*1
[433]
filing
disposition,
signed to move cases
from
disposition
by dismissal,
trial,
to be
or
whether
Fanning
Richards,
other method.
v.
The record shows no abuse of discretion.
judgment of the District Court is affirmed.
Affirmed. Jerry Nebraska, appellee, Evans, State L. appellant. Filed October 1983. No. 83-016. *2 appellant. Wefso,
James R. Douglas, Attorney General, Frank L. and J. Paul appellee. Hutfless, for C.J., Boslaugh, White, Hastings, Krivosha, JJ., D.J. and and Grant,
Caporale, Shanahan, J. Caporale, Jerry Following by jury, defendant, L. trial the burglary adjudged guilty Evans, and sen- Com- Penal and Correctional enced to Nebraska plex period than 30 for a of not less than nor more given credit for the 3 months and months. He was jail awaiting disposition days spent 16 case. We affirm. he assignments issues, as defined defendant’s (1) identifying error, Nebraska’s are whether (2) physical constitutional, act is (3) conviction, evidence is sufficient to sustain jury refusing charge the trial erred in court language in- of certain of defendant’s tendered (4) imposed structions, is exces- and the sentence sive. testimony approximately trial was that at July Hay 2, 1982,
a.m. on Paul Osborn entered his Springs, grocery Nebraska, store and discovered burglarized closing it had been since its previous day. stamps Over in food $700 cash missing, along with A merchandise. window lo- ground cated some 10 feet off the above a rear door person. had been broken such as to admit a small opinion highway patrolman, per- of a state two responsible being break-in, sons were for the one needed to lift the other to the window. Bloodstains glass. Fingerprints were found on the broken palm prints, old, less than 24 hours were found on throughout including tag store, various articles wrapper display pair gloves. or used of a grocery Defendant had not been seen in the store during regular working prior July 2, hours 1982. morning July 2,
At 6 a.m. on the Robert walking, McCarter, as he was out saw defendant and young boy speaking small, with each other. He *3 say boy, overheard defendant to the “It is over boy there.’’ The then walked to a steel shed. At nothing burglary. this time McCarter knew of the burglary After he heard of the he informed his Hay Springs mother, merchant, another about Osborn, incident. She informed Osborn. after hear- ing conversation, searched the sheds located by in the area which had been indicated McCarter. July 10, On in the shed which had been the sub- ject of the conversation between defendant and the boy, Osborn found merchandise which he believed to making have been stolen from his store. While purchase July 2, 1982, at Mrs. McCarter’s store on displayed currency. a thick of stack print glove
Defendant testified that his on was wrapper having pair as a result of his looked at a gloves shopping while in Osborn’s store. He denied any boy. recollection of a conversation with a De- unemployed fendant burglary, was at the time of the gloves prospective employment, needed for and his any, money testimony much, at he had if as to how in conflict. relevant time is by prepared July a Ne- an affidavit On patrolman to the Dis- was submitted braska state trict pursuant seeking Court, to the identi- order an act, fying physical Rev. Stat. characteristics 1979), (Reissue compel seq. defend- §§ 29-3301 et palm printing. fingerprinting and to submit ant judi- empowers certain 29-3302of that act Section authorizing identification to issue orders cial officers identifying obtaining purpose procedures physical provides: thereof Section characteristics. by may upon order issue “The (1) peace there is officer that affidavit of a has been commit- that an offense cause to believe (2) identifying procurement ted; of evidence of through physical nontestimonial par- procedures or from an identified identification ticularly may to the contribute described individual such the individual who committed identification of offense; (3) described indi- that the identified or refused, he is reason to believe has or there vidual voluntarily provide refuse, the desired evi- will identifying physical characteristics. dence contents augmented by may supplemented or
of the affidavit by persons or of other the affidavits magis- issuing judge testimony given or sworn trate.” burglary; the fact of the
The affidavit recited location, prints finding believed, their because of persons person commit- or to have been left ting burglary; overheard that defendant saying person, over stuff is “the to an unknown referring shed; there,” that merchandise to a burglary during grocery taken from the *4 that on affidavit also recited the shed. The found in voluntarily give July 6, 1982, was asked to defendant palm prints fingerprints sample of his requiring the de- refused. An order that defendant August 2, 1982. was entered on to so submit fendant palm August pursuant order, 3, 1982, On print was taken from the defendant which matched glove wrapper the one on the the store found on the floor of during burglary investigation. argues issue,
As to the first that his mo- suppress palm print exemplar, tion to taken pursuant him from to the order issued under identifying physical act, characteristics was errone- ously specifically denied. Defendant more constitutionally 29-3303is infirm in that it au- unreasonably by police him thorized to be seized au- thorities in violation of the fourth amendment of the I, 7,§ U.S. Constitution and article of the Nebraska urges opinion Constitution. He that our in State v. (1976), Swayze, wrong 197Neb. and should therefore be reconsidered and overruled. disagree. We Swayze recently born child was found aban wayside
