State v. Henry
| Decision Date | 26 February 2016 |
| Docket Number | No. S–14–519.,S–14–519. |
| Citation | 292 Neb. 834,875 N.W.2d 374 |
| Parties | State of Nebraska, appellee, v. Eric M. Henry, appellant. |
| Court | Nebraska Supreme Court |
292 Neb. 834
875 N.W.2d 374
State of Nebraska, appellee,
v.
Eric M. Henry, appellant.
No. S–14–519.
Supreme Court of Nebraska.
Filed February 26, 2016.
Mark M. Sipple and Erik C. Klutman, of Sipple, Hansen, Emerson, Schumacher & Klutman, Columbus, for appellant.
Douglas J. Peterson, Attorney General, and James D. Smith, Lincoln, for appellee.
Heavican, C.J., Wright, Connolly, McCormack, Miller–Lerman, and Cassel, JJ., and Moore, Chief Judge.
Wright, J.
I. NATURE OF CASE
Eric M. Henry was convicted of felony murder, use of a deadly weapon to commit a felony, and conspiracy to commit robbery for his involvement in the stabbing death of Steven T. Jorgensen. He was sentenced to consecutive terms of life imprisonment, 40 to 50 years' imprisonment, and 10 to 20 years' imprisonment, respectively.
On appeal, Henry assigns error to the overruling of various pretrial motions, including a motion in limine, a motion for a bill of particulars, and a motion to sever. He also challenges the admission and handling of certain evidence and the giving of an instruction. We affirm.
II. BACKGROUND
1. CRIMINAL CHARGES
On December 20, 2013, Henry was charged by amended information with four counts. Count I alleged that he committed the first degree murder of Jorgensen "in the perpetration of or attempt to perpetrate a robbery." Count II charged use of a deadly weapon to commit a felony. Count III charged possession of a deadly weapon (brass or iron knuckles) by a prohibited person. Count IV charged criminal conspiracy to commit robbery. Specifically, count IV alleged that
on or about May 17 or May 18, 2013, in Platte County, Nebraska, ... Henry, with the intent to promote or facilitate the commission of felony robbery, did agree with one or more persons to engage in the result specified by the definition of the offense of robbery, and he or another person with whom he conspired committed an overt act in pursuance of the conspiracy, including at least one of the following overt acts:
1) Transported or aided the transporting of Quentin Critser from Lincoln to Platte County;
2) Attempted to obtain a gun;
3) Gave iron or brass knuckles to Quentin Critser; or
4) Went to the residence of a potential robbery victim or victims[.]
Henry moved for a bill of particulars stating "with precision and specificity the name of the ‘potential robbery victim or victims' as set forth in Count IV of its Amended Information." The district court overruled the motion, after which Henry moved to sever count IV from the other counts. The motion to sever was also overruled.
2. MOTION IN LIMINE
Prior to trial, Henry filed a motion in limine challenging the admissibility of any evidence of the autopsy performed on Jorgensen's body, including any testimony of Dr. Robert Bowen, the pathologist. Bowen had performed an autopsy on Jorgensen's body on May 23, 2013. On May 24, the county attorney for Platte County, Nebraska, had authorized, at the request of Jorgensen's family, the release of Jorgensen's body for cremation.
Henry alleged that it would be a violation of due process and Neb.Rev.Stat. § 29–1913 (Reissue 2008) to permit the State to adduce evidence derived from examining and testing the body, because it had been destroyed before Henry had the opportunity to have it independently examined or tested. He claimed that in releasing the body for cremation, the Platte County Attorney had acted intentionally but not in bad faith.
Aside from photographs and the autopsy results, several tissue samples were apparently retained. Fingerprints were also taken, Jorgensen's clothing and a gag were collected, swabs and clippings from his fingernails were taken, and hairs were collected. However, a full accounting of what body parts or samples may have been retained was not given.
