Petition for Writ of Certiorari — Bishop v. Nebraska

# Seorecsa Doert, 0.5,

| FILED

JUL 2g 1987

JOSEPH F. SPANIOL, JR,

87-145

____ ere

1

In The

Supreme Court of the United States

October Term, 1986

o

ARCHIE M. BISHOP,

Petitioner,

vs.

STATE OF NEBRASKA,

Respondent.

>

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF NEBRASKA

co)

CiypvEe F. Starrett

106 West C Street

McCook, NE 69001

(308) 345-1780

Attorney for Petitioner

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

cr call collect (402) 342-2831

QUESTION PRESENTED

Is the County Court required to grant a jury trial on

three (3) counts stemming from the same incident when

a jury trial was not knowingly and intelligently waived

on the three (3) counts after the Supreme Court of Ne-

braska, in State v. Bishop, 224 Neb. 522, 399 N.W.2d 271

(1987) mandated a new trial on one (1) count which ecar-

ried a possible one (1) year jail sentence, even though no

jail time was ordered after the trial, but denied a new

trial as to the other two (2) counts even though the two

(2) counts each carried a possible seven (7) day jail

sentence?

li

TABLE OF CONTENTS

Pages

OU BRI PMs CEE intention eoueisaah i

OR ETI BERIT disci deiniecscusis aienecaedisbaiaieenain 2

Ab it ii) Se 2) nee eran aime ees Se a eer cms 2

QUESTION PRESENTED 2

CONSTITUTIONAL PROVIE«AGs 3

STATEMENT Oe 2 aeee eee ace ese 3

REASONS FOR GRANTING THE WRIT _W sie 5

1. The decision of the Nebraska Supreme Court

appears to be contrary to Codispoti v. Pennsyl-

vania which holds that where several contempts

are involved for which the penalty for all would

exceed 6 months in jail, the contemnor is entitled

to a jury trial even though the sentence for any

one contempt charge did not exceed 6 months. —. .

2. The decision of the Nebraska Supreme Court

would also appear to be in conflict with United

States v. Potvin (1973) and again in Haar v. Han-

rahan (1983), both in the 10th Cireuit, and both

setting forth the holding that a defendant is en-

titled to a jury trial for multiple petty offenses

arising out of the same act, transaction, or oceur-

rence, if threatened at the commencement of trial

with an aggregate potential penalty of greater

than 6 months imnrisonment. cece

3. The decision of the Nebraska Supreme Court

also appears to be in conflict with the decision of

1985, of the New Mexico Court in Vallejos v.

Barnhart, wherein a jury trial was granted on

multiple counts of petty offenses when the pos-

sible penalties could exceed 6 months in Jail. ..........

CONCLUSION cnc cee

pA og i ft) 5 a enOnnN eles sy Ste eC TED Esc, App.

8

ill

TABLE OF AUTHORITIES

Pages

CasEs:

Baldwin v. New York, 339 U.S. 66, 90 S.Ct. 1886,

26 L.Pid.2d 437 (1970) ... 5, 9

Codispoti v. Pennsylvania, 418 U.S. 506, 94 S.Ct.

2687, 42 L.Ed.2d 912 (1974) .......... . 6,9

Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444,

20 L.Ed.2d 491 (1968) 5,7,9

Haar v. Hanrahan, 708 F.2d 1547 (1983) 6, 7,8, 9, 10

Patton v. United States, 281 U.S. 276, 50 S.Ct. 253,

74 L.Ed. 854 (1930) é 9

State v. Bishop, 224 Neb. 522, 199 N.W.2d 271

(1987) os : 2, a, 6, ¥ 8, 9

State v. Predmore, 220 Neb. 336, 370 N.W.2d 99

(1985) Ss a 9

United States v. Potvin, 481 F.2d 380 (1973) 6,7,8

Vallejos v. Barnhart, 102 N.M. 438, 697 P.2d 121

I al hasianecpenicseweepuaiolnnppienmioaani 8,9

CoNSTITUTIONAL Provision

Amendment VI. Constitution of the United States ....... 3

STATUTES

28 U.S.C. § 1257(3) ......... BLT OS Ne ee OE OO aS

Section 28-904 R.R.S. 1943 as amended ...... ESAT 4

Section 39-669.07 R.R.S. 1943 as amended — 0. 4

Section 39-669.08 R.R.S. 1943 as amended 0. 4

Texts

59 Towa Law Review 614 (1974) —_££___................. 7

In The

Supreme Court of the United States

October Term, 1986

ARCHIE M. BISHOP,

Petitioner,

vs.

