*1 appellee, Nebraska, v. appellant. 11, 1992. Filed December No. S-91-487. *2 Paine, Jr., Higgins, of Huston David C. and John R. Huston appellant. T. for Higgins, & and David Schroeder General, Attorney and Kirk Brown for Stenberg, Don J.
appellee. C.J.,
Hastings, White, Caporale, Shanahan, Boslaugh, and JJ. Fahrnbruch, Grant,
Per Curiam. Drinkwalter, of first appellant, was convicted felony deadly weapon of a commit a degree murder and use to beating Drinkwalter. The defendant was in the death of Esther imprisonment on the murder count and to sentenced death years weapon 12 6 to on the count. for assigned appeal, has as error that the
Upon the defendant cousin, permitting in the defendant’s Jim (1) trial court erred testify told 5 that the victim him some months of to her that she was fearful over prior murder foundation, relevancy, hearsay grounds; and in objection (2) on failing expert’s fragments to strike an conclusion apartment were from scene found in a in the defendant’s crime; (3) instructing in at the commencement of “in a case the determines the trial that criminal verdict”; a enough support or evidence whether not there in defining “premeditation” and “reasonable doubt” (4) and at the commencement of the the instructions to both jury. final instructions to trial and its conviction, court reviewing appellate criminal an must In a light prevailing most favorable to the the evidence view An court not resolve conflicts in the party. appellate does witnesses, reweigh evidence, pass credibility of or on the fact, are the finder and verdict Such matters evidence. error, if affirmed, properly in the absence will be 42 evidence, favorably
admitted viewed construed most State, Davis, support is sufficient conviction. State v. See, also, Houser, Neb. State v. 525, 490 N.W.2d 168(1992). Neb. appeal, challenge sufficiency On the defendant does not of the evidence to sustain his conviction. In that respect the victim, record shows that who was the defendant’s grandmother, years age and lived herself a Valentine, duplex in Nebraska. 1,1989, approximately p.m.
At on November the victim’s neighbor, Ohlmann, knocking Emma heard a sound on the wall separated duplex. and Ohlmann’s victim’s Ohlmann also dropping. heard noise that sounded like a chair After a attempt failed telephone, to reach the victim Ohlmann Kenan, neighbor. contacted Don next door Kenan immediately duplex walked over to the on check the victim apartment found the ajar. door her to be When Kenan apartment, entered the body he discovered the victim’s nude lying floor. Christiansen, *3 Cherry
Melvin of County, sheriff who investigated murder, testified that when he entered the apartment badly he body saw a lying mutilated of female inside apartment the door of the large next to a couch. A amount of tissue lying from the head on was the floor. Some tissue, fragments, large brain bone and a amount of blood were near the head body. of the A ball peen 16-ounce hammer was lying on floor next to the A head. knife was visible in directly eye. embedded the victim’sface below the Sheriff Christiansen also testified that in one drawer apartment kitchen of the open, was appeared drawer body nude, contain various tools. The victim’s was clothing but was found a next to table in the same room. photographs Four lying body. were on or near the photographs appeared The to be family-type photographs that picture came from broken frames hanging had been on apartment. the south wall of the A pack cigarettes of lying Marlboro was on the of back the victim. cigarettes Several lying were on the floor the arm of the pool victim in a of blood. Broken from the broken picture lay frames on the floor and on the davenport. Two telephone cord apartment. The cigarette butts were cut. Sheriff living room had been telephone entry sign no of forced there was testified that Christiansen also apartment. the victim’s 1989, Moedy an performed Auch Dr. Joe On November Kearney, Dr. Auch Nebraska. body on victim’s autopsy very of face showed evidence Moedy that the victim’s testified causing including jagged, multiple wounds injury, extensive wounds, lacerations, fractures of the and irregular incised ordinary table knife was and the skull. An bones of face entering eye, into the just the left embedded the face below maxillary present dried was on great A deal of blood left sinus. chest, face, on Dried her and her abdomen. the victim’s on legs According on arms. present blood was the victim’s also multiple death was Moedy, Dr. Auch the cause of the victim’s face, head, injuries to the victim’s brain. wounds sharp, incised were with both blunt trauma and head consistent of Moedy multiple Dr. testified to fractures trauma. Auch also fragments had bone the bones of the face and skull. Some blow indentations in that were consistent with a caused them Moedy possible not hammer. Auch testified it was Dr. wounds to the head and count the actual number individual face, he be at least 10and but number blows to estimated many injuries as A number to the victim’s ribs as 20. heavy with as and were consistent described mirror fractures Moedy Auch sitting individual on the victim. Dr. testified