Henry did not file a motion under § 29–1913(1) asking the court to make available to the defense the evidence necessary to make tests or analyses of "ballistics, firearms identification, fingerprints, blood, semen, or other stains" like those conducted by the prosecution. Henry did not advise the prosecution that he wished the body preserved for an independent autopsy, because the body was cremated prior to bringing charges against Henry. The district court overruled Henry's pretrial motion in limine.
3. JURY TRIAL
The jury trial of Henry took place over 7 trial days. The parties stipulated that Henry had been convicted of a felony in 2007. They also stipulated that Jorgensen's DNA was the only DNA identified on any of the items seized from the crime
scene, including the knife in Jorgensen's throat and the gag in his mouth. These items were tested for fingerprints, but they yielded no identifiable prints.
(a) Discovery of Jorgensen
Officer Dale Ciboron testified that he and two other officers with the police department in Columbus, Nebraska, discovered Jorgensen's body after being dispatched to Jorgensen's house for a welfare check on May 22, 2013. Jorgensen had not reported to work for several days. Jorgensen's supervisor testified that he last saw Jorgensen at work on May 17 and that the date was a payday. Jorgensen did not show up at work as expected on either Saturday or Monday.
Upon entering Jorgensen's house, Ciboron found Jorgensen's body on the floor between the kitchen and the living room area. The house was in disarray. There was a knife protruding from Jorgensen's neck, and a gag in his mouth. Ciboron described dried blood on Jorgensen's head.
Three officers with the Columbus Police Department arrived at the scene to investigate shortly after Ciboron. They testified
that Jorgensen's body had started to decompose. One officer testified that based on her observations of decay and lividity, Jorgensen had been dead "for several days." Bloodstains were found throughout the house, including the couch, the floor, a door, baseboards, and the kitchen water faucet. Another officer explained that the blood had soaked through the carpet and padding to the wood floor underneath.
A video and photographs of the scene and Jorgensen's body were entered into evidence without objection. Jorgensen's head and chest appeared covered in blood, and the photographs show numerous apparent stab wounds to the chest, arms, hands, and neck.
(b) Bowen
Prior to Bowen's testimony, Henry renewed his motion in limine, objecting to "the entirety of the testimony." Exhibits to be offered into evidence during Bowen's testimony were
not explicitly referenced in Henry's renewed objection. Henry again stated that he made no claim that the State acted in bad faith in releasing Jorgensen's body for cremation.
The prosecution noted that the autopsy report, photographs, and "[t]issue slides" had been made available to Henry for independent examination by an independent pathologist appointed for Henry. Henry explained that he did not have an expert who would testify differently as to Jorgensen's cause of death, and Henry did not appear to contest the time of death. Nevertheless, Henry stated that there were "issues." Henry never elaborated on what those issues were.
The district court overruled the renewed motion and allowed Bowen to testify. In denying the motion, the court noted that the body was cremated pursuant to a request by Jorgensen's family and that the detailed autopsy results, photographs, and tissue samples were available for examination by Henry's own pathologist. The court also noted that Henry did not contest, based on either Bowen's examination or his pathologist's review, Jorgensen's cause of death.
Bowen testified that the autopsy revealed 14 stab wounds on Jorgensen's neck, chest, and abdomen, and numerous "blunt force injuries" from being struck. There were lacerations on the back of Jorgensen's head consistent with being hit with brass knuckles. Bowen determined Jorgensen had died through a combination of blood loss and collapsed lungs, after receiving stab wounds to the chest, and that his death was a homicide. Bowen testified that Jorgensen had died somewhere between 24 hours and 4 days before the autopsy, which was performed on May 23, 2013.
Due to the decomposition, Bowen was unable to remove blood from the body, but he was able to test the decomposition fluid found in the chest. Bowen testified that decomposition fluid is more difficult to interpret than blood. On cross-examination, Bowen admitted that tests of samples or specimens of Jorgensen's organs, such as his brain, kidney, or liver, would have probably been more accurate.
The tests of the decomposition fluid indicated there was a significant amount of methamphetamine in Jorgensen's body at the time of death. Nevertheless, it was Bowen's opinion that the cause of death was not methamphetamine. Bowen...
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