State v. NullState v. Null
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- Before:
- Lanphier
Bill D. Null was convicted of attempted bribery and conspiracy to commit bribery following a jury trial in the district court for Sarpy County. The issue was whether Null and an accomplice, Barry Vogel, tried to bribe Papillion’s mayor to obtain the city’s keno operation. Null and Vogel were tried together. Null appealed to the Nebraska Court of Appeals, which affirmed his convictions. Null asserted that the Court of Appeals erred with respect to his bribery conviction by applying the wrong bribery statute, in determining that the trial court correctly determined that misdemeanor attempted bribery is a lesser-included offense of bribery, and in finding that Null offered to confer any benefit on Mayor Pete Goodman. With respect to his conspiracy conviction, Null asserts the Court of Appeals erred in overturning his coconspirator’s conviction and not his, leaving a “conspiracy of one, ” and in affirming the trial court in (1) not dismissing the felony conspiracy charge against Null when the bribery charge was reduced to a misdemeanor and (2) finding there was an overt act in furtherance of the conspiracy. Lastly, Null contends that he should have been granted a continuance by the trial court because of the late production of evidence. We granted Null’s petition for further review and affirm the holdings of the Court of Appeals.
I. BACKGROUND
On May 12, 1992, citizens of Papillion, Nebraska, voted to allow the city of Papillion to initiate a keno-type lottery in the city. During April and May 1992, Bill D. Null and Barry Vogel allegedly attempted to influence Papillion Mayor Pete Goodman to award the city’s keno operation. Null and Vogel were charged with bribery in violation of
II. ASSIGNMENTS OF ERROR
1. Bribery Conviction
Null asserts that the Court of Appeals erred in affirming his attempted bribery conviction by (1) concluding that
2. Conspiracy Conviction
Null further asserts that the Court of Appeals erred in affirming his conspiracy conviction by (1) overturning the conviction of Null’s coconspirator, Vogel, leaving Null “with the felony conviction of conspiracy of one”; (2) concluding that the trial court was not required to dismiss the felony conspiracy charge when it reduced the felony bribery charge to attempted bribery, a misdemeanor; and (3) finding that Null committed an overt act in furtherance of the conspiracy.
3. Refusal to Grant a Continuance
Finally, Null assigns as error the Court of Appeals’ order affirming the trial court’s refusal to grant a continuance due to the State’s failure to disclose certain tapes of conversations involving Null and Vogel until just prior to trial.
III. STANDARDS OF REVIEW
The question of whether the felony bribery statute was repealed by implication by the enactment of the misdemeanor bribery statute is a question of statutory interpretation. Statutory interpretation is a matter of law, in connection with which an appellate court has an obligation to reach an independent, correct conclusion irrespective of the determination made by the courts below. Rigel Corp. v. Cutchall, 245 Neb. 118, 511 N.W.2d 519 (1994); In re Application ofJantzen, 245 Neb. 81, 511 N.W.2d 504 (1994).
In reviewing a criminal conviction, an appellate court does not resolve conflicts of evidence, pass on credibility of witnesses, evaluate explanations, or reweigh evidence. Such matters are for the finder of fact, and the verdict must be sustained if the evidence, viewed and construed most favorably to the State, is sufficient to support the conviction. State v. Masters, 246 Neb. 1018, 524 N.W.2d 342 (1994); State v. Trackwell, 244 Neb. 925, 509 N.W.2d 638 (1994); State v. Hand, 244 Neb. 437, 507 N.W.2d 285 (1993).
In considering Null’s assignment of error regarding delayed disclosure of the tape-recorded conversations, we recognize that a trial court is vested with broad discretion in considering discovery requests of defense counsel, and error can be predicated only upon an abuse of discretion. See, State v. Phelps, 241 Neb. 707, 490 N.W.2d 676 (1992); State v. Boppre, 234 Neb. 922, 453 N.W.2d 406 (1990).