that opinion, victim alive when the blows her head in his was However, he that she was dead the time first started. believed face, was in her the knife inserted based no evidence active However, surrounding bleeding into tissues the knife. it the victim alive when the possible stated that was the victim tried knife was inserted. There was also evidence that assailant, presence against to defend her based on herself on the back of one of victim’shands. a defense wound old, years is 27 6 feet *4 tall, weighs approximately 425 pounds. inches murder investigation begin did not to center on defendant until murder, day following the murder. At the time employed defendant as a at Texaco Oil mechanic Hass Valentine, Lutter, police station in Nebraska. James chief of day Department, Police Valentine testified that on the after murder, approximately he met with the defendant at 11a.m. place employment. defendant’s Lutter four noticed scratch hand marks across back the defendant’s left that appeared to fresh. time be At that the defendant told Lutter evening previous he had remained at work for the purpose working pickup p.m., on his until 8:30 then he had gone minutes, to Bruce Kneifl’s house for a few then had Dairy supper. driven to the eat Sweet to The defendant also told Lutter that after he had he went home eaten around 9:30 and evening. did not again leave Bruce Kneifl testified that he night 1,1989. did not seethe defendant on the of November cousin, grandson victim’s and defendant’s Jim Drinkwalter, family gathering testified a that at later in the week murder, after victim’s he noticed scratches across the back of the defendant’s hand. 13, 1989,
On November in a search of the defendant’s apartment, rug throw trap a and a from the defendant’s lavatory Body fluid samples seized. were also obtained day, including from the defendant on this blood and saliva samples. Roy,
Reena serologist forensic with the Nebraska State Patrol, analyzed samples blood and saliva from the victim and Roy analyzed from the defendant. also trace evidence taken from the scene of the crime and from the defendant’s apartment. Roy victim, testified that she determined that the type Esther had A blood and the Randy Drinkwalter, type Roy analyzed had O blood. bloodstain taken from the from taken the defendant’s apartment, which type bloodstain was found to be andA could Roy have come type from murder victim. also found A trap blood the sink apartment, taken the defendant’s which blood also could have come from the victim. After examining fingernail victim, samples taken from the Roy determined six type them, of the nails had blood A under which was consistent with blood. victim’s Four of the them, fingernails type had blood under O which was consistent
[45] from the cigarette butts type. blood with the defendant’s Roy determined that analyzed. were also scene of the crime population, the percent of Caucasian approximately cigarettes. the could have smoked including the Patterson, Nebraska State criminalist with the Jeffrey scene Patrol, glass found at the analyzed fragments of broken measuring Patterson, the According the to of murder. differentiating between index is the best method refractive four discovered types glass fragments. Patterson the of glass. among samples five of broken indices different refractive rug the glass taken from fragments Five of found the samples index, which refractive apartment all had the same defendant’s at glass found the scene was to the refractive index similar absolutely he not the testified that could crime. Patterson rug fragments were determine that only say refractive He at scene of crime. could test establishes that index the same. The refractive index was may origins. The refractive glass fragments two have common community as accepted index the scientific test fragments small determining distinguishing factors between glass. at the trial on his own behalf. Drinkwalter testified prior apartment was furnished The defendant testified his living during taken of his to his there and that search time he apartment present apartment prior was murder, night moved in. As to whereabouts on the his evening stated that he worked that until defendant stayed approximately p.m. work hours to and then after go did not to Bruce pickup. work on his He testified he p.m. night. approximately He left work at 8:30 Kneifl’s that shower, eat, Dairy going After home he drove Sweet four-piece arriving p.m. He between 9 and 9:20 ordered a to minutes chicken dinner that took 15 20 to cook. The broasted got the dinner around 9:35 and ate defendant testified that Dairy it. left Sweet between and 10 all of The defendant 9:45 p.m. apartment, and then drove back to his was seven to away. visited his eight The last time the defendant had blocks to 4 approximately grandmother, Esther stated that he never prior months to her death. The defendant grandmother go never visited his because he found the time to there. 1, 1989, Dairy patrons
Several Sweet on November approximate testified time as defendant’s departure departure ranged from the restaurant. The times p.m. from 9:30 to 9:50 pertain assignments evidentiary
