State v. Otey, 42204
| Decision Date | 18 December 1979 |
| Docket Number | No. 42204,42204 |
| Citation | 205 Neb. 90,287 N.W.2d 36 |
| Parties | STATE of Nebraska, Appellee, v. Harold Lamont OTEY, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Continuances: Time. A motion for a continuance is addressed to the sound discretion of the trial court, and an order denying a continuance will not be disturbed in the absence of a showing of a clear abuse of discretion.
2. Continuances: Evidence. Where the purpose of a continuance is to obtain the testimony of witnesses who are absent from the jurisdiction, a showing should be made that the witnesses can be located, that they will testify, and that their testimony would be relevant.
3. Criminal Law: Indictments and Informations. The indorsement of the names of additional witnesses upon the information just before trial is a practice that should be avoided.
4. Jurors. When the disqualification of a juror is not discovered until after the jury has been sworn, the juror should be excused and an alternate juror seated.
5. Criminal Law: Evidence. The State is entitled to prove any fact or circumstance which tends to establish any element of the crime, even though the fact or circumstance may prove or tend to prove another crime.
6. Criminal Law: Statutes: Death Penalty: Constitutional Law. The sentencing procedure provided by the Nebraska death penalty statute does not violate either the Nebraska or the federal Constitution.
7. Criminal Law: Statutes: Sexual Sociopaths. The purpose of the sexual sociopath law is to provide confinement with treatment for those persons subject to the law who are amenable to treatment, and confinement without treatment for those subject to the law but not amenable to treatment.
8. Criminal Law: Sexual Sociopaths: Death Penalty. A determination as to whether a defendant is a sexual sociopath is of no importance where a death sentence has been imposed.
S. J. Albracht of Lathrop, Albracht & Swenson, Omaha, for appellant.
Paul L. Douglas, Atty. Gen., and Sharon M. Lindgren, Asst. Atty. Gen., Lincoln, for appellee.
Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE, and HASTINGS, JJ.
The defendant, Harold Lamont Otey, was convicted of first degree murder in the perpetration of a sexual assault in the first degree. He was sentenced to death and the case is here for review pursuant to section 29-2525, R.R.S.1943. The assignments of error relate to the denial of a continuance requested by the defendant; the discharge of a juror by the trial court; the admission of evidence relating to a subsequent assault; and the imposition of the death penalty. The defendant also contends that he should have been declared a sexual sociopath and that the Nebraska death penalty statutes are unconstitutional. There is no contention that the evidence was not sufficient to support the finding of guilty beyond a reasonable doubt.
The murder was committed during the early morning hours of June 11, 1977, in Omaha, Nebraska. The defendant entered the apartment of the victim and took a stereo set which he placed behind a garage nearby. This stereo was later identified and traced back to the defendant.
The victim awakened when the defendant reentered the apartment. The defendant told the victim that he was going to rob her and that he would rape her. When she resisted he inflicted a knife wound across the top of her forehead. The defendant then sexually assaulted the victim. After the sexual assault the defendant and the victim went to the second floor of the apartment to get her money. There the defendant stabbed the victim a number of times inflicting deep wounds, struck her about the head with a hammer, and strangled her with a belt. The evidence shows that the victim died from the multiple wounds and strangulation inflicted upon her by the defendant.
The defendant was apprehended in Florida in January 1978. On January 28, 1978, he was interviewed there by two Omaha police officers and after proper warnings gave a voluntary statement which was a full confession. The statement was received in evidence and there is no contention here that the statement was not voluntary or should not have been received in evidence.
The information which was filed on February 1, 1978, listed only the name of a police officer at the time it was filed. The case was set for trial on April 5, 1978. On March 23, 1978, the county attorney notified the defendant that the State would ask leave to endorse the names of 44 additional witnesses upon the information. On March 31, 1978, the defendant moved for a continuance which was denied on April 5, 1978. The motion alleged that additional time was required to prepare for trial because the defendant was undergoing psychiatric evaluation and defense counsel had been unable to locate certain possible defense witnesses. There was no showing made as to names of any witnesses, other than a Donald Lawrence, or as to what their testimony would be. The trial court offered to allow defense counsel to disclose in camera what the nature of the testimony might be, but the offer was not accepted.
