*1
appellant.
Trevino,
appellee,
Nebraska,
v. Juan
State
Gregory J. Gregory Associates, P.C., J. Beal & appellant. Spire, Attorney General,
Robert M. Lynne R. Fritz for appellee. C.J., Boslaugh, Hastings, White, Caporale, Shanahan, JJ.
Grant, Fahrnbruch, J. Caporale, appeal
This arises from the consolidated trials of two cases jury. case, before a In the first defendant-appellant, Juan Trevino, adjudged guilty of the second murder of *3 Perez, Marco the use of a firearm to felony against commit that Perez, the attempted degree Heil, second murder of Mark and the use of a firearm felony against to commit that Heil. In the case, second adjudged guilty of a first upon assault using Heil and of a firearm in the commission of felony. that Trevino was thereafter sentenced imprisonment to on each convictions, of these part as detailed in V of the portion ANALYSIS of opinion. assigns errors, He 12 may which be claiming summarized as that the district court erred in (1) waiving jurisdiction not Trevino, of who was not quite years old at the crimes, time court, juvenile (2) finding the evidence support verdicts, sufficient to the (3) admitting evidence, certain (4) excluding evidence, certain and . (5) imposing excessivesentences. Weaffirm.
ANALYSIS Because of the breadth of this appeal, which embraces events from pretrial the refusal to jurisdiction waive in favor of the juvenile court to the imposition conviction, of sentences after record, shall, setting many facts first forth the of we rather than consider, turn, we each summarized deal with them as assignment of error. Jurisdiction
I. in not the court erred Trevino first asserts that district juvenile Rev. waiving jurisdiction over him to the court. Neb. 1985) provides, part, in relevant (Reissue Stat. 29-1816 § motion, it upon proper the district court shall consider whether years than of jurisdiction one who was less should waive of juvenile age alleged at the were committed the time the crimes proceedings the Juvenile Code. court for under Nebraska considering the provides further that after Section 29-1816 (Reissue 1978), Neb. Stat. 43-202.01 criteria set forth in Rev. § be (Reissue 1984), Stat. 43-276 case shall now Rev. retaining exists the case.” transferred unless “a sound basis following be 43-202.01 lists the matters to considered Section county determining to file a criminal attorney in whether charge juvenile petition: or court likely be
(1) The of treatment minor would most type such to; alleged (2) there is evidence that the amenable whether in an or was committed offense included violence manner; aggressive premeditated (3) motivation offense; age of minor (4) for the commission of the any others involved ages and circumstances of minor, offense; history of the (5) previous any previous of been convicted including whether he had so, and, juvenile if adjudicated in court offenses or against person whether such offenses were crimes history of relating property, previous and other behavior, any patterns of any, including if antisocial maturity violence; physical sophistication (6) home, his the child as determined consideration be activities, desire to attitude and school emotional adult, he has living, and whether pattern treated as an agencies and previous law enforcement had contact with thereof; there are (7) whether courts the nature *4 for juvenile to court particularly facilities available minor; (8) whether of the treatment and rehabilitation security public of the best the minor and the interest of may require custody that the minor continue in under supervision period extending beyond minority for a his and, so, if the available alternatives best suited to this purpose; (9) and such other matters as he deems relevant to his decision. previously
We have
determined that whether to waive
jurisdiction
proceeding
juvenile
over a criminal
to the
court is a
matter within the discretion of the district court and that such
will
appeal
decision
not be reversed on
absent an abuse of that
Ryan,
59,
discretion. State v.
226 Neb.
(1987);
school student at the testimony time of the crimes. Her also indicates, however, couple that the then had at one child least them, who resided with young family had traveled to Nebraska so that Trevino could employment provide secure family, family for his that the dependent upon was then Trevino support, and that participated partner aas with his raising wife in Reviewing their child. the considerations set 43-202.01, forth in the district court found that alleged violence, offense alleged included and is have aggressive been committed in premeditated an manner. . . . for the commission of motivation [T]hat clear, alleged offense is not but it is to have evil intent.. age . . juvenile of the eighteen, is almost [T]hat that the others people____ involved this matter older are. nothing before previous the court as to record at [T]here’s this time. But I slight consider that consideration at this juvenile time. . . . man, is a married and has [T]hat some sophistication maturity as indicated his coming work, to Nebraska to and he has been treated as an type adult. . . . of crime the facilities available [W]ith juvenile court particularly are not important to me. . . . juvenile, best interests of the particularly [T]he security public requires that he be continued in custody under supervision period extending beyond for a minority. his alternative, And that the available the best
[499] prosecuted as an adult. the defendant be alternative is that balancing in test provide 43-202.01 Sections 29-1816 and weighed against security are public protection which determining in problematical, rehabilitation practical, and not jurisdiction over a criminal be a waiver of whether there should Ryan, State supra; v. v. juvenile court. State proceeding to the (1983). The Alexander, 478, N.W.2d 297 Neb. 339 215 of rehabilitative and the duration probability of success determining whether detention treatment must be considered justice system or in the criminal juvenile justice will be in the Alexander, supra. The v. system. Ryan, supra; State State v. jurisdiction over a to waive may properly court refuse district juvenile court where the district proceeding to the criminal and makes a provisions of statute complies court with the specificity to findings provides sufficient statement of its which Stewart, supra. v. permit meaningful review this court. State compliance with these district court’s The record discloses the requirements. context, in the civil previously noted
As this court has
rulings
or
means that the reasons
“judicial abuse of discretion”
untenable, unfairly depriving a
clearly
judge
of the trial
are
right
denying just
result in matters
litigant of a substantial
Beer,
See, e.g., Wachtel v.
229 Neb.
disposition.
submitted for
Servs.,
392, 427
Soc.
(1988);
N.W.2d 56
D.S. v. United Catholic
Miller,
654,
v.