The first two error two rulings argues at trial which the defendant require judgment error which therefore be *6 alleged pertains testimony by reversed. The first error to grandson, defendant’s cousin and Jim victim’s 21, concerning a conversation had with on the victim June 1989. Jim Drinkwalter was asked at trial whether his grandmother had ever made a him regard statement to with feelings her Randy about the Drinkwalter. Defense objected question foundation, counsel to this based relevance, hearsay. objection and court overruled the without permitted following testimony: comment and
A. I asked her if ever come over and visited her. AndQ. respond? did she A. Yes. say? What did she
Q. says “No, me,” A. glad, She I’m because he scares I says, you?” then come back and “He scares and she says, “Yes.” testimony hearsay
It is clear that this is under Neb. Rev. Stat. (Reissue 1989). 27-801 § The next consideration is whether the testimony any recognized under exception admissible hearsay rule. It is not evident from the record what the trial court’s for basis the admission of the statement appears was. It testimony that the prove was offered to the victim’s state of mind, is, her stated fear of the defendant. The state exception hearsay mind rule allows admission of extrajudicial statements to show the state of mind of the declarant if the state of mind of the declarant at the time the See, statement was made an issue case. Neb. Rev. Stat. 27-803(2) (Reissue Harrison, 1989); § v. Regardless whether the statement in
question fit would within exception Nebraska’s state of mind alleged fear rule, victim’s hearsay appear does not it relevant was made is at the time the statement of the defendant any in this case. issue 1989), relevant (Reissue Rev. 27-401 Under Neb. Stat. § any tendency to make the having “evidence evidence means the determination any consequence that is of existence of fact it would be probable probable or less than of the action more Further, under Neb. Rev. Stat. 27-403 without the evidence.” § relevant, may “[although evidence be excluded (Reissue 1989), danger substantially outweighed probative if its value is issues, misleading the or prejudice, unfair confusion of jury... presentation of cumulative evidence.” or needless Brown, 1973), the (D.C. F.2d 758 Cir.
In United States v. receiving hearsay dangers court discussed the court’s In involving the victim’s fears of the defendant. evidence prior of fear of the determining whether a victim’s statement admissible, court stated: defendant would be the Brown First, of mind must be relevant to some the victim’s state as, example, where an issue of material issue in the case self-defense, suicide, death is raised or accidental Second, extrajudicial itself must defendant. statement question state of mind probative be on that of the victim’s inquiry. relevant once it is conceded that this is a valid and 774. 490 F.2d at The Brown court also noted: *7 better reasoned The rule then to be distilled from the extra-judicial of decisions is that a victim’s declarations under the state of fear of the defendant are admissible hearsay only if exception mind to the rule . . . there is a e., evidence, if is relevant to a manifest need for such i. it issue in the case. Where there is a substantial material prejudice to the defendant’s case the likelihood of testimony, if it of such it is inadmissible bears admission legal relationship or artificial to the or a remote there is raised in the case. Even where factual issues relevance, matters in the the additional factual substantial may simply explosive be too to be contained statement instruction, exclusion of the limiting the which case testimony is also necessitated. F.2d at 773-74. it the the present
In the case is clear that victim’s fear of suicide, possibilities not relevant. defendant was of self-defense, not at case. or accidental death were issue in this relevant, Further, fear were even if statement of highly prejudicial statement to the defendant. It is was danger that there reasonable to assume was of grandson would infer from victim’s statement fear of her grandmother had past that the defendant threatened his person committing or capable that he was murder. Therefore, highly based on the lack of relevance and the statement, it nature was error to overrule objections testimony. defense counsel’s to this assignment pertains The second of error to a made statement witnesses, Patterson, expert one of the regard State’s with opinions analysis comparison glass his on his based fragments. compared glass fragments Patterson tested and glass fragments taken from the scene of the crime found ruga apartment. taken from defendant’s Patterson testified regard process by with to the which “refractive index” of glass fragments determined. Patterson also testified that this process way reported distinguish “is be the best between fragments glass.” When was opinion Patterson asked his regard comparison glass fragments with found at glass fragments scene of the crime and rug found in the taken apartment, from the defendant’s he testified that the refractive fragments glass indices of the five rug taken from the were identical samples and matched the refractive index of one of the taken from the scene of the crime. Patterson testified absolutely fragments could not determine recovered rug glass from the scene of the crime. He testify only stated that he could that the refractive indices of fragments glass were the same and rug found in the similar to found at the alleged scene of the crime. The pertains error following question and answer made at end testimony: of Patterson’s direct “Q. And itself alone, gláss contained was from scene of the crime? A. Yes.” objected made,
