Summary
In State v. Meadows (1972), 188 Neb. 287, 196 N.W.2d 171, we said: "The problem concerning the admissibility of evidence of other offenses is a special aspect of the broad general problem of relevancy, and generally the test of admissibility of such evidence is whether the evidence is relevant and material to any issue on the trial, or whether it fairly tends to prove the particular offense charged or an essential element thereof."
Summary of this case from State v. BrownOpinion
No. 38254.
Filed April 7, 1972.
1. Trial: Continuances. The granting of a continuance is a matter within the sound discretion of the trial judge and a denial of a motion for a continuance will not be disturbed in the absence of an abuse of discretion. 2. Criminal Law: Trial: Evidence. The problem concerning the admissibility of evidence of other offenses is a special aspect of the broad general problem of relevancy, and generally the test of admissibility of such evidence is whether the evidence is relevant and material to any issue on the trial, or whether it fairly tends to prove the particular offense charged or an essential element thereof.
Appeal from the district court for Pierce County: MERRITT C. WARREN, Judge. Affirmed.
Thomas H. DeLay and Deutsch Hagen, for appellant.
Clarence A. H. Meyer, Attorney General, and Ralph H. Gillan, for appellee.
Heard before SPENCER, BOSLAUGH, SMITH, McCOWN, NEWTON, and CLINTON, JJ.
Appellant, Don L. Meadows, was convicted and sentenced for assault with intent to inflict great bodily harm and carrying concealed weapons. Appellant contended he was actually assaulted by the arresting officer, Robert G. Block, of the Plainview police department, and any resistance he made was in defense of his person. We affirm.
Appellant had several brushes with Block on occasions prior to March 20, 1971, when the present offenses were committed. Block testified that about 2 a.m. on the day in question he drove past appellant's home. A block past the home he noticed headlights coming behind him. He speeded up and the other vehicle did likewise. Block recognized appellant's automobile. When Block approached the main highway he saw a state trooper and blinked his lights to attract the trooper's attention. When he reached the highway he slammed on his brakes and ran back to the appellant's car. Block testified that the appellant raised a shotgun and said "`You are all done,'" or "`This is all for you.'" Block grabbed the barrel of the shotgun; drew his own gun, a .45-caliber pistol; fired a shot in the air and then hit the appellant on the head with the gun. The trooper arrived after the shot. They subdued appellant and searched him. They discovered two bayonets in the pockets of his field jacket. Neither of these bayonets was visible before the search. Appellant's shotgun was loaded with 12-gauge slugs.
Appellant testified that when he was stopped, Block said "`You're not going to follow me tonight,'" then flipped the latch on his pistol, grabbed the barrel of a shotgun which appellant was attempting to push down under the front dash, hit the appellant across the side of the head with the .45, fired a round into the air, then placed the muzzle of the .45 into appellant's throat and stated, "`You move, you * * *, and I'll shoot you.'"
The trooper testified that he heard the gun shot; came to the scene where officer Block and the defendant were stopped; drew his pistol; ordered appellant out of his car; frisked him; and found two bayonets in the coat pockets of the field jacket worn by appellant. Appellant was then arrested and charged with assault with intent to inflict great bodily harm and carrying concealed weapons.
Appellant in the cross-examination of Block developed the fact that Block had stopped appellant on three occasions prior to March 20, 1971. On redirect examination it was revealed that two of these encounters with appellant had resulted in arrests and convictions for misdemeanors. Appellant testified that he had been harassed and followed by Block on a number of occasions including December 14, 1970, January 1, 1971, and January 10, 1971. He testified that on the first occasion Block pointed a carbine at him when checking his driver's license; that Block would stop by the appellant's home and follow him; that he was in fear of Block; and on the morning of March 20, 1971, he was assaulted by officer Block.
Appellant alleges 11 assignments of error but does not discuss some of them in his brief. We refer only to those we deem merit discussion.
Appellant complains of the overruling of his motion for a continuance. This was made because the appellant was appealing the two misdemeanor convictions to the district court. These convictions arose out of encounters previously mentioned. This court has repeatedly stated that the granting of a continuance is a matter within the sound discretion of the trial judge and a denial of a motion for a continuance will not be disturbed in the absence of an abuse of discretion. See State v. Peterson, 183 Neb. 826, 164 N.W.2d 649. The disposition of the misdemeanor charges was not material to the question of defendant's guilt or innocence. The State could not have introduced those convictions in the first instance for any purpose. The trial court did not abuse its discretion in overruling the motion for continuance.
Appellant argues that the court erred in overruling his objection to Block's testimony on redirect examination as to the misdemeanor convictions. Appellant in his cross-examination of Block opened up the subject in developing his defense of harassment. The issue for the prosecution then became whether on these prior occasions the officer had reasonable cause to believe appellant had violated the law. Even the dismissal of the convictions in the district court would not necessarily suggest that the officer did not have reasonable cause to believe that appellant had violated the law. The testimony complained of is as follows: "Q Was he arrested that time also? A Yes, sir. Q Have either one of those cases, has the trial been held on them? A Yes, sir. Q What was the outcome of them? MR. DELAY: I object to the question, incompetent, irrelevant, immaterial, calling for incompetent evidence. THE COURT: Overruled, you may answer. A Found guilty. Q (By Mr. Webster) On both occasions? A Yes, sir. Q What Court was that in? A County. Q In Pierce County? A Yes. MR. WEBSTER: That's all."
The problem concerning the admissibility of evidence of other offenses is a special aspect of the broad general problem of relevancy, and generally the test of admissibility of such evidence is whether the evidence is relevant and material to any issue on the trial, or whether it fairly tends to prove the particular offense charged or an essential element thereof. Here, the evidence could only be received for the purpose of indicating that Block had reasonable grounds for stopping the appellant and did not do so merely for the purposes of harassment. It was appellant and not the prosecution who injected the issues of the December 14, 1970, and January 1 and January 10, 1971, incidents into the case.
In the context in which this case was tried, no one could consider appellant's guilt or innocence of the offenses as having a bearing on his propensity or disposition to commit the crimes of assault and carrying concealed weapons. The real question in connection with these other occasions was whether Block had harassed the appellant to the point that appellant was put in fear of his life and believed it necessary to carry weapons for his own defense. In this context we find the evidence was admissible on the issue of harassment.
There is no question in our minds as to appellant's guilt. The evidence is undisputed that he was following Block's car at 2 o'clock in the morning, without any reasonable explanation for being on the streets of Plainview at that hour. Nor is there any reasonable explanation why appellant had a loaded shotgun in his car and two bayonets in the pockets of his field jacket. Appellant testified the gun and the bayonets were not in his car earlier in the evening. He put them there at approximately 1:30 that morning. The most plausible inference is that he was looking forward to a showdown with Block.
The last assignment we consider is appellant's complaint on the refusal of the trial judge to permit him to testify about an encounter with Block some 7 weeks after the incidents involved herein. This assignment is without merit. The reason the court permitted testimony about the previous encounters was that appellant was trying to convince the jury he was acting in self defense, and, because of the previous incidents, he had reason to be afraid of Block. Such justification is entirely lacking with respect to any incident taking place after the incidents resulting in the present criminal charges. This subsequent episode could have no relevance to the crimes of which appellant was convicted, and the objection to such evidence was properly sustained.
For the reasons given, the judgment is affirmed.
AFFIRMED.