STATE OF NEBRASKA,

Respondent.

co)

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF NEBRASKA

The Petitioner, Archie M. Bishop, respectfully prays

that a writ of certiorari issue to review the judgment of

the Supreme Court of the State of Nebraska entered in this

proceedings on January 16, 1987.

2

OPINION BELOW

The Supreme Court of the State of Nebraska over-

ruled a motion for rehearing in this case. The Nebraska

Supreme Court issued an opinion on the issues in this case

in State v. Bishop, reported at 224 Neb. 522, 399 N.W. 2d

271 (1987). (erder and opinion appended).

}

JURISDICTION

The judgment of the Supreme Court of Nebraska was

entered January 16, 1987. The overruling of the motion

for rehearing in the Supreme Court of Nebraska was en-

tered on the Courts docket sheet June 3, 1987, without

opinion. This Court’s Jurisdiction is invoked under 28

U.S.C. § 1257(3).

QUESTION PRESENTED

Is the County Court required to grant a jury trial on

three (3) counts steming from the same incident when a

jury trial was not knowingly and intelligently waived on

the three (3) counts after the Supreme Court of Nebraska,

in State v. Bishop, 224 Neb. 522, 399 N.W.2d 271 (1987)

mandated a new trial on one (1) count which carried a

possible one (1) year jail sentence, even though no jail time

was ordered after the trial, but denied a new trial as to

the other two (2) counts even though the two (2) counts

each carried a possible seven (7) day jail sentence?

a

CONSTITUTIONAL PROVISION

AMENDMENT VI

In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial jury

of the State and District wherein the crime shall have been

committed, which district shall have been previously ascer-

tained by law, and to be informed of the nature and cause

of the accusation; to be confronted with the witnesses

against him; to have compulsory process for obtaining wit-

nesses in his favor, and to have the Assistance of Counsel

for his defense.

STATEMENT OF THE CASE

Petitioner is older and longtime resident of McCook,

NE 69001. Early in the evening of December 22, 1984,

petitioner drove his car home from the West Sale Barn of

MeCook. This was less than a mile. An officer in a cruiser

traveling in the opposite direction—south thought she heard

‘*metal on metal’’. She turned around and followed the

petitioner into his yard. Arrested petitioner and with help

placed him in her cruiser. At the station she asked peti-

tioner te take the test for alcohol in the body, which test

petitioner refused.

On January 17, 1986, petitioner was charged with four

(4) misdemeanors: Leaving the scene, resisting arrest,

driving while intoxicated, and failure to take the test for

aleohol in the body. Not guilty pleas were entered to all

counts. The Court did not inquire specifically of the peti-

4

tioner as to his wishes as to a jury. Demand for a jury was

made in writing with other motions.

On March 8, 1985, the Court denied petitioner’s re-

quest for a jury. Holding that the Court believed the re-

quest in writing was not filed within ten (10) days of en-

tering the pleas. Court also ruled on other motions.

As to the trial to the Court on April 25, 1985, the Court

found petitioner innocent of leaving the scene, but guilty

of resisting arrest, driving while intoxicated and failure to

take the chemical test. With other possible penalties, as to

maximum jail sentences: the resisting arrest is a maximum

of one (1) year in jail, Section 28-904 R.R.S. 1943 as

amended; driving while intoxicated is a maximum of seven

(7) days in jail, Section 39-669.07 R.R.S. 1943 as amended;

and failure to take the test is a maximum of seven (7) days

in jail, Section 39-669.08 R.R.S. 1943 as amended. At sen-

tencing for resisting arrest, the petitioner was fined $250;

for driving under the influence, petitioner was fined $250,

ordered to jail for 7 days and his drivers license was sus-

pended for 6 months; and for failure to take the chemical

test, petitioner was fined $200, ordered to jail for seven

(7) days and his drivers license was suspended for 6

months. The jail time and license suspension were or-

dered to be concurrent.

