*1 190
McCown, J., dissenting to sentence.
The defendant here, at a hearing, single sentencing was sentenced to 10 on a years imprisonment forgery charge and 10 years imprisonment on a charge pos- session of a controlled substance deliver, with intent with the sentences to consecutively run rather than con- currently. The minimum sentence allowed law for each of the two 1 offenses was year. maximum sentence on the controlled substance was 10 charge years, and on the forgery count, years.
The defendant had no convictions and apparently criminal record to the prior here. sentencing She was old and the mother of two teenage daughters. In my opinion a maximum 10-year sentence on one count, and a sentence 9 years more than the minimum on the other, with the sentences to run consecutively, excessive for a first-time criminal offender under facts these cases.
State Nebraska, appellee, v. Barbara Jean Glouser, appellant.
226 N. 2dW. February 27,
Filed 1975. No. 39441. *2 Jr., Kurtz, for Walsh, appel- and R. Bernard William lant. Michael Meyer, Attorney General, A. H.
Clarence Johnson, R. for appellee. J., Spencer, Heard before Boslatigh, White, C. ' JJ. Newton, Brodkey,
McCown, Clinton, J. Spencer, of a for her conviction appeals possession
Defendant Defendant substance with intent to deliver. controlled are there of error. alleges assignments Essentially de- erred in overruling trial court only (1) three: over- motion to trial court fendant’s suppress; (2) it became ruled defendant’s motion for new when had misrepresented aware that State’s witness an credentials; the trial court (3) committed a clearly abuse of discretion excessive sen- imposing affirm. tence on the defendant. We contends affidavit
Defendant in support for suf- legally the search warrant application constitute cause for ficient the issuance the warrant. affidavit and for issuance application of a warrant police search made Omaha officer .1973,states, June so herein, far as material as follows: “That he has just believe, and reasonable grounds kept here- or does 'there concealed believe that Opium following property,
inafter to-wit: described, Marijuana derivatives, or derivatives, its or its Cocaine, any illegally possessed drugs, or and instruments administering drugs, for either the afore mentioned homemade or manufactured. property kept on, or in,
“That said or concealed following place person, about the to-wit: described - - old GLOUSER, Barbara Jean 33 Years White female - pounds. DOB 6 Jan 1940- 5 foot 4 OPD in. to 120 possession 70143 also she will have in her some suit # bags. cases and custody property
“That said is under the control or GLOUSER, Barbara Jean OPD 70143. # following grounds
“That the are of a for issuance property search for warrant said the reasons Sgt. his belief, to-wit: On 5 June 1973 R. R. Caruso telephone per- the narcotic office call received given son who has Officers the narcotic office *3 past good information the been has found to be reliable information and has resulted in the arrest of parties drug charges on several also has resulted recovery large drugs. the of of amounts narcotics and person flights taking The informant stated that a was Calif, Diego, leaving to and coming from San back day. party on the taking same Also this these flights just days apart. a few The informant stated the being party name this B. used was GLOUSER. Of- police R. arid photo ficers of a K. A. mug Wiese Miller took a party known them GLOUSER, Barbara Jean OPD party taking she was named as the # Calif, flights. flights the Diego, One was to San Friday on 1 June 1973 night. and she returned the same Calif, flight Diego, She then left aon Monday San on 4 June 1973 night with reservation to return the same flight. did not board this plane but She is on a now Calif, Diego, Tuesday which left morning San on June 1973 due to Omaha, arrive in Nebraska Tuesday The informant fur- 5 June 1973. 1335hours very amount small ther stated she travels with luggage. A. and K. It Wiese is known Officers R. is married to GLOUSER, Miller that Barbara Jean Larry police parties records GLOUSER, and both Drug Dept, past and narcotic with the Omaha Police Information from reliable state arrests. sources Larry is in the narcotic GLOUSER still involved City operation It the Officers within the of Omaha. is opinion bringing nar- GLOUSER, Barbara Jean is Calif, Diego, back cotics to Omaha from San requesting Mexico area. Officers are this search warrant person GLOUSER, order to search the Barbara any luggage might Jean and or all of the that she have.” presented Defendant contends there no information underlying in the affidavit which circum- shows stances from which the informant drew the conclusion's supply related and that the affidavit not does sufficient support reliability information to informant. In State v. LeDent Neb. 176 N. 2d W. (based upon) tip we held: For an affidavit from an magistrate sufficient, informant to be must be in- (1) underlying formed of some of circumstances from which the informant concluded that the narcotics they (2) were located where he claimed were, some underlying circumstances from which the officer concluded that the informant was credible. The affi- davit herein these meets two tests. Sufficient under- lying circumstances are set out and sufficient information support reliability given. of the informant We sight principle must lose of enunciated in Le- Dent: “Affidavits for search warrants must be tested sense, in a common realistic fashion.” *4 question Defendant also contends that the of the suf- ficiency hearsay affidavit, of the which is based on in- by supplied person, requires formation an unknown every subjected precise item the affidavit ju- to scrutiny, separately independently, dicial and to deter- muster. passes constitutional affidavit