doned a restroom at a state area. A large bedding amount of blood was found on in the room where the child was believed to have been suspects born. Police had four and received orders pursuant seq. samples §§ 29-3301et to obtain blood Swayze’s sample from each. blood matched that scene, found at the and she was convicted of assault appeal ques with intent to commit murder. On she constitutionality tioned the of the statute on fourth grounds. upheld and fifth amendment This court finding specifically statute, that Schmerber v. California, 384 U.S. S. 86 Ct. 16 L. Ed. 2d controlling. In Schmerber a man driving who had been arrested for drunk was com pelled give sample objection. a blood over his Supreme The U.S. Court found that his arrest was supported by probable cause and that since the exigency required present ac of the circumstances tion to obtain evidence of Schmerber’s blood alcohol proper level, it was a search incident to arrest. appears progenitor
It of statutes such as identifying physical our act is cer- *5 v. Mississippi, 394 U.S. in Davis dictum found
tain Davis, (1969). In 22 L. Ed. 2d 89 S. Ct. young of men roundup a mass conducted police seeking for the of purpose them fingerprint to order Court a woman. raped who had the individual conviction, that holding finger- Davis’ reversed was the re- during roundup taken exemplar print and should have seizure of an unreasonable sult what Court did not decide been suppressed. justify would a seizure of suspicion quantum for the sole “Detentions but stated: fingerprinting, subject are no less obtaining fingerprints of purpose Amendment. It the Fourth the constraints to that, however, na- unique because arguable, ture detentions such fingerprinting process, circumstances, defined narrowly under might, the Fourth Amendment even with comply found no the traditional probable there is though at 727. sense.’’ 394 U.S. states language, this several
Responding
officers
to issue
allowing judicial
statutes
adopted
per-
authorities
to seize
empowering
police
orders
in order
to obtain nontestimonial
identification
sons
See,
Ann.
Ariz. Rev.
Stat.
13-3905
evidence.
§
(1973);
(1978); 7B
Rev. Stat. Rule 41.1
Idaho
Colo.
(1979);
Code Ann.
810.2 et seq.
Code
Iowa
§§
§
(West
1983);
Stat.
15A-271
1979 &
N.C. Gen.
Supp.
§§
1978);
(Repl.
et
Utah Code Ann.
77-8-1
seq.
(Repl.
1982). See, also,
of Pre-Arraignment
Model Code
et
In most
seq.
Procedure
VIII at 669
app.
po-
the orders
an affidavit of a
upon
instances
issue
there is
cause to
probable
lice officer
committed;
been
believe
that an offense has
amounting
not
grounds,
there
are
reasonable
arrest,
suspect
person
cause to
committed
named or described
in the affidavit
offense;
nontesti-
specific
and that
the results
be of material
monial
identification
will
procedures
in the
whether
named
determining
person
aid
In
re-
only
the offense.
affidavit
committed
ported case we have
involving
found
a direct consti-
statute,
tutional
attack
on this type of
the statute
Madson,
(Colo.
upheld.
People
Defendant that unlike the above-cited stat- utes the one at requires hand no nexus between crime and the individual seized. respect this he is mistaken. We must bear in mind that where a constructions, statute is susceptible of two under one *6 valid, of which the statute is while under the other it is unconstitutional or of doubtful that con- validity, struction which gives it validity should be adopted. York, 747, Nebraska P.P. Dist. v. 212 City 326 (1982). N.W.2d 22 A similar process of interpretation was employed 13-3905, the Arizona by Supreme Court under their § which provides that an order the submis compel sion of an individual to nontestimonial identification procedures can issue on the by affidavit of a showing peace officer that “1. Reasonable cause for belief that a specifically described criminal offense pun ishable by at least year one in the state has prison been committed. 2. Procurement of the evidence identifying physical from an identified or particularly described individual may contribute to the identification of the individual who committed such offense. 3. Such evidence cannot otherwise by obtained officer investigating from either the law enforcement agency employing the affiant or the criminal identification division of the Arizona department of public safety.” Arizona interpreted language require showing reasonable exist grounds to connect de person tained with the crime being investigated. State v. 476, Grijalva, (1975), 111 Ariz. 533 533 P.2d cert. 873, 141, 104; denied 423 U.S. 96 S. Ct. 46 L. Ed. 2d Garrett, Long 397, 22 Ariz. 527 App. P.2d 1240 Court, Unlike the Arizona Supreme we are though, not willing follow the suggestion the Davis
[440] of compelling
for the purpose
seizures
dictum
under
evidence
identification
nontestimonial
fourth
either
under
permissible,
29-3303 are
§
7,
I,
or article
U.S. Constitution
amendment
Constitution,
of less
on a
Nebraska
to be
person
to believe
than
pro-
to submit
to identification
compelled
seized and
investigation.
the crime under
cedures
committed
U.S.
reading
by
led to this conclusion
We are
Missis-
decided after Davis v.