On appeal to the District Court of Red Willow County,

Nebraska, the judgment and sentences were affirmed.

On appeal to the Supreme Court of the State of Ne-

braska, Count 1 of driving while intoxicated was modified

to a $200 fine, otherwise affirmed; Count II, failure to take

the chemical test was affirmed; and Count LII resisting

arrest was remanded for a new trial.

nb

REASONS FOR GRANTING THE WRIT

1. The decision of the Nebraska Supreme Court ap-

pears to be contrary to Codispoti v. Pennsylvania which

holds that where several contempts are involved for which

the penalty for all would exceed 6 months in jail, the con-

temnor is entitled to a jury trial even though the sentence

for any one contempt charge did not exceed 6 months.

Of course the main difference between State v. Bishop,

224 Neb. 522, 399 N.W.2d 271 (1987), and Codispoti v.

Pennsylvania, 418 U.S. 506, 94 S.Ct. 2687, 41 L.Ed.2d 912

(1974), is that Codispoti is a contempt case. Even though

the penalty had not been previously set by a legislative

body, which is the case with Bishop, the United States Su-

preme Court found that a jury trial was warranted after

the aggregate sentence exceeded the 6 months usual dis-

tinction between petty and serious offenses. Duncan v.

Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491

(1968).

In the Bishop case the maximum jail sentence had been

prescribed for the offenses charged. Resisting arrest was

up to 1 year in jail, driving while intoxicated a possible 7

days in jail, and refusal to take the test also a possible 7

days in jail. The reasoning of Codispoti should extend to

Bishop because Bishop was facing a possible sentence of 1

year and 14 days in jail. The Nebraska Supreme Court

grants a new trial in Bishop on the charge with a possible

1 year jail sentence, but not for the 1 year and 14 days.

A 1 year jail sentence is a serious offense and 1 year and

14 days in jail is a more serious offense. In Baldwin +.

New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Bd.2d 437 (1970),

6

Justice White indicated that any prison sentence can have

a profound effect on a defendant.

This Court should use the Codispoti as a basis for a

writ of Certiorari to issue to review the judgment of the

Supreme Court of the State of Nebraska.

2. The decision of the Nebraska Supreme Court would

also appear to be in conflict with United States v. Potvin

(1973), and again in Haar v. Hanrahan (1983), both of the

10th Circuit, and both setting forth the holding that a de-

fendant is entitled to a jury trial for multiple petty of-

fenses arising out of the same act, transaction, or occur-

rence if threatened at the commencement of trial with an

aggregate potential penalty of greater than 6 months im-

prisonment.

Clearly United States v. Potvin, 481 F.2d 380 (1973)

holds contrary to Nebraska in Bishop. As in Potvin the

sentence imposed was only ninety days on one count and

6 months probation on the second count. At the commence-

ment of trial the defendants in Potvin faced a possible jail

confinement exceeding 6 months. The Potvin Court sent

the case back for a new trial when a jury had been denied

initially.

The same 10th Circuit Court in a case 10 years later

and in 1983 reviewed the problem once more. This was

in Haar v. Hanrahan, 708 F.2d 1547 (1983), wherein a new

trial was not granted only because the defendant on a trial

de novo faced a sentence of no more than 180 days. The

Haar Court did ask for help from the United States Su-

preme Court, at page 1553 of 708 F.2d. The Haar Court is

asking if a ‘‘serious offense’’ means a cumulation of petty

offenses so as to require a jury trial? How can it be other-

wise when the sentence becomes one of a potential prison

term of more than 6 months, it is serious, see Duncan.

