State v. Gray

606 N.W.2d 478

8 Neb.App. 973

STATE of Nebraska, appellee, v. Graylin GRAY, also known as Graylie Gray, also known as Oscar Gray, appellant.

No. A-99-120.

Court of Appeals of Nebraska.

February 1, 2000.

Sean J. Brennan for appellant and, on brief, Graylin Gray, pro se.

Don Stenberg, Attorney General, Lincoln, and Kimberly A. Klein for appellee.

IRWIN, Chief Judge, and SIEVERS and CARLSON, Judges.

SIEVERS, Judge.

Defendant Graylin Gray, after waiving counsel and choosing to represent himself, was convicted of second degree forgery. Gray was found to be a habitual criminal under Neb.Rev.Stat. § 29-2221 (Reissue 1995) and was sentenced to 10 to 20 years' imprisonment as required by the mandatory sentencing provision of the habitual criminal statute. Gray appeals the conviction, asserting eight assignments of error. Our opinion deals mainly with the extent to which a trial judge may properly become involved in the presentation of evidence against a defendant.

I. BACKGROUND

On April 15, 1997, Gray, along with Sonny Havlicek and Freedom Woods, were taken into custody for their involvement in a forged check cashing plan. The plan involved going to various National Bank of Commerce (NBC) drive-up teller windows and cashing forged checks drawn on an account owned by Bluestem Books. Woods drove the vehicle, and Havlicek posed as Teresa Devall, the check payee, while Gray orchestrated the plan from the backseat. Gray would pass the checks from the backseat up to Havlicek. Havlicek, posing as Devall, would then give the checks and Devall's identification card to Woods, who would then present the checks for payment. This process was repeated three times at three separate bank locations. The trio then proceeded to the NBC bank location at 40th and South Streets in Lincoln, Nebraska, where they attempted to cash check No. 1487 drawn on the Bluestem Books account in the amount of $855.10.

The teller at this location had been advised to hold any checks written on the Bluestem Books account. The teller notified her supervisor that Bluestem Books check No. 1487 was being presented for payment, and the police were notified. The police arrived shortly thereafter and took Gray, Woods, and Havlicek into custody, but Gray was later released.

The police searched the vehicle used in the plan and found several items on the floor in the backseat area where Gray had been sitting. These items included two identification cards (one belonging to Devall), a newspaper, several checks from the Bluestem Books account, and two pages from the Lincoln telephone directory yellow pages listing the locations of NBC banks. The police also found three envelopes of cash obtained from the three prior Bluestem Books checks which were cashed at other NBC bank locations.

Initially, Havlicek claimed Woods and Gray had nothing to do with the check cashing plan. However, on April 17, 1997, Havlicek confessed the plan and disclosed Gray's involvement in a statement given to Officer Erin Sims of the Lincoln Police Department. Havlicek stated that she owed Gray money and that Gray had developed the check cashing plan as a way for Havlicek to repay the debt. Havlicek stated that Gray gave her Devall's identification card and that she was to pretend to be Devall while cashing the checks. She also stated that Gray had torn pages from the yellow pages which gave the addresses of various NBC bank locations in Lincoln and that Gray directed Woods to the bank locations.

Gray was subsequently arrested and charged with second degree forgery and with being a habitual criminal. The jury found Gray guilty of the forgery charge. After an enhancement hearing, Gray was sentenced to 10 to 20 years' imprisonment.

II. ASSIGNMENTS OF ERROR

Gray asserts eight assignments of error: (1) The district court erred in admitting evidence of other crimes; (2) the district court erred in finding the evidence sufficient to prove, by a clear and convincing standard, that the other crimes introduced at trial were committed by Gray; (3) the district court erred in allowing Havlicek to testify without deciding Gray's motion to discover medical records; (4) the district court erred in finding that no prejudice occurred when Gray was viewed in full restraint by a jury member; (5) the district court erred in finding no prejudice when Gray was viewed under police escort on six separate occasions by jury members; (6) the district court erred in overruling Gray's objection to allowing the prosecution to have an additional opportunity to prove the validity of a prior conviction after the judge revealed to the State its error in proof; (7) the district court erred in finding the evidence sufficient to prove the habitual criminal allegation, because the documents offered to prove the prior convictions did not reflect the court's act of rendering judgment by the judge's signature under court seal; and (8) the district court erred in finding sufficient evidence to prove that Gray is a habitual criminal.