Defense counsel after this statement was grounds improper or foundation relevance. Defense *8 trial court response. to strike the then moved counsel late. stating was too objection, that the motion this overruled was argues that the statement defendant rug that the error, jury impression with the it left the as originated at glass fragments which had conclusively contained testimony previous crime. Based on Patterson’s the scene of the absolutely fragments that the not determine could .he rug glass at the scene of from the were from recovered counsel’s crime, have sustained defense the trial court should leading question that the the answer to the motion to strike the scene of the crime. glass “alone” from contained case, evidential jury trial of a criminal an erroneous In a to a defendant unless ruling prejudice results in beyond was harmless a reasonable that the error demonstrates Messersmith, N.W.2d 83 State v. doubt. Coleman, 800, 478 Neb. N.W.2d 349 (1991); State v. jury in this case would have
We cannot determine how the been told that the remaining evidence if it had not evaluated Likewise, we cannot of the defendant. victim was afraid jury expert’s effect on the affirmative determine the rug in the defendant’s leading question answer to of the crime. apartment contained “alone” from scene jury, largely presented the evidence This is true because based, entirely upon which a conviction was was almost Accordingly, say we that the error are unable to circumstantial. testimony harmless improper admission of the beyond doubt. a reasonable assignments pertain
The defendant’s next of error to a during preliminary made the trial court its statement instruction to the at the commencement of “premeditation” definitions of and to the trial court’s given doubt” both at the com- “reasonable during mencement of the trial and the trial court’s final jury. instructions to the jury, the judge’s pretrial statement to the
During the trial part: in relevant stated you give I gentlemen, at this time want Ladies and you might help about the trial. It little bit of orientation disputed decide your function. You are here to perform *9 Now, any is your disputed of fact. decision on fact issues you Perhaps be easier for to understand final. it would you my your jurors if function as a function as understood judge. judge The is he a has three functions: One is sort of parties. judge between In the referee the that function made, objections might the and be rules on evidence that doing attempts recognized and so that in he to see followed, practices procedures and are and that proceedings parties Secondly, judge between the are fair. a applicable decide law is must what the that is to that case, lastly, particular jury and must instruct the toas what that law is. somebody crime, pleads
Now when all innocent a in disputed. facts are issue. All facts are is defendant — innocent, presumed statute the State will evidence, introduce will defendant introduce such you evidence as he I will chooses. instruct as to the facts beyond prove must a reasonable doubt to find guilty of charged. the defendant crimes You will then — proved decide whether the State has the material facts beyond the material of the elements crime a reasonable doubt, and your accordingly. render decision Your is decision final.
Now, in a judge only criminal case the determines enough whether or is not there evidence support a verdict, and jury instructs on law. The guilt determination of or upon jury. innocence is then argues The defendant judge’s that “in statement that a judge only criminal case the determines whether or not there is enough support evidence a verdict” was error. argues
The defendant that this comment was improper jury that impression the statement left with that if a of guilty degree verdict form murder the first is submitted then, jury, event, and in judge that is of opinion enough that there support evidence to a such verdict. (Reissue
Neb. Rev. Stat. 1989), provides 29-2016 § procedure trial, the order of require for a criminal does not preliminary a given jury. However, instruction be even though preliminary a jury instruction required, is not such Proposed commonplace, and the become instructions have a Jury recommends Criminal Instructions Nebraska given. recommended preliminary jury instruction be Nebraska proposed in the preliminary instruction similar Jury not contain statement Criminal Instructions does case, “in was used the trial court this to the one which only not there is judge whether or a criminal case the determines verdict____” support enough evidence to 278, 286, State, In N.W.2d Hansen v.