In Haar, the Court debates itself about a subjective

objective approved possibility from Potvin. This seemed

to have originated with Aggregation of Sentences: Obtain-

ing Jury Trials for Petty Offenders, 59 Iowa L.Rev. 614

(1974). The Haar Court did not want to sanction the ob-

jective approach which would allow aggregation of charges

of multiple petty offenses to become a ‘‘serious crime”’ for

which a jury would be mandated. But even so, the Haar

Court goes on to say,

‘*We hold that a defendant is entitled to a jury trial

for multiple petty offenses arising out of the same act,

transaction, or occurence only if he is actually threat-

ened at the commencement of trial with an aggregate

potential penalty of greater than six months imprison-

ment.’’

at page 1553 of 708 F.2d.

The Nebraska Supreme Court in Bishop was not both-

ered by the objective subjective approach. As to the re-

sisting arrest charge and granting the new trial, this would

have to be objective because the County Court gave no sen-

tence to jail and the Supreme Court granted a new trial,

while with the other two offenses which would have in-

creased the aggregate jail sentence, no new trial was

granted. As to the last two offenses mentioned this would

have to have been the subjective approach. If the objec-

tive approach has merit, and it does, the Court should be

consistent and used the objective approach throughout its

resolution of the Bishop case.

We would again ask this Court to use Potvin and Haar

holdings as a basis for a writ of Certiorari to issue to re-

view the judgment of the Supreme Court of the State of

Nebraska.

3. The decision of the Nebraska Supreme Court also

appears to be in conflict with the decision of 1985, of the

New Mexico Court in Vallejos v. Barnhart wherein a jury

trial was granted on multiple counts of petty offenses when

the possible penalties could exceed 6 months in jail.

The New Mexico Supreme Court has also opted to dif-

fer with the holding in Bishop by the Nebraska Supreme

Court. In Vallejos v. Barnhart, 102 N.M. 438, 697 P.2d

121 (1985), a case in which the defendants were charged

with multiple traffic violations and driving under the in-

fluence for which the aggregate penalties could exceed 180

days in jail. The New Mexico Court said that when you

were looking at ‘‘the penalty’’ this meant the aggregate

penaity. When exposed to confinement over six months, a

defendant is entitled to a jury trial. Emphasis supplied.

This is very much like the Bishop case with the mul-

tiple misdemeanor Counts. But with the result being a

jury trial because of the aggregate penalties. Whereas the

Nebraska Supreme Court in Bishop granted a jury trial on

only the one count and should be required to grant a jury

trial on all counts because all stemed from one act, transac-

tion or occurence.

°

CONCLUSION

Arguing from the premises that the Court would no

longer quarrel with the proposition that a waiver or a jury

trial must be express and intelligent. Patton v. United

States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854 (1930). The

Waiver can not be presumed from a silent record. State

v. Predmore, 220 Neb. 336, 370 N.W.2d 99 (1985). That

a jury trial must be provided for serious offenses i.e., when

the penalty can be in excess of six months. Baldwin v.

New York, 339 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970).

Then too, if the possible penalty at the commencement

of trial could exceed 6 months, even though the Court as-

sessed a penalty of only 60 days and a fine. Duncan v.

Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491

(1968).

In keeping also with the position opposing the Ne-

braska Court in Bishop, is Codispoti where you looked to

the aggregate penalty for the various contempts even

though one contempt carried a sentence in excess of 5

months.

Because of the differences among the various Courts,

we need a resolution of the problem of the meaning of the

term penalty. Does it mean all crimes in the aggregate as

in the Vallejos case? Or is Nebraska right in saying in the

Bishop case that it means only the case with the penalty in

excess of 6 months and not all penalties combined which

could exceed 1 year and 14 days.

If there is merit in the subjective objective analysis of

Haar, how can Nebraska in Bishop use the objective analy-

sis for the resisting arrest part of the crime and subjective

10

test when all three offenses from one act, transaction or

occurrence are examined to determine which part thereof

is entitled to a jury trial and which part a trial to the Court.

