State v. Seger
State v. Seger
Opinion of the Court
The State of Nebraska ¡separately prosecuted .Danny Atkinson, Gary. Ogden, and Gary Seger, the defendant, for the offense of having carnal knowledge of a female child under age 15. The prosecutions arose out of the same incident. See, State v. Atkinson, 190 Neb. 473, 209 N. W. 2d 154 (1973); State v. Atkinson, ante p. 9, 213 N. W. 2d 351 (1973); State v. Ogden, ante p. 7, 213 N. W. 2d 349 (1973). The jury found Seger guilty and he was later sentenced to 5 years probation. This appeal follows.
The facts surrounding the incident can be found in State v. Atkinson, 190 Neb. 473, 209 N. W. 2d 154 (1973), and need not be set forth here. The information was filed on May 30, 1972. The trial commenced December 18, 1972, and the jury returned a verdict against the defendant on December 21, 1972. A motion for new trial based upon newly discovered evidence was filed on January 22, 1973. This motion was overruled March 8, 1973. Seger was sentenced on March 8, 1973. The notice of intention to prosecute an appeal is dated March 24, 1973.
Seger assigns as error the overruling of his motion for dismissal based upon failure to commence trial within 6 months from the filing of the information. See, § 29-1207, R. S. Supp., 1972. No motion for new trial relating to this issue under section 29-2101, R. R. S. 1943, was ever filed. Section 29-2103, R. R. S. 1943, provides that a motion for new trial,' except for newly discovered evidence, must be filed within 10 days after the verdict is rendered unless unavoidably prevented.' Alleged errors occurring during the case must be pointed out to the trial judge by a motion for new trial. In Luster v. State, 142 Neb. 253, 5 N. W. 2d 705 (1942), this court said as follows: “And we are committed to the rule that in criminal cases alleged errors of the trial court not referred to in the motion for a new trial will not be considered on appeal.” In Hall v. State, 109 Neb. 273, 190 N. W. 898 (1922), we said: “Alleged errors not brought to the attention of the' trial court in any way in a motion for new trial are not entitled to be considered or reviewed by this court.”
Seger next assigns as error the overruling of the motion for new trial based upon newly discovered evidence. A motion for new trial based upon newly discovered evidence must be made within a reasonable time after discovery of new evidence and within 3 years of the date of the verdict. § 29-2103, R. R. S. 1943. Such a motion is the exclusive exception to the general rule that a motion for new trial must be filed within 10 days of the verdict. This: motion raises only the issue of newly discovered evidence. We proceed to the merits.
The defendant contends that a polygraph examination given to the prosecutrix shortly after the rape occurred is newly discovered evidence. Defendant’s counsel contends: (1) Although he had knowledge that a polygraph examination had been administered to the prosecutrix, he did not know a written report existed; and (2) he was told the examination showed that the defendant had raped the prosecutrix and that the prosecutrix had told the truth during the examination. Counsel for Seger did not remember if he had asked the county attorney for the report. No pretrial discovery
The county attorney testified he had never studied the report in detail. He notified counsel for Seger that a polygraph examination had been administered and that there was a problem with penetration. The county attorney contends he never denied anyone an opportunity to see the report and that the report was not newly discovered evidence.
The statute, section 29-2103, R. R. S. 1943, specifically provides that where: “* * * it shall be made to appear * * * the defendant * * * has discovered new evidence material to his defense which he could not with reasonable diligence have discovered.” The newly discovered evidence must be competent, material, credible, and which might have changed, result of trial and which by the exercise of due diligence could not have been discovered and produced at the trial. Duffey v. State, 124 Neb. 23, 245 N. W. 1 (1932). The evidence in this case shows that defense counsel was notified of the report; that no discovery of the written report was attempted; and that there was no attempt made to subpoena the polygraph examiner prior to trial. It is clear that the polygraph report was not newly discovered evidence and that the defendant could have secured it on request. For this reason alone, the contention of the defendant must be rejected.
Moreover, new evidence tendered in support of a motion for a new trial must be so potent that, by strengthening evidence already offered, a new trial would probably result in a different verdict. State v. Wycoff, 180 Neb. 799, 146 N. W. 2d 69 (1966); State v. Evans, 187 Neb. 474, 192 N. W. 2d 145 (1971). Here the other damning evidence against the defendant and his companions was insurmountable. Additionally, the
The judgment of the District Court is correct and is affirmed.
Affirmed.
Dissenting Opinion
dissenting.
I dissent. Defendant at trial was represented by different counsel than on this appeal. Trial counsel failed to preserve for appeal the error in the trial court’s denial of the motion of defendant for absolute discharge because of failure to commence trial within 6 months
The inexcusable failure of trial counsel to preserve the error by motion for new trial should shock the conscience of this court. A clear violation of the Sixth, Amendment to the Constitution of the United States has occurred. I would note this unassigned error, vacate the judgment of conviction, and direct absolute discharge of the defendant.
Reference
- Full Case Name
- State of Nebraska, Appellee, v. Gary Seger, Appellant
- Cited By
- 34 cases
- Status
- Published