IV. ASSIGNMENTS OF ERROR REGARDING BRIBERY CONVICTION
1. Is Bribery a Misdemeanor or a Felony?
Nebraska has enacted two bribery statutes:
Null was charged with bribery in violation of
A statute may be repealed by implication when a new law contains provisions which are contrary to, but do not expressly repeal, the provisions of the former law. 1A Norman J. Singer, Statutes and Statutory Construction § 23.09 (5th ed. 1993).
While repeals of statutes by implication are not favored and a statute will not be considered so repealed unless the repugnancy between the new enactment. and the former statute is plain and unavoidable, where such a repugnancy exists, the new enactment will be deemed to have repealed the former statute by implication. State v. Retzlaff, 223 Neb. 811, 394 N.W.2d 295 (1986); State v. Roth, 222 Neb. 119, 382 N.W.2d 348 (1986). However, a construction of a statute which, in effect, repeals another statute will not be adopted unless such a construction is made necessary by the evident intent of the Legislature. State v. Roth, supra; Sarpy Co. Pub. Emp. Assn. v. County of Sarpy, 220 Neb. 431, 370 N.W.2d 495 (1985). Nonetheless, a legislative act which is complete in itself and is repugnant to or in conflict with a prior law repeals the prior law by implication to the extent of the repugnancy or conflict. American Fed. S., C. & M. Emp. v. County of Lancaster, 200 Neb. 301, 263 N.W.2d 471 (1978).
State v. Fellman, 236 Neb. 850, 857-58, 464 N.W.2d 181, 187 (1991).
In addressing Null’s argument, the Court of Appeals stated correctly that the doctrine of repeal by implication requires an initial determination of which statute is the former enactment and which is the new enactment. We note that the doctrine of repeal by implication also requires a determination of whether the provisions of the new statute are plainly and unavoidably repugnant to the provisions of the former statute. Fellman, supra. In determining whether the new enactment is repugnant, we look at the new enactment for any indication of an evident legislative intent to repeal the former statute.
The misdemeanor bribery statute,
(1) No person shall offer or give to the following persons anything of value, including a gift, loan, contribution, reward, or promise of future employment, based on an agreement that the vote, official action, or judgment of any public official, public employee, or candidate would be influenced thereby ....
For the purposes of the Nebraska Political Accountability and Disclosure Act, a public official is defined to mean an elected official in the executive or the legislative branch, or an elected or appointed official in the judicial branch of the state government or a political subdivision thereof. § 49-1443. Therefore,
The felony bribery statute,
(1) A person commits bribery if:
(a) He offers, confers, or agrees to confer any benefit upon a public servant or peace officer with the intent to influence that public servant or peace officer to violate his public duty, or oath of office, thereby influencing the public servant’s or peace officer’s vote, opinion, judgment, exercise of discretion, or other action or inaction in his official capacity ....
The term “public servant” as used in the Nebraska Criminal Code includes any officer or employee of government, whether elected or appointed.
In its opinion, the Court of Appeals determined that
These amendments may make
Repeals by implication are strongly disfavored.
State v. Retzlaff,
223 Neb. 811, 394 N.W.2d 295 (1986);
State
v.
Roth,
222 Neb. 119, 382 N.W.2d 348 (1986). There is nothing in the plain meaning of either
2. Null Was Properly Charged with Felony Bribery Rather Than Misdemeanor Bribery
The fact that two statutes, one a felony statute and the other a misdemeanor, may apply to Null’s alleged conduct does not provide grounds for reversal of Null’s convictions. “It is not uncommon for an act to constitute a violation of more than one crime, some of which may be lesser-included offenses and some of which may be separate and distinct.” Roth, 222 Neb. at 122, 382 N.W.2d at 351. As in Roth, this is simply a situation wherein a set of facts is sufficient to constitute the violation of one of several crimes. When a single act violates more than one statute, a prosecutor is free to choose to prosecute under any applicable statute so long as the selection is not deliberately based upon any unjustifiable standard such as race, religion, or other arbitrary classification. State v. Willett, 233 Neb. 243, 444 N.W.2d 672 (1989); Roth, supra; State v. Loschen, 221 Neb. 315, 376 N.W.2d 792 (1985).
