State v. Valdez

476 N.W.2d 814, 239 Neb. 453, 1991 Neb. LEXIS 365
CourtNebraska Supreme Court
DecidedNovember 8, 1991
DocketNo. 90-552
StatusPublished
Cited by12 cases

This text of 476 N.W.2d 814 (State v. Valdez) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Valdez, 476 N.W.2d 814, 239 Neb. 453, 1991 Neb. LEXIS 365 (Neb. 1991).

Opinion

Grant, J.

Defendant, Carlos Valdez, was charged in Scotts Bluff County with intentionally distributing, delivering, or dispensing cocaine on January 9, 1990, in violation of Neb. Rev. Stat. § 28-416(l)(a) (Reissue 1989). After jury trial, defendant was found guilty. After a presentence investigation, defendant was sentenced to 4 to 7 years’ imprisonment. He timely appealed to this court, assigning as error the actions of the trial court in (1) failing to grant defendant’s motion for a continuance of the trial, (2) failing to grant defendant’s motion for mistrial, and (3) imposing “an unreasonable sentence under the circumstances.” We affirm.

In connection with defendant’s contentions concerning the trial court’s refusal to grant a continuance, the record shows the following: On January 30, 1990, defendant appeared in the county court. The complaint was read to him, and the county court, “satisfied that he [was] indigent,” appointed the public defender to represent defendant. Defendant’s bond was set at $50,000, and the preliminary hearing was set for February 9.

On February 1, defendant appeared with private counsel for a bond review hearing. Defendant’s bond was reduced to $25,000. Defendant posted 10 percent of this amount and was released on bond. On February 5, the public defender was allowed to withdraw. On February 9, defendant’s privately retained counsel was permitted to withdraw, due to a conflict of interest, and the preliminary hearing was continued to February 27.

On February 27, defendant appeared with a different privately retained attorney, Robert L. Gridley. After the preliminary hearing, defendant was bound over to the district court for trial.

On March 2, Gridley filed a plea in abatement on behalf of defendant. On March 16, this plea was overruled and defendant was arraigned. His plea of not guilty was accepted, and trial was [455]*455set for the jury term beginning on April 30.

On March 30, Gridley, on behalf of defendant, filed a motion for discovery and a motion for change of venue. On April 13, both defendant’s and the State’s motions for discovery were granted. On April 20, a hearing was held on defendant’s motion for change of venue, and the motion was denied. Defendant then advised the court that he was unable to retain Gridley for future representation. After inquiry, the court found that “the defendant and counsel were willing to enter into an agreement for later payment and therefore the defendant did not require appointed counsel.”

On April 25, Gridley filed a motion to withdraw and a motion for continuance in the event the motion to withdraw was denied. On April 26, the trial court had a hearing on these motions. Defendant, Gridley, and the county attorney were present. Evidence was adduced. The court then “overruled defense counsel’s motion to withdraw, motion for a [sic] appointment of counsel and motion for continuance.”

On April 30, Gridley filed another motion to withdraw. Accompanying this motion was Gridley’s affidavit stating that defendant had discharged him on April 27, and stating that the relationship between Gridley and defendant had reached the point where it was “impossible for [the attorney] to prepare an adequate defense in this matter.” Also accompanying this motion was a “Discharge of Counsel” signed by defendant.

A hearing was held on this motion on the morning of April 30, just before a jury was to be selected. The court denied the motion, but did appoint Charles Fitzke, the public defender, as cocounsel with Gridley. A jury was then selected with the understanding that trial was to begin on May 7. On May 3, defendant appeared before the court with both Gridley and Fitzke, as his cocounsel, and again requested a continuance of the trial. The motion was denied. The trial began with opening statements at approximately 9 a.m. on May 7. Both Gridley and Fitzke were present at the trial, but public defender Fitzke conducted cross-examination and direct examination on behalf of defendant. Six witnesses were called by the State. Defendant testified in his own behalf. The jury reached its verdict of guilty on May 7 at 7:30 p.m.

[456]*456It is with this procedural background that defendant contends the court erred in not granting any of his requested continuances. The law in this area is settled. “ ‘A motion for a continuance in a criminal case is addressed to the ... discretion of the trial court, and that court’s ruling will not be disturbed on appeal absent a showing of abuse of discretion.’ ” State v. Blair, 230 Neb. 775, 779-80, 433 N.W.2d 518, 522 (1988), quoting State v. Eichelberger, 227 Neb. 545, 418 N.W.2d 580 (1988).

In determining whether a trial court has abused its discretion in refusing to grant a continuance, it is proper for the reviewing court to look at the entire record in the case. State v. Broomhall, 221 Neb. 27, 374 N.W.2d 845 (1985). See Neb. Rev. Stat. § 25-1148 (Reissue 1989).

Examination of the entire record shows that the case against defendant was proved by the testimony of a “cooperating individual,” who had himself been arrested for selling drugs. The narcotics authorities provided money, and the cooperating individual purchased cocaine from defendant. Both the cooperating individual and the officer in charge of the transaction testified at the preliminary hearing and were cross-examined by Gridley, acting as defendant’s attorney. Both testified at the trial. Three other officers testified at trial as to various details of the cocaine sale, and a chemist testified that the substance sold was cocaine. Defendant testified at trial that he sold the cocaine to the cooperating individual, because “I [the defendant] needed the money . . . and I was going to get a good deal, so I went and I got it for him.” Defendant did further testify he had refused to make other sales to the same individual. The case was tried in 1 day. No involved factual issues were present.

Defendant apparently wanted to present a “unique” entrapment defense, but defendant himself would know the facts necessary to prove such a defense. After the pretrial hearings, no statements were made to the court setting out any specific reason why additional time was needed. As we stated in State v. Pierce and Wells, 215 Neb. 512, 519, 340 N.W.2d 122, 127 (1983), “There is no abuse of discretion by the court in denying a continuance unless it clearly appears that defendant [457]*457suffered prejudice as a result thereof.”

The trial court did not abuse its discretion in denying a continuance of the trial. Defendant’s contention of error in this respect is without merit.

Defendant then contends that the trial court erred in denying defendant’s request for a mistrial. Defendant contends that

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Cite This Page — Counsel Stack

Bluebook (online)
476 N.W.2d 814, 239 Neb. 453, 1991 Neb. LEXIS 365, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-valdez-neb-1991.