State v. Aguilar

652 N.W.2d 894

264 Neb. 899

STATE of Nebraska, Appellee, v. Carlos AGUILAR, also known as Juan Carlos, Appellant.

No. S-01-733.

Supreme Court of Nebraska.

November 8, 2002.

Jim K. McGough, of Copple, Rockey & McGough, P.C., for appellant.

Don Stenberg, Attorney General, and Marilyn B. Hutchinson for appellee.

HENDRY, C.J., CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

McCORMACK, J.

NATURE OF CASE

Carlos Aguilar was convicted by jury of four counts of delivery of a controlled substance, all Class III felonies. During the trial, outside the presence of the jury, Aguilar objected to testimony that he characterized as prior bad acts. He argues that this evidence had not been subject to a Neb. Evid. R. 404, Neb.Rev.Stat. § 27-404 (Reissue 1995), hearing (404 hearing) and moved for a mistrial. That motion was overruled. After the jury returned its verdict, Aguilar moved for a new trial because of the alleged erroneous admission of certain evidence. In addition, he asserted the trial court erroneously allowed the jury to read transcripts of alleged drug transactions while the recording was being played. Aguilar timely filed his appeal.

BACKGROUND

Aguilar was charged with four separate counts of delivery of a controlled substance, methamphetamine. All four counts occurred between March and June 2000.

MARCH 25, 2000

The first count occurred on March 25, 2000. Ramon Rodriguez agreed to be a confidential informant for the Norfolk police, and he was to receive $100 for each attempt to make a controlled purchase of illegal drugs. Rodriguez was supervised by Officer Steven Mills. He was to attempt to purchase illegal drugs from a woman named "Yolanda" who lived in a trailer park near Johnson's Park in Norfolk. Before Rodriguez was sent to make the purchase, Mills searched his body, planted a tape recorder on him, and gave him money to make the purchase.

At about 8 p.m., Mills drove Rodriguez to a location near Johnson's Park near Yolanda's trailer. Tricia Frazier, Aguilar's girl friend, was at the trailer when Rodriguez arrived. Bobbie Kleinberg arrived at about the same time. While Rodriguez was inside the trailer, several other individuals arrived, including Aguilar. Kleinberg left, as did another individual, leaving only Rodriguez, Frazier, and Aguilar at the trailer. Later, Yolanda arrived.

After Yolanda arrived, Kleinberg returned and spoke to Aguilar. Kleinberg was going to "hook up" Aguilar with some drugs, i.e., get him drugs from a third-party source. Rodriguez then asked Yolanda if she had any drugs to sell him, but he was unable to purchase any drugs from her. Rodriguez then left the trailer, walked back to Johnson's Park, and made contact with Mills. Rodriguez was searched and informed Mills of what had transpired.

Rodriguez returned to the trailer at around 10 p.m. Before leaving for the trailer, Rodriguez was again searched by Mills and had a recording device planted on him. When Rodriguez arrived at the trailer, he observed Aguilar and Frazier. He asked Aguilar if he had any "coke" or "crank," and Aguilar stated that he was waiting for some. About a half hour later, Kleinberg arrived and talked to Aguilar about a possible drug purchase. Kleinberg then left. While she was gone, two other individuals came to the trailer.

Kleinberg again returned to the trailer, and she, Rodriguez, Aguilar, and Frazier left to obtain the drugs. The two other individuals left and went their own way. According to Rodriguez, he rode with Frazier in her van and they followed Aguilar and Kleinberg in her "Tracker" automobile. They drove to a parking lot by 12th Street and Prospect Avenue in Norfolk. Mills observed the van and the Tracker leave the trailer home, but did not follow them. According to Rodriguez, Kleinberg got out of the Tracker and went into a house across the street from the parking lot where they were parked. Aguilar climbed into the van.

Kleinberg later exited the house, walked over to Frazier's van, and climbed in. Once inside the van, she gave Aguilar the illegal drugs. Rodriguez, Aguilar, and Frazier then drove in Frazier's van to the apartment of Toni Shipley and went into a bedroom. According to Rodriguez, Aguilar separated a portion of the drug, which he concluded to be roughly an "eight ball" in quantity. He then bagged it up and sold it to Rodriguez. An "eight ball" is approximately 3 to 3½ grams of a drug. Rodriguez, Aguilar, and Frazier then drove back to the trailer in Frazier's van, and once they arrived, Rodriguez walked to Mills' vehicle and was searched. He gave Mills the drug and the tape recorder and told Mills what had occurred.