As noted by the Court of Appeals, neither Null nor Vogel alleges that the prosecution relied upon any unjustifiable standard in determining to charge under the felony statute,
3. Trial Court Acted Properly by Reducing Charge to Attempted Bribery and Continuing with Trial
At the close of the State’s case, Null moved to dismiss because of the prosecution’s failure to prove a prima facie case establishing bribery and conspiracy to commit bribery. Vogel also moved to dismiss both counts for the reason that the State failed to introduce evidence on each and every element. The trial court took the motions under advisement after indicating that it was inclined to agree that the bribery charge would probably “go out the window” because of the lack of evidence showing that Mayor Goodman had actually been influenced in some fashion by Null or Vogel. The trial court stated that the lesser-included offense of attempted bribery still remained. Ultimately, the trial court submitted the case to the jury on the basis of attempted bribery as a lesser-included offense over Null’s objections. Null argued that the case had been tried before the jury on the issue of bribery. He therefore urges that to have it changed by the trial court to attempted bribery was a disadvantage because he was far more likely to be convicted of attempted bribery than bribery.
When it shall appear at any time before the verdict that a mistake has been made in charging the proper offense, the accused shall not be discharged if there appears to be good cause to detain him in custody; but the court must recognize him to answer to the offense on the first day of the next term of such court, and shall, if necessary, likewise recognize the witnesses to appear and testify.
In State v. Foster, 230 Neb. 607, 433 N.W.2d 167 (1988), we addressed the question of what happens when the State fails to submit enough evidence to make a prima facie case for the crime charged. In Foster, the defendant argued that the trial court must direct a verdict as a matter of law. We disagreed and held that where the State fails to demonstrate a prima facie case on the crime charged, but does so on a lesser-included offense, the trial court in its discretion may direct a verdict on the crime charged and submit the evidence to the trier of fact for consideration on the lesser-included offense.
To constitute a lesser-included offense, the elements of the lesser offense must be such that it is impossible to commit the greater without at the same time having committed the lesser. State v. White, 244 Neb. 577, 508 N.W.2d 554 (1993); State v. Williams, 243 Neb. 959, 503 N.W.2d 561 (1993). In determining whether a lesser offense is indeed a lesser-included one, a court initially does not look to the. evidence in a particular case, but looks only to the elements of the criminal offense.
It is the duty of the trial court to instruct the jury as to the law applicable to the case. White, supra. The trial court may instruct a jury, over a defendant’s objection, on any lesser- included offenses supported by the evidence and the pleadings. Id.; State v. Pribil, 224 Neb. 28, 395 N.W.2d 543 (1986). The trial court acted properly by continuing with trial and by instructing the jury on the lesser-included offense of attempted bribery.
4. Offer of Valuable Consideration
Null argues in his brief that he gave no money to Mayor Goodman, but merely offered him an interest in a corporation to be formed that would bid on the Papillion city keno lottery. Null and Vogel offered to sell the mayor a one-third share of the corporation in exchange for $1 and his influence over the award of the keno franchise.
Null states that
Even if
V. ASSIGNMENTS OF ERROR REGARDING CONSPIRACY CONVICTION
1. Conspiracy of One
The Court of Appeals reversed Vogel’s conspiracy conviction and remanded the cause for further proceedings. State v. Vogel, 94 NCA No. 20, case No. A-93-365 (not designated for permanent publication). In his petition for further review, Null asserts that he is now left with a felony conspiracy of one, relying on State v. John, 213 Neb. 76, 328 N.W.2d 181 (1982).