226
(1988);
227 Neb.
N.W.2d 531
Bittner
419
206,
v. Western
(1987);
Trevino’ssecond summarized determining was sufficient to district court erred in the evidence begin by noting making guilt. We support the verdicts of determinations, after a we are bound the rule that those guilty, and returned a verdict of has considered all the evidence law, not, appeal on may matter of be set aside that verdict as a evidence, if evidence sustains some insufficiency of the 500 Lewis, 224, 430 p. ante theory guilt. State v.
rational
Jackson,
843, 408
225 Neb.
(1988); State v.
686
N.W.2d
Evans,
433, 338 N.W.2d
215 Neb.
v.
(1987);
720
State
N.W.2d
Moreover,
determining
sufficiency
(1983).
788
conviction,
province
to sustain a
it is not the
of this
evidence
evidence,
credibility
pass
court to resolve conflicts in the
on the
witnesses,
plausibility
explanations,
determine
evidence;
weigh the
the verdict of the fact finder must be
if,
State,
taking the view most favorable to the
there is
sustained
support
Quiring, post
sufficient evidence to
the verdict. State v.
Jones,
528,
post p.
N.W.2d 243
v.
p.
(1988);
State
Bustos,
(1988);
post p.
The of these the which as follows establishes, compels the conclusion that the evidence overwhelmingly supports jury’s findings guilt each of the six and that the district court was thus correct its determination many challenging to overrule each of Trevino’s motions the evidence; thus, sufficiency of this Trevino’ssecond summarized assignment of error is without merit. morning 14, 1986,
At about 12:50 on the September Perez, brother, age Perez, Marco then and his Ramon then age stopped Madrid, about at the Madrid Tavern in Nebraska, something sister, for to eat. Mark Heil and his Melissa, traveling were with the Perezes in Ramon Perez’ driving together automobile and had been around for about Although may half an hour. there have been some beer the automobile, Perez, nondrinker, Ramon who is a had not any consumed of it. parked Ramon Perez his automobile on Street, slightly Main north and the west of Madrid Tavern and immediately north of parked pickup truck. passengers
All four in the Perez automobile then entered the Tavern, Madrid Harger where working. Chet was Trevino was among patrons already the several in the tavern. The two Perez brothers ordered some Harger. fast-food items from While the traveling four companions waiting, were Trevino asked them if they $1,000 would wager against care to ability glass drink a declined, of unidentified liquid; the four took their tavern a food, They had been inside the and left the tavern. 2 3 minutes. total of or and
Outside, between Perez automobile the four stood minutes, truck, Ramon Perez talking. several pickup After person leave the tavern. Trevino and another observed outside companion paused his carrying a sack. Trevino and was tavern, companion, to his and Trevino handed the sack vacant lot or northeast across a companion then walked north edge of the sidewalk disappeared. and Trevino walked said, Perez, tavern, at pointed handgun Marco near the here,” shooting. get and “You’d better the fuck out of started Trevino, knocking ground. him to the jumped Mark Heil at Heil, Trevino, by fired, rolled shot was then under Another Heil over onto sidewalk. tavern, Ross began emerge from the Nick
People then tavern, among moving them. Trevino toward started doorway. within the pointing gun his at the Ross retreated and told to call an ambulance. tavern someone inside shootings pointed Trevino then returned to the site of Lee, Shelly some gun at Jon Gilliland who had been his By Heil away talking other. time Melissa distance to each her, saying, screaming, his at pointed and Trevino was here, get Ramon Perez better she’s next.” out of “[Y]ou’d Melissa, automobile, then sent grabbed his moved behind help. running down Melissa the street truck, stopped had been pickup Gilliland in his which just north of the scene of the middle of Main Street on the shootings, speaking through open window with Lee *7 hour, up time of the side for half driver’s about a standing shootings. Heils Gilliland had noticed the Perezes and Then, pickup the truck. the Perez automobile and between Gilliland, according to bar, And out I heard the first shot.
A man came of the and there, thought at over I it was a firecracker we looked and Then, fired in this couple more shots first. there was direction, the time who pretty rapid. And I didn’t know at fell, he turned was Marco. And then it was but it him, there way, approached and around this and Mark . fired, Melissa couple and when was a more shots that’s my pickup. screamed and come back to hesitating, pickup Gilliland moved truck toward After his the gunman, pulling within 5 feet him. Gilliland looked at small, hand, carrying shiny right gunman, gun who was in his “ gunman for 10or 15seconds. The then told Gilliland to [l]eave ” shoot, get or I’ll and Gilliland off drove Heils’ father. away, From about 8 feet Trevino and Ramon Perez stared at time, each other for a then Trevino lowered his and moved east, off across a vacant lot to the toward the back aof building nearby. residential Police officers arrived minutes later. later, returning
Some minutes to the scene' with the Heils’ father, gunman running Highway Gilliland saw the on east Gilliland shootings. about one block north of the scene of the truck, gave pickup following gunman chase his east on Highway alley,closing then north an into to within 15feet of gunman getting gunman another look at face. The his fell, and Gilliland shootings returned to the scene of the police gunman’s notified the officers of the location. approximately At morning foregoing 1:10 on the events, County Department officers of the Perkins Sheriff’s responded originating to a “shots-fired” call in Madrid. When they call, received the then Sheriff Jim Crown Deputies Phillips Scott together and Todd Hatcher happened to be in a patrol approximately vehicle 2 miles west of Madrid on Highway call, 23. receiving Three minutes after the officers arrived gathered at the scene and found a crowd in front of the Upon approaching crowd, tavern. the officers observed lying Mark Heil ground, suffering on the from a wound to the neck. subsequently Hatcher lying noticed Marco Perez in the street, suffering from wounds to the head and chest.