mine whether the alleged de- Additionally, raises several defendant merit discussion. affidavit, the none .ofwhich ficiencies in Draper from too case, facts, is not different This its (1959), 329, 3 L. 307, Ct. S. 79 S. v. U. United States question was whether 327, 2d where the Ed. lawful where arrest, search, and seizure were the Draper a federal nar- involved. search warrant was agent by information informer, told whose cotics was petition- always agent accurate, found to be the er had agent who was described but whom the know gone peddling to had informer, was narcotics and the Chicago supply on a cer- a return obtain to day day agent the after. The tain train on certain recognized easily petitioner from the train, met description, arrested without warrant informer’s hypodermic him, and a him, searched and seized narcotics syringe possession. found his These were later ad- objection petitioner at mitted in evidence over the violating he a fed- trial at which was convicted Supreme held eral narcotics law. The Court that even agent if the' information received the in- hearsay, agent legally to former was entitled determining probable had it whether he consider meaning within the of the Fourth cause Amendment grounds Constitution, States United reasonable meaning C., 7607, of U. S. within the section be- petitioner committing had lieve a committed or was violation narcotic laws. The information in possession agent of the narcotic was sufficient to to grounds cause as well as reasonable show petitioner violating believe that or was violated justify narcotic laws arrest without war- subsequent arrest was lawful and rant. The search having seizure been made to a incident lawful ar- rest were likewise valid. v. Harris 403 U. 573,
United States S. 91 S. Ct. 2d 29 L. Ed. teaches that an affidavit for a
195 based on information may hearsay search warrant affiant so and need not reflect direct observations informed of some of the un- magistrate long conclu- circumstances the affiant’s' derlying supporting Harris, In Jones United sions. the affidavit unlike v. 80 4 725, U. S. Ct. L. Ed. 2d (1960), 257, States S. 697, not had aver the informant previously “correct information.” held this' was given The court essential when information. supported instant case is to Jones which did suf- analogous give ficient information for the re- to magistrate judge'the liability of the informant. United Spinelli 410, v. 393 U. S. States Ct. 21 L. Ed. 2d which is extensively
S. cited (cid:127) defendant, court said: “The detail provided by * * * the informant in Draper v. United States pro- * * * vides suitable benchmark. A when magistrate, detail, confronted with such reasonably could infer that the informant had his information in gained a reliable Footnote No. reads: “While Draper way5.” the' whether question police cause for an arrest a warrant, without the analysis required' an answer to this similar to question basically of a demanded he magistrate when considers whether a search warrant should issue.” n The affidavit herein was sufficient the is- justify suance the search warrant. It tó goes great lengths to outline the underlying circumstances from which the informant concluded the articles were located oh the per- in' son "or the' baggage of the defendant. Thé- flights arid the short intervals between departure return; Very the' small amount taken luggage on the flights; and the fact that flights were an area of known source, drug as .the well information the de- fendant and her husband had a history of association drugs, reasonably with indicate to a magistrate drug operation. underlying .circumstances which officer concluded the informant was credible given information reliable He had
are stated. as the well past, arrests as in several had resulted which Testing large this recovery of narcotics. amounts fashion, can sense, common realistic affidavit in come to amply It was sufficient but one conclusion: justify search warrant. major assignment the lower is that next
Defendant’s *6 overruling trial based for in her motion new erred newly court upon Hugh McGuire, a J. discovered evidence. heroin, the substance seized
chemist, who identified chemistry degree he a Bachelor’s in testified held that support graduate training. of her mo- taken and had Mr. McGuire adduced trial defendant tion new for Creighton degree from a Bachelor’s had not received University training per graduate taken and had not testimony. that neither defendant’s The court his found Douglas attorney county had reason to nor counsel believe as testimony at of the trial that McGuire’s the time to his credentials academic was inaccurate. The raised defendant on the motion for contention is that of new trial McGuire’s lack academic credentials expert incapable qualifying wit- him of as an renders any giving opinion of as to the result his an- ness alysis over- The lower court of the substance seized. “* * * trial, and held: there ruled motion new discrediting to conclude that rational basis degree not have a evidence that McGuire did graduate training work, in the not various tests were changed might the result.” even agrees discovery The of Mr. State McGuire’s newly of his credentials would constitute falsification evidence. issue is the effect of the falsi- discovered expert of an credentials. A fication witness’ motion for newly new trial for granted discovered evidence will not be the other where evidence is sufficient sus- newly tain the verdict. discovered evidence offered impeaching case is an character to in this discredit the witness. precise
While of the falsification the cre issue expert not heretofore been dentials witness has Jersey Superior presented court, to this the New Court Ginnelly precise issue in v. Con considered Super. Paper tinental Co. 57 N. J. 155 A. 2d qualified witness, There the who as a construction 154. engineer, falsely represented and construction graduated University been that he had Catholic degree engineering. in architectural In over with a ruling trial, the motion for new court held: “But fundamentally, more the test is whether the evidence of plea competent, probably conviction, if would undisputed judgment. In view of the alter fact years preparatory engineer that the witness had four ing engineering Stevens, four of architectural University (without receiving degree), at Catholic years’ experience engineering the construction and say prepared judge business, are not that the trial ruling abused his discretion that a correct statement Connolly’s qualifications probably alter the result.” refusing