The Court of Appeals reversed Vogel’s conviction because the trial court refused to allow two character witnesses to testify on Vogel’s behalf. Null argues that the character evidence on behalf of Vogel would have created doubt as to whether Vogel was a party to any agreement. Null further argues that if Vogel was not a party to an agreement, then there could have been no conspiracy because conspiracy requires an agreement between two or more persons, but not a conviction of two or more persons. Null goes on to argue that if Vogel did not make an agreement, then Null had no other person with whom to agree, and without such an agreement, there can be no conspiracy.
The principal element of a conspiracy is an agreement or understanding between two or more persons to commit a wrong.
State v. Copple,
224 Neb. 672, 401 N.W.2d 141 (1987). In
John, supra,
we determined that in adopting
Even if we assume that the Court of Appeals’ reversal of Vogel’s conviction negates any proof of an agreement between Null and Vogel, Null is not left with a conspiracy of one. Null ignores the presence of a third party: Mayor Goodman. Under the unilateral approach to conspiracy, Null’s conspiracy conviction could rest on his own actions coupled with Mayor Goodman’s feigned agreement. Therefore, Null’s argument that he stands convicted of a conspiracy of one necessarily fails.
2. Failure to Prove Predicate Felony Does Not Require Dismissal of Conspiracy Charge
Alternatively, Null argues that the trial court was required to dismiss the felony conspiracy charge when it reduced the felony bribery charge to attempted bribery, a misdemeanor. The trial court did so because the State failed to establish one of the requisite elements of felony bribery, which is a showing that the public servant was actually influenced by the bribe. See
Bribery in violation of
The Court of Appeals rejected Null’s argument and noted that the point of the conspiracy statute is to strike at an agreement to commit a felony. Under
3. Overt Act in Furtherance of the Conspiracy
A person shall be guilty of criminal conspiracy if he or another person with whom he conspired commits an overt act in pursuance of the conspiracy.
“ ‘[A]n overt act, as something done pursuant to a conspiracy, tends to show a preexisting conspiracy and manifests an intent or design toward accomplishment of a crime. ... An overt act, by itself, need not have the capacity to accomplish the conspiratorial objective and does not have to be a criminal act.’ ”
State v. Anderson, 229 Neb. 427, 435, 427 N.W.2d 764, 770 (1988), quoting State v. Lafler, 225 Neb. 362, 405 N.W.2d 576 (1987).
As here, conspiracies frequently involve intricate situations and complex acts which make it difficult to establish by direct proof a conspiracy or conspiratorial intent. See State v. Copple, 224 Neb. 672, 401 N.W.2d 141 (1987). Circumstantial evidence may establish the existence of a conspiracy or the criminal intent necessary for a conspiracy. Id. Intent may be inferred from the words and acts of the defendant and from the facts and circumstances surrounding his or her conduct. Anderson, supra; State v. Ladehoff, 228 Neb. 812, 424 N.W.2d 361 (1988).
The overt act necessary to prove an intent to conspire can be silence which is designed to conceal the conspiracy. Copple, supra. In State v. John, 213 Neb. 76, 328 N.W.2d 181 (1982), we determined that the defendant’s acts of giving a business card to a person whom he believed could find a hit man for him, in meeting with the hit man, and in furnishing him with the proposed victim’s itinerary were overt acts with respect to a charge of conspiracy to commit a murder.
As the Court of Appeals noted, the bill of exceptions in this matter consists of over 600 pages of testimony and many hours of tape-recorded conversations. The evidence clearly established that Null approached Mayor Goodman and offered one-third of all profits and income of the keno operation in Papillion in exchange for the mayor’s assistance in making Null and Vogel the keno franchisors. The mayor was to accomplish this by appointing people to a nine-member keno committee that he could “control” or “manipulate.” The mayor would “put out the word” that Null and Vogel were the ones with the “right ideas” for the keno operation. Null and Vogel planned to establish a corporation to run the keno operation, and the mayor would be able to purchase a one-third share of the corporation for $1. These overt acts are more than sufficient to establish that Null acted pursuant to a conspiracy and manifest Null’s intent to bribe Mayor Goodman in order to ensure that he would be awarded Papillion’s keno operation.