Again as said in Haar we need the United States Su-

preme Court to speak on this issue. Hopefully to uphold

the right to a jury trial. The jury is the cornerstone of

the difference between this Country and so many of the

autocratic societies.

We ask this Court to issue a Writ of Certiorari to re-

view the judgment of the Supreme Court of Nebraska.

Respectfully submitted,

Ciype F., Starretrr

P. O. Box 848

Merit Bldg.

MeCook, NE 69001

(308) 345-1780

Attorney for Petitioner

App. 1

APPENDIX

Order of June 3, 1987

Motion for rehearing of judgement of the Supreme

Court of the State of Nebraska of January 16, 1987. Over-

ruled June 3, 1987, stay of imposition of sentence entered

in District Court of Red Willow County, Nebraska, June

15, 1987.

Opinion of Nebraska Supreme Court

Boslaugh, J.

The defendant was found guilty of driving while un-

der the influence (count I), refusing a chemical test

(count II), and resisting arrest (count III). On count I

he was fined $250.00 and sentenced 7 days in jail, and his

operator’s license was revoked for 6 months; on count

II he was fined $200.00 and sentenced to 7 days in jail,

the sentences to run concurrently; and on count III he

was fined $250.00. He was found not guilty of leaving the

scene of a property damage accident (count IV).

The District Court affirmed the convictions and sen-

tences. This appeal followed.

The incident which led to the convictions occurred

on December 22, 1984. On that evening, at approximate-

ly 8:50, Officer Barbara McMullen was traveling south

on U.S. Highway 83, near McCook, Nebraska, when she

observed the defendant’s vehicle turn north onto the high-

way. The officer then observed the vehicle swerve from

the roadway onto the shoulder of the road several times,

heard the sound of metal on metal, and saw the vehicle

‘come off of a highway steel reflector post’’ and con-

App. 2

tinue down on the grass and snow. The officer turned her

vehicle around, activated the red lights, and began to fol-

low the defendant’s vehicle. While she followed, the de-

fendant’s vehicle twice swerved into the oncoming traffic

lane. The officer activated her police siren and observed

the defendant drive into the oncoming lane for 250 feet

and then turn into a farmyard.

The officer followed the defendant into the farmyard

and approached the defendant as he stepped out of his

vehicle. She asked to see his driver’s license, and the de-

fendant handed her a handful of papers, from which she

located a Colorado license. As they talked, the officer

noticed a strong odor of alcohol, that the defendant held

onto the car, and that he had ‘‘extreme difficulty’’ stand-

ing without holding onto something. His face was very

red, and his eyes were bloodshot. His speech was blurred

and hard to understand. He was having difficulty under-

standing questions. The defendant was asked to submit

to a preliminary test but refused to do so.

At that time a second officer, Sgt. Rick Stalder, ar-

rived. After he was apprised of the situation, Sergeant

Stalder informed the defendant that he was under arrest

and had to accompany the officers to the station. The de-

fendant refused to leave his property, got into his vehicle,

and attempted to shut door. He then held on to the door

jamb with one hand and the steering wheel with the other.

Officer McMullen testified she pulled his fingers from

the steering wheel with ‘‘a great deal of effort,’’ and

Sergeant Stalder pulled him out of the car. Once out of

the car, the defendant ‘‘went limp and let himself fall to

the ground,’’ and the officers were required to expend

App. 3

‘‘a good deal of effort’’ to handcuff him. When the de-

fendant refused to get up, he was pulled up by the officer

and forcibly placed in the patrol car. The defendant’s

car keys remained in the ignition during the struggle. The

officers’ testimony as to the circumstances of the arrest

was not disputed.

En route to the station, the defendant complained of

an injury to his hand and asked to be taken to the hospital.

Officer McMullen communicated this request to Sergeant

Stalder, who advised her to proceed to the station. Once

there, several people examined the defendant’s hand while

Officer MeMullen read the informed consent form to the

defendant and asked him to take a breath test. The de-

fendant refused to sign the forms or take the test.