Hatcher used patrol vehicle radio to summon medical assistance, nothing ascertained that there was he could do to aid himself, the victims and moved the vehicle so toas illuminate a nearby vacant lot. then approached Gilliland Hatcher and stated person shooting that the involved in nearby, on Highway later, other side of 23. Minutes as the ambulances arrived, Hatcher, Crown, Phillips began moving in the words, direction indicated Gilliland. In Hatcher’s *8 east, go and Sheriff Crown I went around the corner to — Phillips And I I believe Officer went east with me. don’t walking And down between point. was behind me at that buildings, subject running down on these two and a came angle And I straight an almost towards me here. hollered “Freeze” and about the same time Sheriff Crown hollered shoot, yelled back, kill “Freeze”. And he “Go ahead me” running swung kept around between here and east. suspect running normal like Hatcher observed that the “wasn’t person staggered step.” run. a normal would It was kind of runner, catching pursued Hatcher him at the back door of nearby building occupied Trevino and his residential then family. patted suspect Crown down and announced there suspect. Crown next gun; no then handcuffed the was Hatcher at the door from spoke appeared with two women who had wife, building, as within the one of whom was suspect back Phillips Hatcher and escorted the handcuffed time, patrol their vehicle. At Hatcher observed that toward surroundings suspect appeared of his and was “[u]naware may suspect it.” Hatcher felt the then have been kind of out of intoxicated; however, performed. were no tests of intoxication vehicle, suspect to their Phillips
As Hatcher and escorted the they Some members of the walked into the view of the crowd. Walrod, crowd, Gilliland, Ross, Raymond Harger, including Perez, Marten, approached the possibly Ramon two Todd officers, suspect them. the handcuffed between who held suspect person who had done Gilliland identified the as police present shooting. Neither at this time nor later did the view, any other persons photographs, with a nor with these persons suspects in these crimes. as deputies arrived in 15to 20 minutes after the
Approximately vehicle; Madrid, patrol he was suspect placed in the Grant, County jail in Phillips Perkins then driven Nebraska, Trevino. subsequently identified as and commenced Crown remained at the scene
Hatcher and present. searched investigation, speaking with those Hatcher an gun, shooting surrounding area for a and the the scene spent did find several none was ever found. Hatcher but immediate area of the cartridge cases .25-caliber of the Perez automobile shootings spent and a bullet in roof evidence, Photographs physical taken at the scene. were appeared well what to be bloodstains where each of the as as of been found. victims had *9 may person
The officers learned that a second have been however, shootings; the time of the this with Trevino around person never located. was 14, 1986, approximately September
At 10:20 a.m. on County jail. Trevino was booked into the Lincoln In the course jail prior admitting population, of a search him to the expanding point rounds of live .25-caliber Winchester weapon automatic ammunition were found on Trevino’s person.
During performing autopsy, Dorothy the course of an Dr. Wycoff, pathologist, spent an anatomic removed two bullets body. from Marco Perez’ She marked them for identification trial, Wycoff and turned them over to Crown. At testified that by death was caused bullet wounds to Marco Perez’ heart and lungs.
Investigator Bohaty, Mark a firearms and toolmark examiner with the Nebraska State Patrol Criminalistics Laboratory, spent cartridge casings testified that the four found shootings by police at the scene of the officers had all been fired from the same and were identical to the live ammunition person during booking, recovered from Trevino’s being all .25-caliber expanding point automatic shells and bullets by manufactured Winchester. Examination of the bullets body too, recovered from they, Marco Perez’ indicated that were .25-caliber expanding point bullets manufactured Winchester. serologist Betty
Forensic Jane Khreiss of the State Patrol Laboratory Criminalistics drops spatters examined or of blood jeans wearing found on the Trevino was when taken into custody. She determined type that this blood was the same group genetic terms of blood markers as Mark Heil’s blood, and not the same as Trevino’s blood. expert serologist forensic testified performed that the bloodstain tests were, opinion, Khreiss in his not expert reliable. Trevino’s admitted, however, opinion regard that his was the community. within the scientific dispute subject considerable booking 1986, was in the 3, while Trevino December On facility in Department County Sheriff’s the Keith room of facility, a to another awaiting transfer Ogallala, apparently a conversation deputy overheard Spanish-speaking sheriff’s inmate, jail Hispanic Trevino and another Spanish between man, what Hey, which was: English translation of “[Inmate] man.. . . They I killed a said you doing here? . . . are [Trevino] Yes, him and Well, I killed you it? ... did do [Trevino] [Inmate] he’sdead.” County jail Mahan, Hitchcock inmate at the then an
Thomas had, he out sentencing, as to a conversation awaiting testified January Saturday, others, evening of on the hearing of According jail. brought to that when Trevino Mahan, me, with discussing his case first started
When Mr. Trevino attempted for murder and he was in here he told me it, me that he didn’t do people. And he told murder of two with guy some that was partner me that his and he told it. him is the one that done *10 following
However, spanning the in a series of conversations Mahan Trevino told present, else was day, during which no one tequila with this other drinking some he was in this bar bought a He went over and guy, they got up to leave. and bag, paper and put beer was in a six-pack beer. And the this other And when him and they walking were out. So, laughing. they people heard some fellow were outside says... him, buddy, he tells his to and he he hands the beer And he told me of them”. going the shit out “I’m to scare gun up and held the gun, and walked over pulled he out his said, just And he he gun went off. guy’shead and the them, gun off and he the went up but walked to scare said, he couldn’t And then he safety was on. thought him, somebody jumping except much more remember got up he said that he him. And then he said he shot and cars run, running past some old he to and was and started something, run into and pallets or and some crates something. hid in tank or And then he some some bushes. said, ground thing And he he hit and next he knows buddy there, his friend helped or his or whatever was and picked up. gave gun they him He him split to and both got different directions. And then he up, said that he thing and said the next porch he remembered he was on his got and that’s when he arrested.