VI. LATE-DISCLOSED EVIDENCE
Finally, Null assigns as error the Court of Appeals’ order affirming the trial court’s refusal to grant a continuance due to the State’s failure to disclose evidence until the first day of his trial. All of the evidence objected to was in the form of tape-recorded
The tape recordings were a subject of discussion in chambers on Monday, January 25, 1993, the-date the trial began. Null’s counsel stated that he had understood that tape recordings of three separate incidents would be introduced and protested the introduction of a fourth set of tape recordings. The county prosecutor stated that the existence of the tapes could have been determined from the police reports and that defense counsel had failed to ask for them during discovery. Defense counsel asked for a continuance in order to gain time to listen to the tapes and formulate a defense. The trial court denied the motion and ordered the State to furnish copies of the tapes to the defendants by 3 o’clock that afternoon. If the defendants determined that the contents of the tapes justified a continuance or suppression, then the trial court agreed to conduct a hearing the next morning before resuming trial. Counsel proceeded to select a jury and made their opening statements.
The next morning, Tuesday, another meeting was had in chambers regarding the tape recordings. Null’s attorney stated that he had received 14 audiotapes at 5 o’clock Monday and that he had been able to listen to most of them. Null himself had not been able to listen to the tapes due to the time constraint. Counsel argued that it was virtually impossible to assess and digest the information on the tapes adequately and requested a continuance or, alternately, a mistrial. The trial court noted Null’s “boilerplate” discovery requests and refused to grant a mistrial or a continuance. The trial court ordered the prosecutor to specifically identify the tapes that he intended to use and further ordered the prosecutor to avoid using any tapes prior to affording the defense the opportunity to listen them. The trial court instructed defense counsel to request continuances if they deemed it necessary after listening to any tape. No such continuances were requested. Further, Null offered no objection to the introduction of any of the tapes during trial on the basis of their late disclosure.
In his brief to the Court of Appeals, Null asserted that the trial court erred in refusing to grant a continuance. Null asserted that
A prosecutor’s duty to disclose evidence in response to a very general discovery request arises if the evidence contains obvious exculpatory characteristics.
State
v.
Tweedy,
224 Neb. 715, 400 N.W.2d 865 (1987). The Court of Appeals stated that
Without condoning the State’s failure to timely disclose the tapes, the Court of Appeals noted that Null had made no showing, or even argument, of how his preparation for his own testimony or cross-examination of the State’s witnesses was harmed by the late disclosure. Therefore, the Court of Appeals found no abuse of discretion in the trial court’s denial of Null’s motion to continue.
In his brief in support of his petition for further review, Null argues that he was in fact harmed by the late-disclosed tapes. Null states that the jury was selected before the defense had the opportunity to hear the tapes. Null claims that the new tapes contained much more profanity and sexist language than the previously disclosed tapes and that the county attorney had an advantage during the jury selection because he knew of their potentially prejudicial effect.
However, any prejudicial effect of the profanity’ and sexist language contained in the late-disclosed tapes was curable at trial. For example, defense counsel moved to suppress exhibit 12, one of the tapes, for the reason that it contained an offensive reference to
The trial court did not abuse its discretion in denying Null’s motion to continue. The court ensured that defense counsel had the’ opportunity to hear the tape recordings prior to their use at trial. The trial court invited defense counsel to request a continuance if the need arose during the trial. The court ordered the excision of an offensive statement when requested. Therefore, Null fails to establish any prejudice due to the late disclosure.
VII. CONCLUSION
Each of Null’s assignments of error being without merit, the judgment entered by the Court of Appeals in affirming Null’s convictions was proper, and it is, thereby, affirmed.
Affirmed.