The defendant was then transported to the hospital,

where he again refused to submit to a chemical test, and

also refused treatment of his hand. He was taken back

to the station and placed in jail. About 1 hour later he

was taken back to the hospital and treated.

At trial the State presented the officers’ testimony

and rested. The defendant presented several witnesses

who testified they had seen the defendant at various times

on the day of| his arrest and that he appeared not to be

intoxicated.

The defendant first assigns as crror the trial court’s

denial of his motion to suppress all evidence obtained

after the defendant was stopped. It is the defendant’s

position that suppression was required because the officers

failed to give the defendant the Miranda warnings when

he was arrested. This condition is without merit.

App. 4

There is no requirement in this jurisdiction that Mi-

randa warnings be given prior to a request to submit to

a chemical test of blood, breath, or urine. State v. Klingel-

huefer, 222 Neb. 219, 382 N.W.2d 366 (1986); Fulmer v.

Jensen, 221 Neb. 582, 379 N.W.2d 736 (1986); Wiseman

v. Sullivan, 190 Neb. 724, 211 N.W.2d 906 (1973). In ad-

dition, under the implied consent law, a driver is not en-

titled to consult with an attorney, nor is a delay in the test

required should a driver request to consult with an at-

torney. Fulmer, supra. Evidence. obtained in the implied

consent context is not testimonial or communicative and

does not fall within the privilege against self-incrimination.

Fulmer, supra. See also, Schmerber v. California, 384 U.S.

757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966).

The defendant next contends the county court erred in

finding that the offiers properly entered the defendant’s

property without a warrant. The defendant argues that

the officers should have obtained a warrant for his arrest

before entering his property. This contention is not sup-

ported by the facts or the law.

Neb. Rev. Stat. § 209-404.02 (Reissue 1985) provides

for warrantless arrest if an officer has reasonable cause to

believe a person has committed

(2) A misdemeanor, and the officer has reasonable

cause to believe that such a person either (a) will not

be apprehended unless immediately arrested; ... (c)

may destroy or conceal evidence of the commission of

such misdemeanor; or (d) has committed the misde-

meanor in the presence of the officer.

Probable cause for a warrantless arrest exists when,

‘at the time of the arrest, the officer had knowledge of the

facts and circumstances based on reasonably trustworthy

App. 5

information which: was sufficient to warrant a prudent man

in believing the defendant had committed or was commit-

ting an offense.’’ State v. Evans, ante p. 64, 67, 395

N.W.2d 563, 506-67 (1986) (citing State v. Ware, 219 Neb.

094, 365 N.W.2d 418 (1985)). See, also, State v. Tipton,

206 Neb. 731, 294 N.W.2d 869 (1980).

The officers clearly had probable cause to arrest the

defendant. Officer McMullen saw the defendant drive er-

ratically, observed him drive over a reflector post, and

observed that the defendant appeared to be intoxicated.

This was sufficient cause to support the officer’s belief

the defendant had committed a misdemeanor in her pres-

ence: driving while intoxicated. Further, the delay caused

by obtaining a warrant could have resulted in the destruc-

tion of evidence: the metabolism of the alcohol in the de-

fendant’s body. See State v. Hilligan, 222 Neb. 866, 387

N.W.2d 698 (1986) ; Schmerber v. California, supra.

The warrantless arrest was not invalid because it oc-

curred on the defendant’s property. In State v. Penas,

200 Neb. 387, 263 N.W.2d 835 (1978), we held that a war-

rantless entry is valid if the police officer enters under

exigent circumstances such as hot pursuit or the imminent

destruction of evidence. This hold was grounded on Unit-

ed States v. Santana, 427 U.S. 38, 96, S. Ct. 2406, 49 L. Ed.

2d 300 (1976). In Santana the U.S. Supreme Court held

that a suspect may not defeat a warrantless arrest which

has been set in motion in a public place upon probable cause

by the expedient of escaping to a private place. The arrest

in Santana occurred in the vestibule of the accused’s home.