Following appearance a court succeeding day, on the Trevino repeated story Mahan, this but stated that he had run home following shootings given gun to his wife before he apprehended. Trevino also told plan Mahan about a persuade by presenting of his innocence himself with longer hair than he had had at the time shootings, glasses, with pretending in court to be left-handed. day, again The next following appearance, a court repeated story Mahan, the same of the crime to but time this told scene, Mahan that he had gun hidden the near the and he map showing drew a gun. Mahan, the location of the worried prospect continuing Trevino, to share a cell with then jail contacted officials. subsequently Mahan met with a County Hitchcock attorney, deputy, a sheriff’s and two investigators County office, from the attorney’s Perkins none of whom any asked Mahan to solicit additional information from Trevino. days later, Thursday,
Two yet on Trevino initiated another conversation with Mahan:
He started asking questions me gun about an automatic firing casings coming gun. out of the He couldn’t understand casings how the weapon got from the on the — sidewalk----He standing said he was way, this and held out his hand like this. And he said when the fired casings went way, figure and he couldn’t out how the casings up sidewalk, wound on the which was in the other direction. explained And I you to him that when fire an weapon, casings automatic back, should come out and straight instead out to the side. [of] *11 Mahan also stated that he had been offered no inducements by the County Perkins attorney anyone or else for his testimony, apart attempt from an keep his name out of the papers. Upon cross-examination, Mahan stated that Trevino defense things he had not told his Mahan said he had told attorney. and in-court the facts recitation of
Ramon Perez’ at were corroborated Trevino as the assailant identification of by Harger, well as three as by and Gilliland trial the Heils Martens, Ross, Walrod. patrons, bar turn, six consider, of Trevino’s each now We shall convictions. of Perez
1. Murder
guilty of second
earlier,
jury
found Trevino
first
As noted
Neb. Rev. Stat.
Marco Perez.
degree
in the death of
murder
person
A“(1)
follows:
1985) provides as
(Reissue
28-304
§
a
degree if he causes the death of
murder in the second
commits
Murder in
premeditation. (2)
intentionally, but without
person
felony.”
degree
IB
the second
is a Class
degree
of second
the essential elements
We have held that
maliciously.
purposely and
murder be done
murder are that the
As
Ettleman,
(1988).
2. Murder Firearm a firearm to guilty of use of The also found felony Perez, specifically, felony against a Marco commit (Reissue 28-1205(1) Stat. murder. Neb. Rev. second as follows: part in relevant 1985)provides any felony ... to commit firearm Any person who uses a state, any in a court of this may prosecuted which be during the firearm ... unlawfully possesses person who in a may prosecuted be felony which any commission using firearms offense commits the of this state court felony. commit *12 felony. gun previously, degree
As noted second murder is a A is firearm, obviously urge The a and Trevino does not otherwise. supports jury’s finding at trial that evidence adduced gun feloniously Trevino used a shoot and kill Marco Perez. Attempted
3. Murder of Heil jury guilty attempted The also found Trevino of second degree degree Mark murder of Heil. The crime of second murder, above, quoted felony. defined at 28-304 IB is a Class § (Reissue provides Neb. Rev. Stat. 28-201 1985) in relevant § part as follows:
(2) causing particular When a result is an element of the crime, person guilty a shall be attempt an to commit the if, acting crime with the required state of mind to establish liability with respect to the attendant circumstances specified crime, intentionally the definition of the he engages in step conduct which is a substantial a course of conduct intended or known to cause such a result.
(3) Conduct shall step not be considered a substantial under strongly this section it unless is corroborative of the defendant’s criminal intent.
(4) attempt Criminal is: (a) A felony Class II when attempted the crime is a . . . felony____ Class IB
The evidence jury’s adduced at supports implicit trial finding intentionally, that Trevino but premeditation, without neck, shot Mark Heil in the an act “intended or known to cause” Heil’s seriously death. It cannot argued, be and Trevino argue, does not intentionally the conduct of shooting person another in the anything neck demonstrates but one’s intent to kill person. See, also, the other Jackson, 843,408 N.W.2d 720 (1987).
4. Attempted Murder Firearm Use jury The next found guilty of use of a firearm to felony against Heil, commit a Mark specifically, felony attempted degree second 28-304, murder. defining Section degree murder, second 28-201, defining § attempt, crime of 28-1205, defining § the crime of use of a firearm to commit felony, quoted are above and hence need not be set forth again. The evidence adduced supports at trial jury’s implicit finding that Trevino to shoot Heil in the neck used a Mark attempt in an to cause Heil’s death.
5. Assault of Heil guilty degree The also found Trevino of first assault against (Reissue 1985) Mark Heil. Neb. Rev. Stat. 28-308 provides “(1) person as follows: A commits the offense intentionally knowingly causes assault the first if he bodily injury in the first person. (2) Assault serious to another felony.” degree shall be a Class III Grant, Potts, surgeon physician
Dr. L.C. from Nebraska, County Hospital attended Heil in the Perkins Mark According to emergency immediately shooting. room after the *13 condition, Potts, suffering paralysis Heil then in critical be a bullet from the neck down from what was indicated to to the wound neck. shooting, of he was
Mark Heil testified that as a result in an 3 months hospitalized spent for a month and additional V2 trial, year a half the time of a rehabilitation center. At of shooting, legs, no use of some use after the Mark Heil had his arms, ample There evidence to and no use his hands. is his of had jury’s finding Trevino support implicit that bodily injury to intentionally knowingly or caused serious Heil. Mark Firearm Use
6. Assault of a guilty of a use Finally, Trevino second found Heil, specifically, Mark felony against firearm to commit 28-308, defining first felony degree Section of first assault. assault, 28-1205, defining use of a the crime of and § already The felony, have been set forth. to commit a firearm finding used a that Trevino supports jury’s implicit evidence intentionally in the course of Heil in the neck to shoot Mark bodily harm to Mark Heil. causing knowingly or serious Admitted III. Evidence urges upon assignment of error next summarized admitting court erred in district the view that the this court in stated objections, repeatedly evidence over Trevino’s certain trial. limine, objections at suppress, motions to motions rulings (1) the district court’s complains Specifically, gunman Trevino as the admitting in-court identifications crimes, allowing testify Heil eyewitnesses (2) Mark testimony. admitting jury, (3) Khreiss’ within view of turn, mindful complaints of these We shall consider each is a matter the admission or exclusion of evidence overall that court, ruling not to be within the of the trial whose is discretion an of that discretion. State v. appeal disturbed on absent abuse Wells, Neb. 89, 425 (1988). N.W.2d 338 Eyewitness
1. Identifications gist argument as to the admission of the The of Trevino’s eyewitness identifications of Trevino was stated defense hearing: suppression at the “Mr. Trevino is taken into counsel custody, brought angry in handcuffs to an crowd. is himself see, only they Hispanic He’s the he’s handcuffed between officers, any say two what would crowd under those anything suggestive violating If be due circumstances. could process that would be.” process
A claimed violation of due
of law in the conduct of a
depends
totality
confrontation
on the
of the circumstances
Richard,
872,
surrounding
it. State v.
