STEPHAN, J.
A vehicle driven by Anthony M. Laws in which Stuart D. Howard and Sarah R. McGee were passengers was stopped for speeding by a Nebraska State Patrol officer. When consent to search was denied, a trained drug detection canine unit was called. The canine alerted, and a search disclosed over 700 pounds of marijuana in a camper being towed by the vehicle. Laws, Howard, and McGee were all charged with possession of a controlled substance with intent to deliver.
The facts relating to the vehicle stop and canine sniff are identical to the facts stated by this court in our consolidated opinion on the appeals of Laws and Howard.
McGee then filed a motion to suppress the evidence found as a result of the search of the vehicles. She generally argued that the patrol officer lacked reasonable suspicion to detain the vehicle's occupants for the canine sniff and that the results of the canine sniff were unreliable and could not serve as a basis for probable cause to search. Laws and Howard filed similar motions, and after conducting a
McGee was then tried to a jury. After a 4-day trial, the jury was unable to reach a verdict and the district court declared a mistrial. Prior to retrial, McGee filed a motion to dismiss the charge against her, alleging that the State had failed to disclose exculpatory evidence that materially prejudiced her initial trial, in violation of Brady v. Maryland.
The district court determined that the State failed to disclose Laws' proffer statement to McGee either prior to or during her initial trial. It concluded that although this may have resulted in a Brady violation, dismissal of the charge against McGee was not an appropriate remedy. The court therefore overruled McGee's motion to dismiss. The State then filed a motion in limine seeking to bar McGee from presenting evidence of the proffer statement given by Laws to law enforcement, contending that it was inadmissible hearsay. The district court sustained the motion in limine, rejecting McGee's argument that Laws' statement fell within an exception to the hearsay rule.
The case then proceeded to retrial. The State sought to convict McGee as a principal or, alternatively, under the theory that she aided and abetted Laws and Howard. The jury found McGee guilty. After her motion for new trial was overruled, McGee was sentenced to a term of 2 to 4 years in prison. She filed this timely appeal.
McGee assigns, consolidated and restated, that the trial court erred in (1) finding that the arresting officer had reasonable suspicion to detain her while awaiting the arrival of the canine unit and failing to suppress the physical evidence resulting from the search and seizure of the vehicle, (2) finding the length of time that she was detained without a warrant was reasonable, (3) finding adequate foundation for admission of the results of the canine sniff of the vehicle, (4) denying her motion to dismiss for insufficient evidence made at the close of the State's case in chief during the first trial, (5) denying her renewed motion to dismiss for insufficient evidence made at the close of all evidence during the first trial, (6) failing to grant her motion to dismiss the charge against her based on the State's failure to disclose exculpatory evidence before or during her first trial, (7) failing to find that Laws' statements during the proffer interview fell within a hearsay exception and were admissible, (8) denying her motion to dismiss for insufficient evidence made at the close of the State's case in chief during the second trial and accepting the guilty verdict when insufficient evidence supported it, (9) overruling her plea in abatement, and (10) denying bond pending appeal.
McGee argues that the district court erred in finding that there was reasonable suspicion to detain her for the canine sniff. Generally, she contends that the factors considered by the district court in its analysis related only to Laws and Howard and that thus, the factors were
In our separate opinion related to Laws and Howard, we concluded that the district court did not err in finding reasonable suspicion to detain the vehicle and its occupants for the canine sniff. Although many, but not all, of the factors relied upon by the district court focused on Laws and Howard, it is undisputed that McGee was a passenger in the vehicle with Laws and Howard and that she had traveled with them on the entire trip. Occupants of a private vehicle traveling together by choice may be assumed to have some personal or business association with each other.
McGee argues that the length of time she was required to wait for the canine sniff was unreasonable. For the reasons articulated in our opinion related to Laws and Howard, we find this assignment of error to be without merit.
McGee also argues that the evidence was insufficient to support a finding that the canine was sufficiently reliable so that its alert supported a finding of probable cause to search. McGee did not raise this argument in her motion to suppress. To the extent the issue is properly before us in this appeal, it is without merit for the reasons articulated by this court in the opinion related to Laws and Howard.
SUFFICIENCY OF EVIDENCE AT FIRST TRIAL IS IRRELEVANT
McGee assigns as error the denial of her motions to dismiss made at the close of the State's case and again at the end of the first trial. The motions were based upon insufficient evidence to convict her of the crime charged.
McGee's first motion, made at the close of the State's case, was waived when McGee elected to present evidence in her defense.
McGee argues that the district court erred when it failed to grant her motion to dismiss filed after the first trial resulted in a mistrial. She claimed that dismissal of the charge prior to a retrial was proper because the State violated Brady v. Maryland
In Brady, the U.S. Supreme Court held that "suppression by the prosecution of evidence favorable to an accused. . . violates due process where the evidence is material either to guilt or to punishment."
However, "the mere determination that evidence was withheld does not automatically indicate that the prosecution violated its Brady duty."
Here, the State admits that Laws' proffer statement was not provided to McGee prior to her first trial. Assuming without deciding that the proffer statement was material under the Brady standard and thus the failure to disclose was a true Brady violation, we find that the district court did not err in refusing to dismiss the charge against McGee.