MAY 15, 2000

On May 15, 2000, Rodriguez met with Mills and another officer at approximately 7 p.m. Rodriguez was again searched, equipped with a recording device, and given money to make a controlled purchase. He was instructed to try to purchase another "eight ball" of methamphetamine from Aguilar. Rodriguez was let out of the car by Mills and walked down an alley to a house located on Indiana Street in Norfolk, where Aguilar and Frazier were residing. He knocked on the door and went into the home. He saw Aguilar, Frazier, and Shipley sitting at the dining room table smoking methamphetamine from a piece of aluminum foil. Rodriguez also observed an "eight ball" or more of methamphetamine in a plastic bag on the table. They began conversing, and Aguilar sprinkled more methamphetamine from the table into another piece of foil. He, Frazier, and Shipley proceeded to smoke the second foil. After the parties were finished smoking the second foil, Shipley left the home and Frazier went into the kitchen. Rodriguez then purchased methamphetamine from Aguilar. Aguilar picked the drugs up from the table, and Rodriguez paid him. Aguilar gave Rodriguez the drugs, and Rodriguez put them in his pocket. Rodriguez then left and met with Mills and told him what had happened. Mills searched Rodriguez and took the recording device and the drugs. Mills also took the leftover purchase money from him.

MAY 19, 2000

On May 19, 2000, Rodriguez was again instructed by Mills to purchase drugs from Aguilar. Rodriguez was searched, given the money to make the controlled purchase, and equipped with a recording device. He was instructed to go to the corner of Eighth Street and Norfolk Avenue, where a laundromat was located, to attempt the purchase. Mills and Rodriguez parked their vehicle a couple of blocks south of the laundromat, and Rodriguez walked to it.

Upon entering the laundromat, Rodriguez saw Frazier and spoke with her about purchasing an "eight ball" of methamphetamine. She had some methamphetamine and put it in her laundry basket. Rodriguez then placed his money in the laundry basket and took the drugs. He then walked outside and noticed Aguilar drive by in Frazier's van. He walked to the side of the building where the van was parked and stopped to talk to Aguilar. Rodriguez showed the methamphetamine that Frazier gave him to Aguilar, and Aguilar exchanged it for a larger amount.

After he was finished talking to Aguilar, Rodriguez found Mills. Mills searched Rodriguez and took the recording device and the drugs given to Rodriguez by Aguilar, and Rodriguez discussed what had happened. According to Mills, when Rodriguez was in the laundromat, he saw Frazier's van drive by, so he followed the van. He was able to observe Rodriguez and Aguilar talking at the van.

JUNE 6, 2000

The fourth count against Aguilar arose out of another controlled purchase of illegal drugs by Rodriguez on June 6, 2000. Before making the purchase, Rodriguez was again searched by Mills and was given purchase money and a recording device. Rodriguez testified that he was dropped off on the corner of Fourth Street and Omaha Avenue and that he walked to the Indiana Street location. He knocked on the door, went inside, and noticed Aguilar and Frazier sitting in the dining room playing a dice game. As Rodriguez was standing in the dining room, Aguilar pulled a Ziploc bag from his pocket, containing what appeared to be a gram of methamphetamine. In exchange for the bag, Rodriguez gave him $100.

Rodriguez later saw Mills and got into Mills' car. He gave Mills the drugs and the recording device and told Mills what had happened.

PROCEDURAL HISTORY

The recordings of the alleged transactions were duplicated onto compact discs, and transcribed by Rodriguez with the help of a police officer. Much of the recorded conversations were in Spanish, so Rodriguez translated the conversations into English, while the officer typed. The translations were verified by two interpreters.

According to Rodriguez, the recordings of the conversations at issue and the partial transcripts of those conversations accurately portray the conversations that took place during and around the time of the alleged transactions. Exhibits 41, 42, 43, 48, and 49 accompany the March 25, 2000, transaction. Exhibits 44 and 50 accompany the May 15 transaction. Exhibits 45 and 51 accompany the May 19 transaction. Finally, exhibits 46 and 52 accompany the June 6 transaction.

The trial court held a 404 hearing to determine whether the purported prior bad act evidence would be admissible at trial. The particular acts found relevant and admissible included (1) Aguilar's acquisition of drugs from Kleinberg on March 25, 2000, before selling drugs to Rodriguez and (2) evidence of Aguilar's smoking a foil of methamphetamine on May 15. The trial court found that the above events were proved by clear and convincing evidence and demonstrated opportunity, identity, and knowledge.

The trial court also found that there was a need for transcripts of the recordings and that it was within its discretion to allow them to be used. Aguilar argued that the recordings and the transcripts contained evidence of other acts committed by Aguilar that was not argued at the 404 hearing. The trial court noted that it wanted redacted compact discs and...