“ ‘[E]xpert testimony is admissible only if it will be of assistance to the jury in its deliberations and relates to an area not within the competency of ordinary citizens’ ”
How later courts described this case
- “ ‘[E]xpert testimony is admissible only if it will be of assistance to the jury in its deliberations and relates to an area not within the competency of ordinary citizens’ ”
- it is not for an expert to suggest to a jury how a witness’ testimony shall be weighed or evaluated
Written by the judges who cited it.
The opinion
*522 Grant, J.,
dissenting in part.
I dissent only from the judgment of this court affirming defendant’s convictions and sentences for the two crimes of assault in the first degree and use of a firearm in the commission of that felony. The decisive point on this issue is not raised by defendant but seems to me to be such plain error it should be addressed.
I agree completely that defendant’s convictions and sentences as to the crime of murder in the second degree and the use of a firearm in the commission of that felony, in the murder of Marco Perez, should be affirmed. I also agree completely that the convictions and sentences as to defendant’s crime of attempted murder in the second degree and the use of a firearm in the commission of that felony, in the attempted murder of Mark Heil, should be affirmed. I believe it was error for the trial court to impose an additional conviction and sentence on defendant for first degree assault and use of a firearm, also arising from the attempted murder of Mark Heil. As I understand the facts, both the charge of attempted murder in the second degree and the charge of first degree assault rest on defendant’s action in shooting Mark Heil in the neck.
The action of this court, in my judgment, constitutes a violation of defendant’s right not to be “twice put in jeopardy for the same offense” — a right guaranteed to defendant by Neb. Const, art. I, § 12, and by U.S. Const, amend. V. That right encompasses the right to be protected “against multiple punishments fbr the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717 , 89 S. Ct. 2072 , 23 L. Ed. 2d 656 (1969). I, therefore, respectfully dissent from the affirmance of that part of defendant’s conviction and sentencing.
The opinion of the majority on this point rests, in large part, on this court’s holding in State v. Lovelace, 212 Neb. 356 , 322 N.W.2d 673 (1982), where we held that assault in the first degree is not a lesser-included offense of attempted murder in the second degree. In the Lovelace case, the conviction of Lovelace for the crime of first degree assault was reversed and the case dismissed on the grounds that Lovelace was charged only with attempted murder in the second degree and the use of a firearm on the commission of that felony. The ground for the reversal *523 and dismissal of the first degree assault charge was apparently that defendant had not been afforded his constitutional rights, in that the crime of assault in the first degree had never been charged against defendant, and that since this court determined such an assault was not a lesser-included offense of attempted second degree murder, defendant had never been properly charged, arraigned, and tried on the charge of which he was convicted. That determination acted as a constitutional shield for the defendant in requiring that he had to be afforded due process before he could be convicted. The Lovelace case addressed the double jeopardy issue in dicta only, in that it invited further prosecution of Lovelace on the assault offense, because the assault offense was held to be a separate and distinct crime. That use of a constitutional shield in Lovelace has been transformed to a constitutional sword in the hands of the State in the present case before us.
I recognize, as does the majority opinion, that in Missouri v. Hunter, 459 U.S. 359, 368-69 , 103 S. Ct. 673 , 74 L. Ed. 2d 535 (1983), the U.S. Supreme Court stated:
Thus far, we have utilized that rule [in Whalen v. United States, 445 U.S. 684 , 100 S. Ct. 1432 , 63 L. Ed. 2d 715 (1980)] only to limit a federal court’s power to impose convictions and punishments when the will of Congress is not clear. Here, the Missouri Legislature has made its intent crystal clear. Legislatures, not courts, prescribe the scope of punishments.
Where, as here, a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the “same” conduct under [Blockburger v. United States, 284 U.S. 299 , 52 S. Ct. 180 , 76 L. Ed. 306 (1932)], a court’s task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial.
That holding permits the imposition of a consecutive sentence for using a firearm in both the second degree murder of Marco Perez and the attempted second degree murder of Mark Heil, because, as the majority opinion notes, the Legislature of Nebraska, in Neb. Rev. Stat. § 28-1205 (3) *524 (Reissue 1985), has specifically provided for such cumulative punishment.
The Nebraska Legislature, however, has not authorized cumulative punishments for the same conduct in attempting murder and committing an assault, when those offenses arise from the “same conduct.” In this case, the majority has used a judicial interpretation of “lesser-included offenses” as a springboard to impose cumulative sentences for the same offense.' I believe such action violates defendant’s constitutional, double jeopardy rights. I would reverse and dismiss defendant’s convictions for first degree assault and use of a firearm in that assault. I would affirm defendant’s other convictions.
Boslaugh, J., joins in this dissent.