Did the trial court abuse its discretion *7 to grant a new trial herein? In Finnern v. Bruner newly 170, 2d 905, 170 Neb. 101 N. W. we held: “The discovered evidence must offered would have of such be a natúre if probably
and at the former admitted it produced a substantial in difference result. competent, must be material, Such evidence and credible, merely It something and cumulative. must involve credibility other than the of witnesses who testified at appear the former trial. It must that the unsuccessful party knowledge néwly discovered evi previous dence at the trial and could not have discovered diligence.” it the exercise reasonable Wycoff (1966),
In State Neb. v. 146 N. W. 2d ordinarily “A granted we said: new trial will not newly produced, discovered which, evidence when merely impeach or will discredit a witness who testified of' the new evidence If result
at the trial.” verdict, a trial should be a different new would be granted. must be of such therefore, evidence, new Such positive that which to clear a render character important equivocal uncertain, and be so before was to the that-upon another as to -indicate issues probably be reached. different result will trial a that while McGuire does evidence shows adduced University, Creighton degree he has from not taken 135hours at that a university. passing general He achieved grades 1955 and 1960. His in 129 hours between average. average scholarship to below "Since that analysis drug extensive while has time, McGuire done particular toxicologist acting a a chemist and He was familiar with and Luthern Medical Cénter. recognized and available to conducted the several tests sample analyze presence'or for the. con1 absence principal are trolled substance. tests utilized known layer chromatography, spectral analysis, infrared as thin gas chromatography, analysis. spectral
and ultra-violet on-the-job training provided He took courses man necessary equipment ufacturers of to conduct these tests. including for the the defense,
Both witnesses State and qualified chemist at the Medical Lutheran Center lab- oratory, competent per- testified McGuire was accepted utilizing form tests instruments laboratory. equipment addition, in the Lutheran very persuasive evidence is while is several witnesses appropriate background academic relevant, it considerably important toxicology less area ability competence perform than the the tests. background training of McGuire’s The evidence adequate qualify more than him as an witness notwithstanding admitted lack academic credentials. *8 very at
McGuire’s cross-examination trial The lack of credentials, limited. academic in view training analysis background his extensive disqualified him have substances,' controlled would not judge: agree the trial We with witness. speculation would be to conclude “It sheer newly Mc- evidence have discredited would discovered probably produced that it have extent Guire a different ‘might changed it even result * * the result’ working laboratory in the McGuire been Mr. years. Medical Center for 13 Lutheran He had done ex- analysis drug working as a tensive while chemist and toxicologist, per to the extent some 500 month tests agree judge, 1971 and 1972. We the trial between with there is no rational basis conclude that the' discredit- ing degree that Mr. evidence McGuire have a training graduate or that various tests was not his changed phrase Or, work would have it, result. as we say record cannot this The new evidence controlling probably change is of so nature as to trial, result of former which is the we must test judge apply. trial did not abuse discretion in overruling defendant’s motion for a new trial. assignment
Defendant’s last of error is that the trial imposing clearly court abused its discretion in exces- years sentence. Defendant was sive sentenced to 10 con- Reformatory finement- State for Women. The charge possession minimum sentence allowed for the year, of a controlled substance- with intent to deliver is years. '§ Supp., and the maximum 10 28-4,125, R. S. Where, here, 1973. the court sets definite term of years, the minimum sentence becomes the minimum provided by § Supp., law. R. 83-1,105, S. 1972. There question judge give intended defendant penalty Obviously the maximum for the offense. he has not done so. sentencing sentencing herein was combined with a forgery given
on a conviction. The defendant was forgery maximum 10 on the conviction. This *9 200 years, the minimum
again being for a term of a sentence forgery year. was conviction on the is 1 The sentence imposed herein. the sentence to be consecutive with Actually, 1 sentences of defendant received two concurrently. consecutively years, to be served year as a to 20 sentence. effect is same net eligible parole consideration will Defendant years. expiration of 2 light Viewing record, in the the situation judge not abuse that the come to the conclusion judgment is affirmed. his discretion. The
Affirmed. J., as to McCown, dissenting sentence. hearing, single sentencing at a here,
The defendant forgery years imprisonment to 10 on was sentenced charge years imprisonment charge pos- on a and 10 deliver, of a controlled substance with intent to session consecutively than con- with the sentences currently. run rather The minimum sentence law for allowed year. each two offenses maximum charge controlled sentence years, substance was 10 forgery years. count, and on the apparently no The defendant had convictions prior sentencing criminal record 32 here. She was years daughters. teenage old and mother of two my opinion 10-year maximum sentence on one count, and a sentence 9 more than the minimum consecutively, other, on the with the run sentences to excessive for first time criminal offender under the facts of these cases.