The defendant contends that several recent Supreme

Court cases cast doubt on the continued validity of our

App. 6

holding in Penas. The cases cited are not applicable here

because they involved warrantless arrests in a home in the

absence of exigent circumstances. The defendant in this

case was arrested in his farmyard after the arresting of-

ficer had actively pursued him on the highway for several

minutes, with red lights flashing and the siren activated.

k'urther, evidence of the defendant’s intoxication would

have been lost had the officers waited to obtain an arrest

warrant. ‘These facts constituted exigent circumstances

which justified the warrantless entry onto the defendant’s

property.

The defendant next assigns as error the county court’s

overruling of his motion for a jury trial. The defendant

contends he should have been granted a jury trial on each

charge.

The defendant was arraigned on January 17, 1985.

He was represented by counsel and informed by the court

of his right to a jury trial. Pleas of not guilty were en-

tered and a hearing on motions set for February 14, 1985.

A motion for a jury trial was filed and bears a hand-

written notation “hand delivered 2-6-85.’’ It is signed by

the defendant’s attorney. The trial court denied the mo-

tion as untimely.

The rules of the county court of the 14th Judicial Dis-

triet of Nebraska (rev. 1984) were introduced into evidence

and appear in the record. Rule 25 provides that all de-

mands for a jury trial in misdemeanor cases must be made

within 10 days following the entry of a plea of not guilty.

The rule draws no distinction between jury trials provided

for by statute and those constitutionally required.

The U.S. Constitution, through the due process clause

of the 14th amendment, requires the state to provide a

App. 7

trial by jury whenever the 6:h amendment would so require

if the case were in federal court. State v. Lynch, 223 Neb.

849, 394, N.W.2d 651 (1986). A jury trial is not constitu-

tionally required in every criminal case, but must be pro-

vided when the offense is ‘‘serious.’’ /d. A serious of-

fense is one which carries a maximum penalty in excess of

6 month’s imprisoninent. Baldwin v. New York, 39 US.

66, 90 S. Ct. 1886, 26 L. Ed. 2d 437 (1970).

The right to a jury trial is a personal right which may

be waived by the defendant. State v. Miles, 202 Neb. 126,

274 N.W.2d 153 (1979) ; State v. Godfrey, 182 Neb. 451, 155

N.W.2d 438 (1968), cert. denied 392 U.S. 937, 88 S. Ct. 2309,

20 L. Ed. 2d 1396. See, also, Fed. R. Crim. P. 23(a). A

voluntary waiver of this right must be express and intelli-

gent. State v. Miles, supra. See, also, Patton v. United

States, 281 U.S. 276, 50 8S. Ct. 253, 74 L. Ed. 854 (1930).

Waiver cannot be presumed from a silent record. State v.

Predmore, 220 Neb. 336, 370 N.W.2d 99 (1985).

The right to a jury trial is also provided by statute.

Neb. Rev. Stat. § 24-536 (Reissue 1985), provides that

‘*(e)ither party to any case in county court, except crim-

inal cases arising under city or village ordinances, traffic

infractions, and other infractions ... may demand a trial

by jury.’’ A demand is required to invoke the statutory

right to a jury trial. State v. Vernon, 218 Neb. 539, 356

N.W.2d 887 (1984). A failure to file a timely request in

accordance with the rules of court constitutes a waiver of

the statutory right to a jury trial. Jd. <A defendant

charged with driving under the influence, pursuant to Neb.

Rev. Stat. § 39-669.07 (Reissue 1984), has a right under

§ 24-536 to demand a jury trial. State v. Karel, 204 Neb.

573, 284 N.W.2d 12 (1979).

App. 8

The defendant was charged with four separate counts.

The charge of resisting arrest was filed pursuant to Neb.

Rev. Stat. § 28-904 (Reissue 1985). That offense is classi-

fied as a Class I misdemeanor, and carries a maximum pen-

alty of 1 years imprisonment, or a $1,000.00 fine, or both.

Neb. Rev. Stat. § 28-106 (Reissue 1985). It is a serious of-

fense for which a jury trial is constitutionally required un-

less waived by the defendant. See, Baldwin v. New York,

supra; Patton v. United States, supra.