A motion for a continuance is addressed to the sound discretion of the trial court, and an order denying a continuance will not be disturbed in the absence of a showing of a clear abuse of discretion. State v. Newton, 193 Neb. 129, 225 N.W.2d 562. Where the purpose of a continuance is to obtain the testimony of witnesses who are absent from the jurisdiction, a showing should be made that the witnesses can be located, that they will testify, and that their testimony would be relevant. There was no showing made in support of the continuance requested in this case.
There is some indication from the argument on the motion that defense counsel was attempting to find evidence for a possible alibi defense, but counsel did not accept the trial court's offer to allow a showing to be made in camera. The defendant did not testify at the trial and no alibi evidence was produced. Also, there was no issue raised concerning the mental responsibility of the defendant.
The record does not show that the defendant was prejudiced by being brought to trial on April 6, 1978. The information had been on file for more than 60 days and, in the absence of a showing of special facts or circumstances, there is no basis on which to conclude that the defendant did not have a reasonable time in which to prepare for trial.
The indorsement of the names of additional witnesses just before trial is a practice that should be avoided. Here the defendant was given less than one week's notice before the trial commenced. However, the record shows that these were prosecution witnesses, most of whose names appeared in the police reports that had been furnished to the defendant or they are otherwise identified in the record. There is no claim of surprise and no showing of actual prejudice because of the late indorsement of names. Under the circumstances in this case, it was not an abuse of discretion to refuse a continuance on that ground. We conclude that the record fails to show an abuse of discretion in denying a continuance to the defendant.
After the jury had been sworn, but before the trial had commenced, one of the jurors approached the trial court and stated that he could not be a fair and impartial juror because the defendant, if convicted, might be sentenced to death. With the defendant present the trial court informed both counsel and offered to allow them to question the juror. After both counsel declined the trial court...
To continue reading
Request your trial
-
State v. Reeves, 81-706
...881 (1977); State v. Rust, 197 Neb. 528, 250 N.W.2d 867 (1977); State v. Stewart, 197 Neb. 497, 250 N.W.2d 849 (1977); State v. Otey, 205 Neb. 90, 287 N.W.2d 36 (1979); State v. Anderson and Hochstein, The defendant argues that the death penalty statute, as construed in State v. Anderson an......
-
State v. Moore
...v. Joubert, 224 Neb. 411, 399 N.W.2d 237 (1986), cert. denied 484 U.S. 905, 108 S.Ct. 247, 98 L.Ed.2d 205 (1987), and State v. Otey, 205 Neb. 90, 287 N.W.2d 36 (1979), cert. denied 446 U.S. 988, 100 S.Ct. 2974, 64 L.Ed.2d 846 (1980), the aggravating circumstance was found to exist when the ......
-
State v. Gales
...v. Harper, 208 Neb. 568, 304 N.W.2d 663 (1981); State v. Anderson and Hochstein, 207 Neb. 51, 296 N.W.2d 440 (1980); State v. Otey, 205 Neb. 90, 287 N.W.2d 36 (1979); State v. Williams, 205 Neb. 56, 287 N.W.2d 18 (1979); State v. Peery, 199 Neb. 656, 261 N.W.2d 95 (1977); State v. Simants, ......
-
State Of Neb. v. Sandoval
...when facts showed torture, sadism, sexual abuse, and infliction of extreme suffering for prolonged period of time); State v. Otey, 205 Neb. 90, 96, 287 N.W.2d 36, 41 (1979) (murder was “ ‘especially heinous, atrocious, [or] cruel’ ” when defendant sexually assaulted victim). Before the U.S.......
-
Arbitrariness and Discrimination in the Administration of the Death Penalty: a Legal and Empirical Analysis of the Nebraska Experience (1973-1999)
...433 (1984); State v. Moore (I), 210 Neb. 457, 316 N.W.2d 33 (1982); State v. Harper, 208 Neb. 568, 304 N.W.2d 663 (1981); State v. Otey, 205 Neb. 90, 287 N.W.2d 36 (1979); State v. Peery, 199 Neb. 656, 261 N.W.2d 36 (1979); State v. Holtan, 197 Neb. 544, 250 N.W.2d 876 (1977); State v. Sima......