State v. Archbold

• Court: Nebraska Supreme Court
• Writing for the Court: KRIVOSHA; SHANAHAN
• Citation: State v. Archbold, 217 Neb. 345, 350 N.W.2d 500 (Neb. 1984)
• Decision Date: 11 May 1984
• Docket Number: No. 83-394,83-394
• Parties: STATE of Nebraska, Appellee, v. Jane M. ARCHBOLD, Appellant.

Page 500

350 N.W.2d 500

217 Neb. 345

STATE of Nebraska, Appellee, v. Jane M. ARCHBOLD, Appellant.

No. 83-394.

Supreme Court of Nebraska.

May 11, 1984.

Syllabus by the Court

1. Homicide: Jury Instructions. As required by Neb.Rev.Stat. § 29-2027 (Reissue 1979), and when there is a proper, factual basis, a court is required to instruct on the degrees of criminal homicide even in the absence of a requested instruction regarding the lesser degrees of criminal homicide.

2. Trial: Evidence: Motions for Mistrial. In order to prevent defeat of justice or to further justice during a jury trial, a mistrial is generally granted at the occurrence of a fundamental failure preventing a fair trial in the adversarial process.

3. Trial: Evidence: Motions to Strike. A litigant may not speculate about the answer to a question and then, after answer has been given, for the first time lodge his objection. Failure to make a timely objection or motion to strike will ordinarily bar a party from later claiming error in the admission of testimony.

4. Trial: Evidence: Motions to Strike. In order to be timely an objection must ordinarily be made at the earliest opportunity after the ground for the objection becomes apparent. A motion to strike is not timely where testimony has been adduced without objection and the grounds for the motion to strike should have been apparent before the motion to strike is made.

5. Trial: Evidence: Motions to Strike. A motion to strike evidence to which there should have been an objection when offered is merely another term for an objection and is governed by the rules as to the time of an objection.

6. Trial: Evidence: Motions for Mistrial. When there occurs in the course of a trial a highly prejudicial event which is likely to materially affect the outcome of the trial, the party aggrieved must raise his objection then and move for mistrial. His failure to do so when he reasonably should have known of the prejudicial occurrence constitutes a waiver of the objection.

7. Trial: Evidence. Problematical prejudice is no justification for delay in making a required, proper objection to questioning and testimony believed to be improper.

Steven Lefler of Schrempp, Lefler, Hoagland & Gray, Omaha, for appellant.

Paul L. Douglas, Atty. Gen., and Terry R. Schaaf, Lincoln, for appellee.

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

SHANAHAN, Justice.

Jane M. Archbold appeals her conviction and sentence for manslaughter. Archbold complains that the trial court should not have given an unrequested instruction regarding manslaughter when the crime alleged in the information was second degree murder. As an additional complaint, Archbold claims a mistrial should have been declared as a result of evidence adduced on Archbold's cross-examination. We affirm.

About 7 p.m. on November 19, 1982, Jane Archbold, 19 years old, took her 2-year-old son to the home of her sister, Kathy Archbold, for babysitting. At approximately 10 p.m. a group unexpectedly visited Kathy's home, and a party developed. During the party, Kathy got into an argument with her boyfriend, Gregory (Greg) Middleton. Jane arrived at midnight, while Kathy and Middleton were arguing. Shortly after Jane's arrival, Kathy went into the kitchen of her house and returned to the front room brandishing a kitchen knife. Kathy asked Middleton to leave and threatened him with the knife. While quieting Kathy, Jane took the kitchen knife from Kathy and put it in her belt or sash. Jane remained at Kathy's house until 1 or 1:30 a.m. (November 20), when Kathy and Jane decided to take their children to Sue Waugh's house across the street.

At Sue Waugh's house Kathy and Jane visited around 1 1/2 hours, when one of the male party-people from Kathy's house came across the street and talked to Jane. Because that man was "loaded," Jane walked him back across the street. About this time, Middleton came to Waugh's house and demanded to see Kathy, who was inside. When Kathy did not appear, Middleton broke a window and ripped the screen door of Waugh's house.