III. STANDARD OF REVIEW

In all proceedings where the Nebraska Evidence Rules apply, admissibility of evidence is controlled by the Nebraska Evidence Rules, not judicial discretion, except in those instances under the Nebraska Evidence Rules when judicial discretion is a factor involved in the admissibility of evidence. State v. Kirksey, 254 Neb. 162, 575 N.W.2d 377 (1998); State v. Merrill, 252 Neb. 736, 566 N.W.2d 742 (1997). The admissibility of evidence is reviewed for an abuse of discretion where the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court. Kirksey, supra; State v. Earl, 252 Neb. 127, 560 N.W.2d 491 (1997).

When reviewing a question of law, an appellate court reaches a conclusion independent of the lower court's ruling. State v. LeGrand, 249 Neb. 1, 541 N.W.2d 380 (1995), overruled on other grounds, State v. Louthan, 257 Neb. 174, 595 N.W.2d 917 (1999).

IV. ANALYSIS

1. RULE 404 EVIDENCE

Gray first asserts the trial court erred in allowing evidence of other crimes or bad acts because such evidence adduced at trial was improperly used as character evidence.

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he or she acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Neb. Evid. R. 404, Neb.Rev.Stat. § 27-404(2) (Reissue 1995).

Gray was charged with one count of forgery for his involvement in cashing check No. 1487. The trio had successfully cashed three other checks, Nos. 1488, 1485, and 1486, prior to attempting to cash check No. 1487. Pursuant to § 27-404(2), the State offered these three cashed checks, other Bluestem Books checks found in the car, and the section of the yellow pages. Prior to trial, a hearing was held to determine the admissibility of these exhibits. The trial court determined that checks Nos. 1488, 1485, 1486, and 1481 through 1484 were admissible, as well as the sheets torn from the yellow pages listing the NBC bank locations. Gray objected to the State's § 27-404(2) evidence on foundation and on relevance to the charge concerning check No. 1487.

Section 27-404(2) is an inclusionary rule which permits the use of relevant other bad acts for purposes except to prove the character of a person in order to show that such a person acted in conformity with that character. State v. Eona, 248 Neb. 318, 534 N.W.2d 323 (1995). The rule sets forth the circumstances under which evidence of other bad acts is admissible: as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Id. Gray asserts the purpose of the evidence offered by the State under § 27-404(2) was to show his propensity to commit the crime.

It is within the discretion of the trial court to determine the admissibility of evidence of other wrongs or acts, and the trial court's decision will not be reversed absent an abuse of that discretion. Kirksey, supra; Eona, supra. In reviewing trial court rulings which have admitted evidence of other crimes, an appellate court considers (1) whether the evidence was relevant, (2) whether the evidence had a proper purpose, (3) whether the probative value of the evidence outweighed its potential for unfair prejudice, and (4) whether the trial court, if requested, instructed the jury to consider the evidence only for the purpose for which it was admitted. Kirksey, supra.

The evidence shows that Havlicek owed Gray money and that Gray devised a plan whereby Havlicek could satisfy the debt. The evidence also shows Gray controlled the Bluestem Books checks. Gray brought the checks, as well as the identification cards and yellow pages, with him. He controlled where the trio went and which checks were presented for cashing. The evidence establishes Gray's plan, motive, and opportunity to have Havlicek assist him in cashing the forged checks so as to satisfy a debt. We find the evidence adduced under § 27-404(2) was relevant and offered for a proper purpose because it tends to prove Gray devised a plan to cash forged checks, which plan was also followed when check No. 1487 was presented.

The method of attempting to cash check No. 1487 had a "signature" to it which was identical to the way the other three forged checks were cashed, crimes with which Gray was not charged. Proof of a "signature" of a crime from other bad acts is a proper purpose for § 27-404(2) evidence. See State v. Wade, 7 Neb.App. 169, 581 N.W.2d 906 (1998). We find that the evidence of other crimes or bad acts was properly admitted to prove Gray's motive, plan, and opportunity. This assignment of error is without merit.

2. DISCOVERY MOTION FOR HAVLICEK'S MEDICAL RECORDS

Gray next asserts the trial court erred by allowing Havlicek to testify without deciding Gray's motion...