There is no showing, on the record, that the defendant

waived a jury trial on this matter. To the contrary, the

defendant requested a jury trial and was denied it solely

on the grounds the request was untimely. Since the record

does not show that the defendant knowingly and intelli-

gently waived his right to a jury trial on the charge of re-

sisting arrest, the judgement on count IIT must be reversed

and the cause remanded for a new trial.

The charges of driving while under the influence of

drugs or alcohol pursuant to § 39.669.07 and refusing to

take a chemical test pursuant to Neb. Rev. Stat. § 39-669.08

(Reissue 1984) are class W misdemeanors and, for first of-

fense, carry maximum and mandatory penalties of 7 days’

imprisonment and fines of $200. § 28-106. They are petty

offenses for which a jury trial is not constitutionally re-

quired. See State v. Lynch, supra. As to these charges,

the defendant had not only a statutory right to a jury trial,

for which a proper demand was required. See, State v.

Karel, supra; State v. Vernon, supra.

The defendant requested a jury trial February 6, 1985,

more than 10 days after his plea of not guilty was entered

on January 17, 1985. His request was untimely under

the court rules and constituted a waiver of his statutory

App. 9

right to a jury trial on these charges. The county court

therefore properly overruled his request for a jury trial

on these charges.

The defendant also contends the evidence was insuffi-

cient to support the finding of guilty. As the cause is

being remanded on the charge of resisting arrest, we will

not review the evidence concerning that count.

In determining the sufficiency of the evidence,

“*(T)his court (will not) resolve conflicts in the evi-

dence, pass on the credibility of witnesses, determine

the plausibility of explanations, or weigh the evidence.

Such matters are for the trier of fact, and the verdict

must be sustained if, taking the view most favorable

to the State, there is sufficient evidence to support

ay

State v. Ellis, 223 Neb. 779, 783, 393, N.W.2d 719, 722

(1986) (citing State v. Rolling, 209 Neb. 243, 307 N.W.2d

123 (1981). A guilty verdict will not be reversed by this

court unless the evidence presented is so lacking in pro-

bative force that it is insufficient as a matter of law.

State v. Babajamia, 223 Neb. 804, 394 N.W.2d 289 (1986).

There was substantial evidence to support the court’s

finding that the defendant operated a motor vehicle while

intoxicated. Officer MeMullen testified the defendant

drove erratically, appeared intoxicated, and had a strong

odor of aleohol about him. Sergeant Stalder testified the

defendant was, in his opinion, ‘‘very intoxicated.’’ Al-

though the defendant disputed this testimony, it was suffi-

cient to support a conviction for operating a motor vehicle

while under the influence of alcohol. See Wisch v. Jensen,

221 Neb. 609, 379 N.W.2d 755 (1986).

App. 10

The finding that the defendant refused to submit to

a chemical test is also supported by the record. The test

used to determine whether a driver has refused to submit

to a test is whether the driver conducted himself in such

a way that a reasonable person would be justified in be-

lieving the driver had understood he had been asked to

take the test but refused to do so. Bauer v. Peterson, 212

Neb. 174, 322 N.W.2d 389 (1982). Officer MeMullen testi-

fied the defendant refused to sign the implied consent form

and twice refused to submit to a test of his blood alcohol

content. The judgment on that count was affirmed.

We note, as plain error, that the defendant was fined

$250 for first offense driving while intoxicated. Section

28-106 provides for a mandatory fine of $200 for this

offense. The fine imposed is excessive, and must be re-

duced to $200. Neb. Rev. Stat. § 29-2308 (Reissue 1985).

The judgement on count I, also modified, is affirmed.

The judgement on count I is affirmed as modified. The

judgement on count II is affirmed. The judgement on

count III is reversed and the cause remanded for a new

trial.

JUDGEMENT ON COUNT I AFFIRMED AS

MODIFIED.

JUDGEMENT ON COUNT IT AFFIRMED.

JUDGEMENT ON COUNT IIT REVERSED,

AND THE CAUSE REMANDED FOR A NEW

TRIAL.