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State v. Dudney11/12/2002
d commentary are as follows:
BY [defense counsel]:
Q- Officer, you do have to have a law violation to pull someone over. You don't just get to pull someone over for no reason. Isn't that right, Officer?
[Prosecutor]: I'm going to object, Your Honor. The Court will administer the instructions of the law in this case.
[Defense counsel]: Well, this officer I don't think that's an appropriate . . . .
THE COURT: That's not the testimony either, so I'm going to sustain the objection.
[Defense counsel]: All right. Officer, isn't it true that you have to observe some sort of traffic infraction prior to pulling over a motor vehicle that is being operated lawfully on the streets and roadways of Nebraska?
A- You have to have probable cause.
Q- Okay. To pull someone over?
A- Yes.
Q- And the probable cause goes to a law violation. Is that right?
[Prosecutor]: I'm going to object, Your Honor. I think that is a misstatement of the law and I don't think it's an appropriate question.
THE COURT: I'm going to sustain the objection because the pull over can be made on the basis of a radio transmission as well, and not any observation of the officer. So that line of questioning is not appropriate.
Dudney asserts that the above questions by defense counsel were proper and argues that defense counsel should have been allowed to explore Woods' understanding of the law further. Dudney further asserts that the trial court "bec me a witness and injected information regarding other grounds for conducting a traffic stop" and that the court "step into the shoes of the prosecutor for just a moment and assist the prosecution in presenting its case." Brief for appellant at 35. Dudney asserts that his conviction should be reversed because the above comments by the trial court were prejudicial in that they "may have created an impression with the jury that there was no problem with the traffic stop." Id. Dudney concedes, however, that it is unlikely that a direct impact or prejudicial impact on the jury from the court's comments can be shown.
A trial judge should carefully refrain from expressing any opinion of or commenting on the evidence. State v. Nissen, 252 Neb. 51, 560 N.W.2d 157 (1997);State v. Toof, 9 Neb. App. 535, 616 N.W.2d 32 (2000). To establish reversible error, a defendant must demonstrate that a trial court's conduct, whether action or inaction during the proceeding against the defendant, prejudiced or otherwise adversely affected a substantial right of the defendant. State v. Privat, 251 Neb. 233, 556 N.W.2d 29 (1996); State v. Toof, supra. A remark by the court in admitting or excluding evidence is not prejudicial when it amounts to no more than a ruling on the question or where it is made to expedite the trial. State v. Privat, supra. A trial court generally is not impermissibly expressing an opinion when it makes ordinary rulings during the course of the trial. Id.
Here, the trial court's comments were tantamount to simply saying "sustained." See State v. Privat, supra. We find no reversible error in the court's comments made in connection with its ruling on the objections at issue. In light of the fact that Woods did not make the stop of Dudney's pickup, and as Woods' understanding of probable cause and reasonable suspicion was not material to the defense, Dudney has failed to establish any prejudice from the trial court's rulings in regard to this line of questioning.
Requested Jury Instruction.
Dudney asserts that the county court erred by failing to instruct the jury properly and by failin
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