228 Neb.
N.W.2d 859
Denno,
(1988) (quoting
388 U.S.
87 S. Ct.
Stovall
Richard,
(1967)).
supra,
The to be factors considered the likelihood of *14 misidentification, test, aspect the first of the Richard are the opportunity of the witness to view the criminal at the time of the crime, attention, accuracy the witness’ the of the criminal, prior description certainty witness’ of the the level of confrontation, demonstrated the witness at the and the length of time between the crime and the confrontation. Richard, 188, 93 supra (quoting Neil Riggers, 409 U.S. S. Ct. 375, 34L. Ed. 2d 401 (1972)).
The evidence adduced at trial shows that each of the eyewitnesses ample had opportunity during to observe Trevino period of at leading up shootings, least 30 minutes to the during shootings, the immediately following shootings, and the subsequently ran off and was prior all to the time Trevino custody. of the the in While several returned to scene only attention until the eyewitnesses gave passing Trevino him. shootings attention fixed on place, took others had their Walrod, in tavern when Trevino particular, In who was the victims, the had his attention arrived and before arrival of words, when, there take drawn to in his “I see him over Trevino side, bring it gun from his coat on this underneath jeans and right in side underneath his around and stick [it] time, standing between 20 and shirt there.” At this Walrod was Trevino, nothing obstructed his view of 25 feet from shooting, After Walrod Trevino return to the Trevino. saw open previously at it. As point door of the tavern and his discussed, both Perez and Gilliland also had their Ramon significant periods attention fixed Trevino around the on for shootings appearance time of the and before Trevino’s later on custody. the scene in
Although attempts to make much of minor Trevino, eyewitnesses’ descriptions in variations eyewitnesses record all to these were shows that of the crimes remarkably describing young, consistent Trevino as a build, Hispanic having, height male of medium at the time crimes, remarkably of the Photographs short hair. of Trevino booking taken the course of some 9 hours after the crimes description. conform to this Both at the scene and later in court, eyewitnesses all who identified Trevino as the assailant high degree certainty exhibited a in their identifications. Finally, elapsed the amount of time which between the shootings subsequent and the “confrontation” between the Trevino, scene, was, eyewitnesses custody then at the accounts, clearly permissible all It was about minutes. eyewitnesses’ memory the district court infer that the they events had witnessed would be fresh and accurate after the passage of such a short time. test, ability aspect
As to the second of the Richard extrajudicial person making cross-examine identification, eyewitnesses we note that each of the him in crimes who identified Trevino at the scene or who viewed custody produced by prosecution at trial at the scene
512 subjected to cross-examination.
and urges eyewitnesses’ that the in-court identifications Trevino custody they had of Trevino in 20 were tainted the view contrary, shootings. The the after the evidence is to minutes eyewitnesses’ identifications were indicating that the in-court independent prior of observations made based on recollections to, during, immediately following shootings and before reappeared upon custody. in An in-court Trevino scene independent suppressed identification is not to be if based on an intervening untainted identifications. State recollection Richard, 872, 424 (1988) (citing N.W.2d United 228 Neb. Crews, 463, 100 1244, 63 States v. 445 U.S. S. Ct. L. Ed. 2d Furthermore, eyewitnesses who did (1980)). two to crimes scene, Heil, custody in not see Trevino at the Mark and Melissa positively also identified Trevino court as the assailant and subjected were themselves to cross-examination. Testimony
2. Heil In-Person of Mark argues Trevino next that Mark Heil should not have been permitted appear jury to before the injury disability
for the reason that ... would be [his] highly inflammatory they brought matter .... When Mark Heil in the incapacitated Courtroom a wheel chair, change in response there was a marked jury respect any consideration of the with evidence offered opinion after that time in the trial of the case in the of the defendant’s counsel. appellant
Brief for at 37. The record before isus devoid of regarding physical appearance evidence Mark Heil’s at the time similarly regarding of trial and jury’s devoid of evidence observable or otherwise communicated reaction to Heil’s appearance, proffered opinion of Trevino’s counsel notwithstanding. argument hand, seems to take two tacks: on the one appears argue physical appearance that Mark Heil’s “inadmissible”; other,
was somehow jury on the that there was improperly swayed by misconduct the sense that the Heil, upon sight presumably being emotion of Mark drawn to render a false verdict as a result. testimony regarding
It can be inferred from Mark Heil’s
legs
loss of the
use
his hands and
that Heil was not
independently ambulatory
required
some assistance in
taking
aspects
the stand. Such observable
of Mark Heil’s
postshooting
clearly
condition are
*16
relevant to the element of
bodily injury”
“serious
charge
contained in
of first
against
assault
Trevino.
28-308. It is within the trial court’s
§
discretion to admit or exclude
ground
evidence on the
relevancy,
rulings
upheld
such
will be
absent an abuse of
DeGroot,
101,
discretion. State v.
p.
ante
Neither anything is there in the support record to jury alternative contention guilty that the was of some sort of by misconduct permitting emotionally swayed by itself to be Mark Heil’s fairly considering rather than appearance, evidence. Woodward,
In 740, 745, 210 Neb. 316 N.W.2d (1982), court, commenting language on now found at observed, Rev. Stat. 27-606(2)(Reissue 1985), While may it is true that one inquire not as to whether presence juror’s mind, of the evidence affected the it is proper necessary that presented by evidence be objecting party to show that prejudicial extraneous improperly brought was jury’s information case, burden, attention. In this required to be carried by Woodward, was not met.