Generally, Brady violations occur during trials that result in a defendant's conviction.
The district court found that Laws' proffer statement was hearsay and was inadmissible at McGee's retrial. McGee argues that the evidence was admissible as an exception to hearsay under § 27-804(2)(c), which provides that if a declarant is unavailable as a witness, a statement he or she previously made is not hearsay if it was
Laws invoked his Fifth Amendment privilege not to testify prior to McGee's retrial and was thus unavailable as a witness.
Without detailing the contents of the proffer statement, we conclude that the district court did not err in ruling on its admissibility. The proffer statement was given as part of plea negotiations between Laws and the State. Laws' agreement with the State expressly provided that "[n]o statements made or other information provided by you during the `off-the-record' proffer or discussion will be used against you in any prosecution." Because by the nature of the agreement Laws' statement could not have been used to prosecute him, it was not against his penal interest and did not subject him to civil or criminal liability.
McGee also claims that the State presented insufficient evidence to convict her at the second trial. When reviewing a criminal conviction for sufficiency of the evidence to sustain the conviction, the relevant question for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the
The jury was instructed that it could convict McGee either as a principal or as an aider and abettor. In its closing argument, the State argued only the aiding and abetting theory. In Nebraska, a person who aids, abets, procures, or causes another to commit any offense may be prosecuted as if he or she were the principal offender.
Under the circumstances of this case, in order to be guilty of aiding and abetting, McGee must have (1) known about the marijuana in the camper and (2) encouraged or assisted Laws and Howard in transporting the marijuana. Viewed in the light most favorable to the prosecution, based on the circumstantial evidence before it, a rational jury could have found these essential elements were met beyond a reasonable doubt.
In finding a defendant guilty beyond a reasonable doubt, a fact finder may rely upon circumstantial evidence and the inferences that may be drawn therefrom.
In State v. Draganescu,
The same principles apply to the question of whether one aided and abetted another in the possession of a controlled substance with intent to deliver. In this case, State Patrol officer Robert Pelster testified that drug traffickers sometimes use a "disclaimer" in order to avoid suspicion. He testified that one type of "disclaimer" is a person that rides along on a drug transportation trip in order to make the trip look like a family outing. The sheer volume of the marijuana found in the camper supports an inference that Laws and Howard were trafficking the drugs and that both of them knew the marijuana was in the camper and intended to distribute it. A reasonable juror, after hearing the evidence, could conclude that McGee affirmatively assisted in this endeavor by agreeing to act as the "disclaimer."
A key piece of evidence is the videotape of the traffic stop. In that video, when questioned by Pelster about the nature of the trip, McGee informs him that the group had gone to Flagstaff, Arizona, to see the Grand Canyon; that they had stayed for the weekend; and that they had "had a good time out there." This statement, however, was largely contradicted by statements made by McGee to Investigator Alan Eberle in the interview conducted after her arrest. McGee told Eberle that the group did not leave Detroit, Michigan, until Friday, May 29, 2009, at approximately 3:30 p.m.; that they drove straight through and arrived in Flagstaff late Saturday evening; and that after briefly meeting up with Howard's cousins in a dark desert, they slept for approximately 6 hours at a hotel and then left Flagstaff at approximately noon on Sunday. At one point, McGee told Eberle that she saw "red rocks" that she assumed was the Grand Canyon, but at another point, she told him it was dark when they arrived in Flagstaff. McGee professed in her interview with Eberle that the purpose of her trip was to have a romantic getaway with Howard and to see the Grand Canyon, and yet she stated that when they arrived at what she thought was the Grand Canyon, she refused to leave the vehicle because she was desperately afraid of snakes. A reasonable juror could conclude that this was not a "weekend trip" to the "Grand Canyon" for the purpose of having a "good time," and could therefore infer that McGee's statement to Pelster was misleading and was an active attempt to encourage the drug-transporting endeavor and assist Laws and Howard in avoiding detection.
In addition, McGee told Eberle that they were returning to Detroit early because she received a telephone call that a family member was ill. However, she did not mention this fact to Pelster during the stop on the interstate, even though the stop took almost 2 hours. And in fact, the rental agreement for the vehicle reflected an expiration date of June 2, 2009, the day after the traffic stop in Nebraska. McGee also told Eberle that they stayed at a Red Roof Inn in Flagstaff, but evidence was presented that there is no hotel by that name at the location she identified. A different hotel at that location had no record that McGee, Laws, or Howard had ever stayed there and had no room number corresponding to that which McGee gave Eberle.
McGee argues that the district court erred in overruling her plea in abatement. She contends that insufficient evidence was presented at the preliminary hearing to bind her over for trial.
Any error in ruling on a plea in abatement is cured by a subsequent finding at trial of guilt beyond a reasonable doubt which is supported by sufficient evidence.
McGee assigns that the district court erred in refusing her bond pending her appeal. But this assignment of error is not argued in her brief. Errors that are assigned but not argued will not be addressed by an appellate court.
For all of the foregoing reasons, we affirm McGee's conviction and sentence.
AFFIRMED.
HEAVICAN, C.J., not participating.