State v. Benzel

• Decision Date: 12 July 1985
• Docket Number: No. 84-827,84-827
• Citation: 370 N.W.2d 501,220 Neb. 466
• Parties: STATE of Nebraska, Appellee, v. Jeffrey R. BENZEL, Appellant.
• Court: Nebraska Supreme Court

Page 501

370 N.W.2d 501

220 Neb. 466

STATE of Nebraska, Appellee, v. Jeffrey R. BENZEL, Appellant.

No. 84-827.

Supreme Court of Nebraska.

July 12, 1985.

Syllabus by the Court

1. Convictions: Appeal and Error. In determining the sufficiency of the evidence to sustain a conviction, it is not the province of this court to resolve conflicts in the evidence, pass on the credibility of witnesses, determine the plausibility of explanations, or weigh the evidence. Such matters are for the trier of fact, and a verdict made by the trier of fact must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support it.

2. Homicide: Intent. In a murder case the question of premeditation is for the jury to determine. No particular length of time for premeditation is required, provided that the intent to kill is formed before the act is committed and not simultaneously with the act that caused the death. The time needed for premeditation may be so short as to be instantaneous; the intent to kill may be formed at any moment before the homicide is committed.

3. Convictions. A conviction may be sustained if the guilt of the defendant is established beyond a reasonable doubt from all the evidence in the case, including such reasonable inferences as seem justified in the light of the trier of facts' own experience.

4. Criminal Law: Words and Phrases. Criminal attempt may be defined in part as intentionally engaging in conduct which, under the circumstances as the actor believes them to be, constitutes a substantial step in a course of conduct intended to culminate in the commission of the crime.

5. Criminal Law: Weapons. Even though a gun be unloaded and thereby incapable of causing death or injury, a person may be guilty of attempted murder or assault if the person pulling the trigger believes the gun to be loaded.

6. Records: Appeal and Error. It is incumbent upon the defendant on appeal from a criminal conviction to provide a record which demonstrates prejudicial error.

7. Trial: Records: Evidence: Proof. No extrinsic authentication is required for admissibility of a copy of an official record certified by its authorized custodian--a court reporter--who has complied with the rules of the Supreme Court as to certification.

8. Habitual Criminals: Prior Convictions: Appeal and Error. Any objections to the validity of proceedings in other cases, utilized for enhancement purposes, other than effective assistance of counsel or waiver thereof, must be raised on direct appeal or a separate proceeding to establish the invalidity of the proceedings.

9. Records: Courts. Generally, a document from a court may be authenticated by either the clerk or deputy clerk of that court.

10. Trial: Juries. A party, in selection of a jury, ordinarily has no right to examine a juror out of the presence of all other jurors, absent a showing of prejudice.

11. Criminal Law: Trial: Juries: Indictments and Informations. A defendant is not entitled to additional peremptory challenges because the indictment or information charges separate offenses in separate counts.

12. Juror Qualifications. A juror who opposes the death penalty may still be eligible to serve as a juror in a capital case as long as such juror is able to and does swear to decide guilt or innocence on the evidence and law as given in the jury instructions.

13. Juror Qualifications. A juror who has indicated an inability to fairly and impartially determine guilt by refusing to subordinate his or her own personal view and obey the law of the state must be excused for cause.

14. Trial: Waiver: Appeal and Error. A failure to make a timely objection to closing arguments is equivalent to failing to make an objection at all and waives any right to complain.

15. Trial: Prosecuting Attorneys: Juries: Motions for Mistrial. The general rule is that remarks of the prosecutor in final argument which do not mislead or unduly influence the jury do not rise to a level sufficient to require granting a mistrial.

16. Trial: Prosecuting Attorneys: Appeal and Error. Generally speaking, it is not prejudicial error for a prosecutor to make remarks in closing arguments based on deductions and inferences drawn from the evidence.

17. Criminal Law: Appeal and Error. In determining whether the rights of a defendant have been prejudiced such that a reversal is required, the claim of prejudice must be evaluated in the context of the entire record.

18. Appeal and Error. There is no ground for reversal where the error does not result in some demonstrative prejudice.

19. Sentences: Appeal and Error. Where the punishment of an offense created by statute is left to the discretion of the court to be exercised within certain prescribed limits, a sentence imposed within such limits will not be disturbed on appeal unless there appears to be an abuse of discretion.

20. Sentences. In an indeterminate sentence the minimum sentence may not exceed one-third the maximum sentence permitted by law.