(Emphasis in original.)
Accordingly, the district court did not abuse its discretion in permitting to consequences observe the of Trevino’s actions.
3. Testimony Khreiss Trevino urges upon next this court the view that
the acceptance evidence over the defendant’s [Khreiss’] objection highly prejudicial and that a substantial miscarriage justice did occur. did not [Khreiss] determine specimen whether or not her had been Further, contaminated. she sample, consumed the entire so that her work not could be checked. She used a test very person unreliable
acknolwedged to be [sic] LEAA, Dr. grant from developed the test under who Grunbaum. Moreover, complains that at 44. appellant
Brief through her photographs taken produce “did not Khreiss her witness could examine the defendant’s microscope so that complaint is This second appellant at 43. findings.” Brief for brief in for, correctly points out its unavailing, the State as omitted), (citations at 33 record this court asked to indicate that she was nothing in the record there is defendant did not party____Further the do so either photographs either such request a continuance to obtain of Ms. Khreiss or cross-examination for his .... The testimony expert own witness subsequent of his vigorously counsel disclose that defense record does concerning for her Khreiss the basis cross-examined Ms. it based. opinion the facts on which was “sample” apparently regarding Khreiss’ Trevino’s assertions on the testimony concerning the bloodstains found relate to her *17 booked, which Khreiss wearing when stains jeans Trevino was genetic type and matched Mark Heil’s blood testified characteristics, but not Trevino’s. admitted into opinion expert properly of an witness is
The opinion technical basis of the evidence where the scientific or jury, the specific on which it is based are before and the facts opposing party opportunity has the to cross-examine and the matters. See State v. such witness as to these foundational Miner, 309, 343 (1984). N.W.2d 216 Neb. 899 Batchelor, 148, (1974),
In
515
149,
proper. Id.
testimony was
at
of the chemist’s
admission
In State Trombetta, U.S. 104 S. court, v. quoting California “ that ‘the Due (1984), concluded 81 L. Ed. 2d Ct. require does not Amendment Clause of the Fourteenth Process samples in order agencies preserve breath enforcement that law ” 541-42, breath-analysis tests trial.’ Vernon at to introduce at also, See, Youngblood, at 890. v. 356 N.W.2d Arizona _ U.S ___, 333, 102 (1988). 109S. Ct. L. Ed. 2d 281 expert testimony
Clearly, it is no of discretion to admit abuse necessarily a substance regarding analysis consumed or technical basis of testing, provided that scientific on which the of the case opinion specific and the facts expert’s jury that the are opinion is based before expert’s expert opportunity cross-examine the party has the opposing Miner, See, supra; v. matters. State these foundational as to Batchelor, Vernon, supra. v. supra; State State consumed stains Although performed Khreiss tests expert of Khreiss’ jeans, the scientific basis on Trevino’s the case regarding relevant facts of these stains opinion opportunity to had the jury, before the and Trevino were regarding or technical basis Khreiss the scientific cross-examine which it based. opinion specific upon of her facts performed by Khreiss complains Trevino also that the tests trial, opinion expert at not reliable. Trevino’s offered were weight it would accord this determined the expert was the “Dr. (We not opinion. note Trevino’s fact, court; in this in Trevino’sbrief Grunbaum” mentioned all, any testimony although his at “Dr. Grunbaum” offered no questions Trevino’s propounded was mentioned in name trial.) at counsel of error is without assignment third summarized
merit.
IV.Evidence Excluded *18 of error that assignment next asserts Trevino’s summarized testimony Dr. refusing of in to admit the district court erred refusing to certain and in admit Deffenbacher Kenneth private investigator. Compton, testimony of Hollis through testimony We deal with shall first offered Deffenbacher, and then with Compton’s. Testimony
1. Deffenbacher tp The district court sustained the State’s motion in limine proffered testimony of as to the exclude reliability Deffenbacher eyewitness of In testimony. proof an offer of outside jury, presence of the Trevino then set forth that Deffenbacher, professor psychology, testify a of would concerning perception Specifically, “human memory.” prepared testify high Deffenbacher was to that levels of stress memory with interfere for details stressful event that presentation high-stress of a in weapon a situation interferes with perception things other in In the situation. course proof, this offer of Deffenbacher that himself noted it is investigating memory difficult research scientists to words, simulate real-life In situations. Deffenbacher’s really tough simulating high The one is levels real life to, do might terror. To that one have without someone knowledge, aforeknowledge, else’s stick a in their illegal try face. That’s unethical. And so we to do our couple best. There have been a of field studies a where psychologist by right happened shooting after a takes place something. general try But in we to our do best people scare in ethically laboratory.
Moreover, sciences,
in the many behavioral social as in other sciences, is, probablistic scientific results are That there is a [sic]. stated, value particular in this I talking case be would typical about the typical person amount of effect on a Now, similar clearly any given circumstances. individual — might might have circumstance have variable th^ more effect on actually them or But being less. short of extensively given able test [sic], individuals the best prediction still as to how much affect that variable [sic] average would on him or her is the have amount of effect large obtained in studies obtained over number of people. probablistic information, it’s So but we use [sic] probablistic information a lot life to make [sic] justments things about we should do. [sic]
[517] admissibility expert of considered This court reliability eyewitness of regarding the opinion psychological Ammons, N.W.2d 812 Neb. State testimony in (1981): testimony is admissible expert rule is that general
The deliberations jury in its only will be of assistance if it of competency area not within relates to an scientific, technical, other or ordinary If citizens. of fact to the trier knowledge will assist specialized issue, fact in determine a or the evidence understand Rev. Stat. testimony may be admissible. expert by the testimony offered expert The .... 27-702 requirements. none of those case met defendant in this ais inaccuracy eyewitness observation accuracy of The testimony would daily life. Such experience of common jury. of the province invade the 814-15, 305 at 814.