Court cases
Supreme
1394,
Ct.
L. Ed. 2d
U.S.
89 S.
sippi, 394
(1969),
cre-
dispel any speculation
effectively
which
above-quoted
ated
dictum.
by
York,
442 U.S.
99 S. Ct.
Dunaway
v. New
not told
2d
was
suspect
60 L. Ed.
by police
under arrest but was picked up
that he was
questioning.
Dunaway
and held for
officers
in-
his
after
information
supplied during
convicted
him.
motion to
Dunaway’s
incriminated
terrogation
was de-
suppress
by
obtained
seizure
Supreme
nied
state
U.S.
Court
courts.
reversed,
that Duna-
the State’s contention
rejecting
it
because
was based
way’s
permissible
seizure
did not amount
to an
upon
suspicion
reasonable
*7
application
“The
of
arrest.
The Court stated:
Fourth
of
cause
requirement
probable
Amendment’s
does
intrusion
of this
depend
not
on whether
an
law.
magnitude
is termed
an ‘arrest’
under
state
not
he was
petitioner
mere facts that
told
arrest,
‘booked,’
have
under
was not
and would not
had
if the interrogation
proved
an arrest
record
had
fruitless, while
for all
insignificant
purposes,
not
omitted],
obviously
not make petition-
do
[citation
narrowly
er’s
even
roughly analogous
seizure
its
intrusions
involved
in
Terry
defined
Indeed,
cover
that could
any ‘exception’
progeny.
as
in this
seizure
as intrusive
case would
to
rule
Fourth
general
threaten
swallow the
if
only
Amendment
seizures
are ‘reasonable’
based
on
cause.”
[441] In Florida v. Royer,_U.S._,
1319,
103 S. Ct.
(1983),
We find these cases persuasive reaching conclusion that the compulsion of a person by police officers them accompany to a police station or wherever, hospital, or and the forced submission to nontestimonial identification procedures, is a seizure of such a magnitude that more than mere suspicion is required. We read identifying physical act to require a showing of probable cause to believe the person to be so seized has engaged an articulable criminal offense prior to the judicial officer an order issuing pursuant 29-3303. As so interpreted, the act constitu- tional. It would be anomalous and indeed bizarre to require such prior the seizure of books, papers, objects, other but not for See, also, seizure of persons. A., Matter Abe N.Y.2d 437 N.E.2d N.Y.S.2d 6 *8 a case the reaching same conclusion.
[442] requiring inquiry order is whether
The next upon fingerprinting based submit was Evans to probable commit- that cause crime person commit- was the and that the defendant ted ting by guided inquiry in this the recent it. We are _ Gates, _, 103 S. Ct. of Illinois U.S. case v. (1983). 527 teaches that 76 L. Ed. 2d Gates probable necessary findings of for fourth pursuant are to a warrant seizures amendment eye interpreted an in manner with a commonsense totality The same can of the circumstances. findings under 29-3303. be said supporting the in case affidavit order this es- burglary and that tablishes fact that occurred shortly burglary the after that defendant seen boy, conversing that heard with a small and there” “the stuff is over were uttered words to a fruits of reference shed. The the burglary were found in same shed. de- later during Hay Springs, Nebraska, fendant was in time the burglary that the affi- occurred. We find to establish cause to davit was sufficient in the that was involved bur- believe the defendant glary. sufficiency evidence,
As to the of the the defendant principally since and circum- the facts reasonably susceptible interpreta- of two stances are they tions, of the must be resolved favor accused and therefore is insufficient to convict the evidence him. making principally argument
In
relies
he
upon
Earlywine,
191
215 N.W.2d
State v.
Neb.
arguing
the clear im-
he overlooks
so
port
Buchanan, later case
State
acknowledges
312 N.W.2d
which
may
some
of this
be found
while
decisions
court
create
State’s burden in
which
confusion as
case,
such a
courts,
the better
reasoned decisions
other
adopted
reasoning
Buchanan,
are
may
on
that one
crime
be convicted
accused of a
*9
if,
basis of circumstantial
evidence
taken as a
whole,
guilt beyond
the evidence establishes
a rea-
also,
See,
Rowe,
sonable doubt.
685,
State v.