(1942), this court stated: rule, duty general to abstain
As a “It is court any carefully opinion or comment expression * * * evidence, charge in its the facts or not otherwise but also on the examination of witnesses and during The trial not the course of the trial. should *10 bearing deny any the existence of fact on the innocence accused, any inquiry presence of or make remark or jury concerning of fact at which indicates matters issue opinion as to such facts.” his (1940). 23 C.J.S. Law 993
Quoting
Criminal
§
exception
With the
of the erroneous admission or exclusion
evidence,
claiming
a defendant
reversible
in a criminal
error
during
case
must demonstrate that the trial court’s conduct
proceeding against
prejudiced
the defendant
or otherwise
adversely
right
v.
affected substantial
defendant. State
Messersmith,
924,
appears
238 Neb.
indicative of a probable miscarriage justice. State v. Lohman, 503,466 237 Neb. (1991). N.W.2d 534
Regardless assignment of whether properly this of error was preserved review, appellate “premeditation” definition appears to be sound. The trial court this case defined “ “premeditation” as follows: ‘Premeditation’ is defined as forming the intent acting. to act before The time needed for premeditation may be so short as to be provided instantaneous the intent to act is formed before the act and not Batiste, 481, simultaneous with the act.” In State v. 231 Neb. 491, 437 125, 132 N.W.2d (1989), this court stated:
“Premeditated” design means to have formed a commit an act it before is done. See Neb. Rev. Stat. (Reissue 28-302 1985). person “pre- A kills with § causing meditated malice” if before the act the death occurs, he or she has formed the intent or determined to kill legal justification. the victim without The Batiste court further stated: question premeditation
“The was for the Jones, 435, determine. State 217 v. Neb.
(1984). particular length No premeditation of time for required, provided that the intent to kill is formed before simultaneously the act is committed and not with the act Jones, Nokes, that caused the death. supra; State v. 192 844, State, Neb. (1975); Savary N.W.2d 776 v. 166, Neb. 87 N.W. The time needed for premeditation may instantaneous; be so short as to be may any intent to kill be formed at moment before the Bautista, homicide is committed. State v. Nokes, (1975); N.W.2d 835 supra.” *11 492,
231
132,
Neb. at
437
quoting
Benzel,
N.W.2d at
State v.
466,
220 Neb.
The argues defendant also the reasonable doubt given instruction in improper light this case was in of the U.S. Supreme Cage Louisiana, Court’s decision in v. 498 U.S. 39, 328, 111 S. Ct. 112 L. Ed. 2d (1990). This issue has previously been Morley, resolved this court in State v. recently This 141, court Neb. Lewis, Morley holding in v. reaffirmed that a Morley, court determined 518 (1992). N. W. In this 2d nearly instruction instruction identical reasonable doubt Accordingly, Cage decision. given complied with the this case merit. assignment of error is also without this regard to have reached in In view the conclusions which we discussed, it is assignments been of error which have assignments of error any unnecessary to consider other defendant, including relating sentence. made those for a new is cause remanded judgment reversed trial. new trial. and remanded Reversed J., dissenting part.
Boslaugh, only opinion that holds that part I dissent from that jury at the of the trial court to the commencement statement case of the that in a criminal determines support enough is evidence to a verdict was whether or not there prejudicial. erroneous and if at the end of the trial quite
It would seem to be obvious that jury they retire to the court verdict forms before submits forms, deliberate, including guilty guilty not the court both believed, State, is determined that the evidence of the if has support guilty. a verdict of sufficient to given case jury in this instructions which the end of the trial were in the usual form and advised presented that if it evidence the State had proved beyond a of the reasonable doubt all elements instructions, it should charged, crimes were set out in the way me that is but guilty. find the defendant seems to another It court in which the court tells the has determined sufficient, believed, that the evidence of the State if support guilty. verdict my preliminary
In opinion, the statement made prejudicial. instruction was neither erroneous nor