Id. at N.W.2d Ammons, supra, by asserting: distinguish seeks to excluded [Ammons], the Nebraska Supreme Court In one basic for the reason there such evidence to make an ample opportunity who had witness accused, were and there of the independent identification In cases such as conflicting eye-witness accounts. not witnesses, no two of case, you have a multitude present incident. the same same account for give which Setting this mischaracterization at 46. aside appellant Brief for whole, be, already to on observed of what we have eyewitnesses testimony by variety to remarkably consistent crimes, point of this court’s brief misses the these holding Ammons. ability explain expert’s
Ammons is not concerned with the rather, but, expert’s with the inconsistency among witnesses understanding which is evidence jury in ability to assist the many howsoever experience, beyond of common the ken consistency or testify regardless of witnesses for the testimony. stands Ammons inconsistency of their jury how suggest to the expert to it is not for an proposition that not, evaluated; it is weighed or testimony be shall a witness’ offered. testify as Deffenbacher short, expert for an himself Deffenbacher alluded to two of the reasons for this First, investigations eyewitness rule. reliability cannot duplicate many conditions, real-world and it is with behavior real world that the court is concerned and the acquainted. It is ironic that example Deffenbacher chose as his of the research regard scientist’s limitation in precisely many eyewitnesses condition to which in this case had subjected: been faces, had been stuck in their creating a condition which Deffenbacher indicated would not be within the scope discipline’s of his power study. to re-create and
Second, knowledge scientists, of behavioral such as *20 psychologists, probabilistic, is couched in averages, terms of deviations, curves, standard groups. differences between A court, however, is not average eyewitness’ concerned with the reliability reliability but with the specific witnesses before it, may vary who average probabilistic from the in but ultimately ways. unknown It is not the research behavioral social position scientist who inis to specific assess a witness’ reliability; jury, which individual, views the witness as an is collectively determine, best able to on the basis of common experience yet human unsurpassed by as laboratory research, weigh how to what an say. individual witness has to This by issue is controlled holding this court’s in Ammons, supra. Clearly, the properly trial court exercised its in refusing discretion to receive testimony. Deffenbacher’s Compton
2. Testimony complains Trevino also of the district ruling court’s sustaining objection the State’s following question propounded through attorney his Compton: to —you Flave Q. reading after the statements and
making your investigation in this case and interviewing the you interviewed, witnesses that have your upon based examination crime, of the scene of the the manner in handled, which it was persons involved, you do have opinion an as to whether investigation or not the in this matter complete? you is And if opinion, have an please just yes state or no? —No, [Compton] me, yes, Excuse I opinion. have an opinion? is that And what Q. the court which objection, interposed an then
The State sustained. essence, investigating officers asserts, that
Trevino identify and locate they did more than could have done shortly with Trevino Tavern leaving the Madrid man seen other would Apparently, shootings occurred. these before at proof conclude, of an offer the absence have this court allowed, have been would trial, testimony, if Compton’s that such would argument that Assuming purposes of this effect. there would testimony, fact remains Compton’s been have guilt with Trevino’s It was such a statement. be no relevance to concerned, with the not was the trial or innocence produced investigation either investigation per se. That not, a it did finding guilt evidence to sustain sufficient clearly by against Trevino resolved question at trial. evidence adduced supported Sentences V. error, Trevino assignment of
Finally, in his last summarized are district court imposed that the sentences asserts and, in that a sentence specifically, general, excessive felony to commit a a firearm Trevino’suse of imposed twice for attempted murder Heil, regard to once with upon Mark regard with to assault. once the limits stated, within imposed frequently a sentence
As an absent as excessive will not be set aside by statute prescribed Lewis, ante sentencing judge. State by the discretion abuse of *21 Berkman, p. ante 224, (1988); 686 N.W.2d p. 430 635, Thomas, 229 v. (1988); State 310 430 N.W.2d Maeder, 428 229 Neb. v. (1988); State 428 N.W.2d sentence, should court atrial imposing a (1988). In N.W.2d mentality, age, the defendant’s consider, things, among other as background, and cultural education, and social experience, conduct, law-abiding or criminal record past as his well offense, the offense, nature the for motivation the crime. of commission in the violence involved amount of Thomas, supra. State Perez, the Marco of degree murder second For the crime of with imprisonment, to life district court sentenced solitary year September confinement each on 14. Neb. Rev. (Reissue 1985) provides Stat. 28-105 penalty that the for murder, degree felony, second a be as Class IB shall imprisonment years “Maximum-life imprison- Minimum-ten ment.” We find no abuse discretion in the sentence pronounced.
For the of attempted degree crime second murder of Mark Heil, the court imprisonment district sentenced Trevino to a for period years, consecutively of 15 to 30 be served degree sentence for second provides murder. Section 28-105 that penalty for attempting degree to commit a second murder, felony, “Maximum-fifty years as a Class II shall be imprisonment year imprisonment.” Minimum-one We find no abuse pronounced. of discretion in the sentence Heil,
For the degree crime first assault of Mark the district court years’ imprisonment, sentenced Trevino to 3 to 6 be concurrently served with attempted the sentence for second degree provides penalty murder. Section 28-105 that for a assault, first felony, a as Class III shall be “Maximum-twenty years imprisonment, twenty-five fine, thousand dollars or both.” We find no abuse of discretion in the pronounced. sentence
For the murder, crime of use of firearm in Perez a district court sentenced Trevino years’ imprisonment, to 3 all consecutive to sentences provides above. Section 28-105 that penalty for the use of firearm in commission of felony maximum years’ imprisonment, $25,000 is a of 20 or a fine, or both. We find no abuse discretion in the sentence pronounced.