214 Neb.
(1983);
Evans,
As observed State v. it is accept not for this court to one version of the case jury. another; determining over that was for the sufficiency of the evidence to sustain a convic- province tion, it is not the of this court to resolve pass credibility evidence, conflicts in the on the plausibility explana- witnesses, determine weigh tions, or the evidence. Such matters are for fact, the trier of if, and the verdict must be sustained taking State, the view most favorable to the there support is sufficient evidence to it.
Defendant’s claim that the evidence is insufficient support to his conviction is without merit.
Next,
the defendant
the trial court
refusing
charge
jury
language
erred in
through
of his tendered
Nos. 1
4.
instruction
How-
tendered instruc-
ever,
only with
deals
argument
his
assign-
4. Since consideration
1 and
tion Nos.
in the
to those discussed
error
is limited
ments of
instruction Nos.
brief,
address
tendered
do not
we
(Rev. 1982);
9D(l)d
See,
R.
Neb. Ct.
and 3.
(Reissue 1979);
Schug,
Flakus
Rev. Stat. §
491,
Defendant’s
on his
right
testify
that he had a
jury
inform the
behalf;
disregard
had no
jury
right
own
defendant,
was the
because he
testimony merely
his
true;
as
but
testimony
nor
it to receive
testimony
whether
it
to consider
required
*10
to ex-
The defendant
does not undertake
was true.
jury preju-
so instruct
how the failure
to
plain
that he
would
testify
his defense. The fact
did
diced
that he had a
jury
to the
the notion
convey
seem
Bartholomew,
As
in State v.
to do so.
stated
right
270,
error cannot be
Defendant’s tendered instruction No. simply the law as to how the was to consider cir- jury stated evidence. court’s instructions cumstantial re- informed the as to the law in that properly jury which is as set forth discus- gard, preceding sufficiency sion of the evidence. concerning the trial court erred Lastly, in not him on placing probation. presentence one. investigation of the defendant is not a favorable He a when history dating has criminal back he was 15 old. It has been the rule years long denying probation imposed an order and a sentence not be dis- within limits will statutorily prescribed appeal turbed on there an unless has been abuse of part sentencing judge. discretion on the of the State Patterson, v. The defendant was found lating 213 Neb.
guilty and convicted of vio- (Reissue 1979). § Neb. Rev. Stat. 28-507 This felony punishable by up years’ is a Class III prisonment, to 20 im- $25,000fine, or both. Neb. Rev. Stat. (Reissue 1979). § 28-105 Under the circumstances it cannot be said that there was an abuse of discretion prejudice which worked of the defendant. Affirmed. dissenting. C.J., Krivosha, regret I that I must dissent this case. IWhile completely portion majority concur with that of the opinion provides which that Neb. Rev. Stat. (Reissue 1979) requires per- that a crime has been committed and that compelled produce son the nontestimonial evi- dence has committed that crime before an order re- quiring give fingerprints may issue, one to I cannot agree case, that the evidence in this even when con- whole, sidered as a was sufficient to submit the case jury. presented to the to the tained a heard The circumstantial
jury glove wrapper is to the effect that a con- palm print accused; that he was over- saying young boy, there”; to a “It is over displayed currency that he a thick stack of while making purchase July palm print on 1982. The *11 wrapper pair was on a that had been around a gloves offered for sale and which the defendant had right to touch. The fact that no one could remem- my ber sufficient, that he was in the store was not any view, having placed to create inference of his palm print wrapper during his on the course robbery. pointing general Moreover, his in a direc- saying tion and “It is over there” are not sufficient goods to connect him with the fact that certain from the store are later found a shed a week after the burglary. goods, including gloves, No were ever possession any found in the or on property the defendant. or controlled owned may of a one accused crime it is true that While if, evidence basis of circumstantial on the convicted guilt whole, be evidence establishes as a taken yond doubt, is not re and the State reasonable hypothesis guilt, every quired disprove but that of Buchanan, 210 Neb. see v. State a conviction true that to sustain it is likewise beyond proved corpus must be delicti for a crime Workman, v. 213 Neb. doubt. State a reasonable 479, In one of order convict 329 N.W.2d burglary Neb. Rev. Stat. in violation of (Reissue 1979), produce must evidence to the State beyond prove willfully, doubt the accused a reasonable
maliciously, forcibly and en broke any improvements any real estate or thereon tered with intent any felony to commit or with intent any property of value. The State was able to steal only by requiring the elements of the crime establish leaps jury from one to make substantial faith my to another. bit of circumstantial jury asking view, than the should have it was more do, and, like decision in State v. asked to our been supra, Workman, have been dis the action should missed. joins J., in this dissent.
White, Bryan appellant, Wilson, v. Memorial Marvin appellees. corporation, al., et Hospital, a Nebraska Bryan Wilson, appellant, Memorial Ruth appellees. corporation, al., et Hospital, a Nebraska N.W.2d 796 83-070, 83-071. 1983. Nos. Filed October