Cunningham, Blackburn, VonSeggern, Livingston & Francis, Grand Island, for appellant.

Robert M. Spire, Atty. Gen., and Lynne R. Fritz, for appellee.

KRIVOSHA, C.J., and BOSLAUGH, WHITE, HASTINGS, CAPORALE, and SHANAHAN, JJ.

HASTINGS, Justice.

Defendant was convicted by a jury of the first degree murder of Terry Atkinson, use of a firearm to commit a felony, attempted first degree murder of Kim Christensen, and being a felon in possession of a firearm. In a separate proceeding he was found to be a habitual criminal. A three-judge panel sentenced defendant to a term of life imprisonment to be served consecutively to the other three sentences, which were 20 to 60 years, 30 to 60 years, and 10 to 60 years consecutively. Defendant has appealed, and we affirm except as to count III.

Defendant assigns as errors: (1) The insufficiency of the evidence to support convictions for first degree murder and attempted murder, and for being a habitual criminal; (2) Erroneous rulings by the trial court regarding jury selection; (3) Failure to grant a mistrial because of prosecutorial misconduct; and (4) Errors in sentencing.

There was conflicting testimony at trial surrounding the facts of the case. However, in determining the sufficiency of the evidence to sustain a conviction, it is not the province of this court to resolve conflicts in the evidence, pass on the credibility of witnesses, determine the plausibility of explanations, or weigh the evidence. Such matters are for the trier of fact, and a verdict made by the trier of fact must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support it. State v. Sutton, 220 Neb. 128, 368 N.W.2d 492 (1985); State v. Goodon, 219 Neb. 186, 361 N.W.2d 537 (1985); State v. Smith, 219 Neb. 176, 361 N.W.2d 532 (1985).

The evidence reveals the defendant admitted shooting the decedent, Terry Atkinson, with a .357 Magnum on December 12, 1983. According to Lorene Golle, the defendant's girl friend, she, the defendant, and a friend had gone to the Atkinson-Christensen house on December 9 to purchase drugs. Prior to going, Lorene informed the defendant she had already paid Kim Christensen, the decedent's girl friend, for the drugs the preceding Friday night, December 9, although she admitted in court she actually had not. En route to the house on December 12, the defendant told Lorene, "If I don't get what we came here for, someone's going to get dropped."

When Lorene and the defendant entered the house, Lorene asked to use the bathroom and borrow a brush. Kim showed her to the bathroom and asked what had happened to Lorene, as she appeared to have been beaten around the face. Kim left the bathroom as the defendant approached, wanting to talk to Lorene. The defendant entered, shut the door, and then Kim heard "a racket" in the bathroom, with Lorene shouting and some banging against the walls.

Terry came from the living room and twice told Lorene and the defendant to leave. The defendant grabbed Lorene and started pushing her toward the front door. Before pushing Lorene out, the defendant said he wanted to talk to Kim about being paid for the drugs. After Lorene left, Kim testified the defendant turned, grabbed her, and pointed a gun at her head, which prompted Terry to go to his bedroom where he kept a shotgun. The defendant followed and tried to kick the bedroom door in. When he could not, he returned to the living room, again grabbed Kim and put the gun to her head. He then told her, "Do you want to see something go on here? Do you want to see something happen, huh?" and then, "Better yet," and pointed the gun straight out in the direction of the bedroom, and said, "If your old man comes out and does what I think he's doing, he's going to be a dead man." As the decedent returned from the bedroom, defendant shot him in the mouth, and the victim fell to the floor.

The defendant then stood 5 or 6 feet from Kim, with his legs spread and both hands on the gun straight out "like that," as she crouched by the living room sofa. She heard the gun click and saw it (the cylinder) go around. She heard three more clicks and saw the defendant "looking at the gun like this," and then he ran from the house.

The defendant claims that only after the decedent returned to the living room with the shotgun leveled at him did he pull his gun and shoot the decedent in self-defense. He insists that the evidence is insufficient to establish premeditation, a necessary element of first degree murder. Neb.Rev.Stat. § 28-303 (Reissue 1979).

The question of premeditation was for the jury to determine. State v. Jones, 217 Neb. 435, 350 N.W.2d 11 (1984). No particular length of time for premeditation is required, provided that the intent to kill is formed before the act is committed and not simultaneously with the act that caused the death. Jones, supra; State v Nokes, 192 Neb. 844, 224 N.W.2d 776 (1975); Savary v. State, 62 Neb....