by § 27-404(3). The objection was overruled.

Finally, Kingston testified that on August 1, 1996, Woods had come to Kingston's house and asked if Kingston had any pills. Kingston reported telling Woods that Kingston did not have any pills because Kingston's Brady Brostrom, a pharmacist at the Walgreen's pharmacy, testified that during the morning of August 2, 1996, he was working the late shift at Walgreen's. Brostrom testified that between 7 and 8 o'clock that morning, he had dispensed a prescription filled for Kingston consisting of 30 tablets of generic Darvocet. Brostrom positively identified Woods as the person to whom he had given the prescription. Mary Amen, another Walgreen's pharmacist, testified that she had filled Kingston's prescription and that it contained generic Darvocet, which was a Schedule IV controlled substance.

new Darvocet prescription had not yet been picked up from her pharmacy, a Walgreen's drugstore located in Lincoln, Nebraska. Kingston said that she then specifically told Woods that one of Kingston's granddaughters was going to take Kingston to get the prescription the next day. When Kingston went to pick up her prescription, however, she was unable to do so.

Following Amen's testimony, the State rested. The defense called three witnesses: Woods, her husband, and her daughter. Woods testified that she had gone to see Kingston on the evening in question, but Woods denied asking Kingston about any drugs. Woods claimed that she had already obtained a prescription from her own doctor for Lorcet, which Woods said was a stronger medication than Darvocet. According to Woods, Kingston said nothing about a prescription.

Woods further testified that after leaving Kingston's house, Woods had gone home and then to her husband's place of employment, a local restaurant. Woods said that she remained there until after the restaurant closed, and then she and her husband went...