Finally, crime of use of a attempted firearm the Heil, murder of Mark the district court sentenced Trevino 3to years, consecutively above; to be served to all sentences and for Heil, use of a firearm in the on assault Mark the district court years, sentenced Trevino to an additional 3 to be served consecutively to all sentences above. suggestion imposing multiple punishments
the form of two convictions for use of a firearm upon Mark single Heil in but a event somehow jeopardy offends double clause of the 5th Constitution, amendment to the U.S. as *22 to that applied to the states the 14th amendment Constitution, noted in Missouri support finds no in the law. As Hunter, 359, 103 673, 74 (1983), L. Ed. 2d 535 459 U.S. S. Ct. legislature specifically where a authorizes cumulative conduct, punishment proscribing the same under two statutes trial, may impose single in a seek and court prosecution, offending without the double punishment such cumulative to the U.S. jeopardy clause of the fifth amendment Constitution. defined in this 28-1205(3) provides:
Section “The crime separate be offense from section shall treated as and distinct committed, felony being imposed under the and sentences any other provisions this section shall be consecutive of imposed.” sentence language 28-1205(3), court of
This
has held that the
§
imposed
must be
effect that sentences under this section
felony,
consecutively
any
imposed
predicate
for the
sentence
sentencing
mandatory
within
discretion of the
is
and not
Stratton,
(1985).
Trevino was sentenced for of a person of Mark separate upon of two committed felonies sentencing for each separate Heil. Section mandates 28-1205 felony. The instance of the use of a firearm to commit predicate having guilty found Trevino of both of the distinct degree attempted and first offenses of second murder assault, imposed the district court consecutive sentences evidence, by the supported by law and the and mandated are no language again, Once we find abuse 28-1205. pronounced. discretion the sentence
DECISION assignments of any being There no merit to of Trevino’s error, the district court are judgments and sentences of affirmed.
Affirmed. Grant, J., dissenting part. only
I judgment affirming dissent from the of this court defendant’s convictions and sentences for the two crimes of *23 degree assault in the first and use of a firearm in the commission felony. of point by that The decisive on this issue is not raised defendant but plain seems to me to be such error it should be addressed. agree
I completely that defendant’s convictions and degree sentences as to the crime of murder in the second and the use of a firearm in the felony, commission of that in the murder Perez, of Marco agree should be affirmed. I also completely that the convictions and sentences as to defendant’s crime of attempted in degree murder the second and the use of a firearm in the felony, commission of that in the attempted murder of Heil, Mark should be affirmed. I believe it was error for the impose trial court to an additional conviction and sentence on degree firearm, defendant for first assault and use also arising from attempted murder of Mark Heil. As I facts, charge understand the attempted both the murder in degree charge the second degree and the of first assault rest on shooting defendant’s action in Mark Heil in the neck. court, The my judgment, action of this in constitutes a violation of right defendant’s not put to be “twice in jeopardy for the right same guaranteed offense” —a to defendant Const, Const, I, 12, art. and U.S. amend. V. That right encompasses right protected “against to be multiple punishments fbr the Pearce, same offense.” North Carolina v. 711, 717, 2072, 395 U.S. S. Ct. I, 89 23 L. Ed. 2d (1969). 656 therefore, respectfully dissent from the affirmance part of that of defendant’s conviction and sentencing. opinion
The majority rests, point large on this part, on this holding Lovelace, court’s 212 Neb. 322 N. W.2d 673 (1982), where we held degree that assault in the first is not a attempted lesser-included offense of murder in degree. second case, In the Lovelace the conviction of Lovelace for the degree crime of first assault was reversed and the case grounds dismissed on the that charged only Lovelace was with attempted degree murder in the second and the use of a firearm on the felony. ground commission of that The for the reversal charge apparently degree first assault dismissal of the rights, his constitutional been afforded defendant had not that never been degree first had in the the crime of assault in that defendant, determined this court since charged against attempted offense was not a lesser-included an assault such properly murder, never been defendant had second he was charge of which arraigned, tried on the charged, shield acted as a constitutional That determination convicted. due to be afforded requiring that he had the defendant in case The Lovelace he could be convicted. process before only, in that it in dicta jeopardy the double issue addressed offense, on the assault prosecution further of Lovelace invited separate to be a offense was held because the assault shield in Lovelace use of a constitutional distinct crime. That in the hands of to a constitutional sword has been transformed present case before us. the State majority opinion, that in Missouri recognize, I as does the 359, 368-69, 103 2d Hunter, Ct. 74 L. Ed. U.S. S. *24 Supreme the U.S. Court stated: (1983), far, Whalen v. United have utilized that rule Thus we [in 684, 1432, States, L. Ed. 2d 715 445 U.S. 100 S. Ct. 63 impose only power limit a federal court’s (1980)] Congress will is punishments when the convictions Here, Legislature made its the Missouri has not clear. courts, prescribe the crystal Legislatures, intent clear. not scope punishments.
Where, here, legislature specifically a authorizes as statutes, regardless of punishment under two cumulative conduct proscribe whether those two statutes the “same” States, [Blockburger United 284 U.S. 52 S. under v. statutory (1932)], Ed. a court’s task of Ct. 76 L. may prosecutor end and the seek and construction is at an jury may impose punishment cumulative the trial court or single under such statutes in a trial. holding imposition of a consecutive permits
That using degree murder sentence for a firearm both the second degree attempted second murder of of Marco Perez and notes, Heil, because, majority opinion as the Mark Nebraska, 28-1205(3) Rev. Stat. in Neb. Legislature (Reissue 1985), specifically provided has such cumulative punishment. Legislature, however,
The Nebraska not has authorized punishments cumulative for the same in attempting conduct assault, committing murder and an when those offenses arise case, from the majority “same conduct.” In this has used judicial interpretation of “lesser-included offenses” as springboard to impose cumulative sentences for the same offense.' I believe such action violates defendant’s constitutional, jeopardy rights. double I would reverse and dismiss defendant’s convictions for first assault and use of a firearm in I that assault. would affirm defendant’s other
convictions.
Boslaugh, J., joins in dissent. appellee, Nebraska, Bustos,
State of Jose Fernando
appellant. 432 N.W.2d 2, 1988. Filed December No. 87-624.