Waugh, carrying a baseball bat, came out the back door of her house and encountered Middleton at the side of the house. At this point Jane was returning to Waugh's house and saw Waugh and Middleton meet alongside the house. Waugh swung the baseball bat at Middleton, but missed. Middleton then tackled Waugh and grabbed the ball bat. As Jane came near the scene, Waugh broke away from Middleton, and Middleton threw the ball bat against the side of the house. The ball bat caromed off the house and struck Jane's head.

Middleton apologized to Jane for causing the ball bat to strike her. As Middleton and Jane walked from the scene of the Waugh-Middleton scuffle, Middleton continued to apologize for and Jane harangued about the "bat incident." After a 2-minute walk and argument, interspersed with profanities from Jane, Middleton and Jane reached the street in front of Waugh's house.

As observed by the party-people at Kathy's house, Kathy approached Middleton and Jane in the street. Kathy asked Middleton to leave. In the course of this meeting involving Kathy, Middleton, and Jane, Middleton--apparently realizing that Jane still carried the knife--said to Jane, "What are you going to do, stab me?" As Middleton began to move toward Kathy, Jane raised the kitchen knife and stabbed Middleton in his upper left chest. The knife severed Middleton's pulmonary artery and produced hemorrhage which caused his death.

An information was filed charging Archbold with second degree murder of Gregory Middleton (Neb.Rev.Stat. § 28-304(1) (Reissue 1979)), and the case was tried before a jury.

In her cross-examination Archbold testified:

"Q. There is no accident about this stabbing, is there, Miss Archbold? You are not telling the jury that in any way your taking that knife and stabbing him in the chest was an accident, you did it intentionally, didn't you? A. No. Q. You didn't do it intentionally? A. It was a reflex. Q. I'm sorry? A. It was a reflex. Q. A reflex. I mean, is this reflexive action that happened that night, I mean is it something you have done before? A. What do you mean? Q. Stab somebody before? A. No. Q. You never have? Out in California? A. Yes."

After the foregoing interrogation the prosecutor questioned Archbold about other aspects of Middleton's homicide and never cross-examined Archbold further about the stabbing in California. Shortly after Archbold's redirect examination was commenced, Archbold's counsel interrupted his questioning and approached the bench. The court excused the jury, and outside the jury's presence Archbold's counsel moved for a mistrial due to the cross-examination about the California stabbing. The court and Archbold's counsel agreed that such questioning by the prosecutor was not in bad faith. The California stabbing had been unknown to Archbold's attorney until elicited on Archbold's cross-examination. Archbold's attorney then explained his reason for the delayed motion for mistrial, that is, the attorney's belief that a motion for mistrial during Archbold's cross-examination would have called "undue attention to that aspect of the case." The court overruled the motion for mistrial. Archbold's counsel then objected to the prosecutor's question regarding the California stabbing, moved to strike Archbold's testimony about such stabbing as irrelevant, and requested that the court admonish the jury to disregard Archbold's testimony about the stabbing in California. The objection and the motion to strike were overruled, and the jury was not admonished to disregard Archbold's testimony about the California stabbing. Upon resumption of redirect examination Archbold testified in detail concerning the California stabbing.

During the conference on instructions, Archbold's counsel objected to any instruction on the crime of manslaughter. Without any request to do so, the court gave an instruction on the elements of manslaughter, and also gave an unrequested instruction which in substance informed the jury that the California incident could be considered only for the limited purpose of determining whether Archbold had the requisite criminal intent as proof for second degree murder. There was no objection to the instruction regarding testimony about the California incident.

The jury's verdict was "guilty of manslaughter." After a presentence report, the court sentenced Archbold to a period of 5 to 10 years in the Nebraska Center for Women at York, Nebraska.

Archbold does not claim that the instruction on manslaughter contained any incorrect statement of law. As assignments of error, Archbold contends: (1) The trial court should not have instructed on the crime of manslaughter and should not have submitted such issue to the jury; (2) A mistrial should have been declared; and (3) The sentence is excessive.

There was evidence of a disagreement between Jane and Middleton as a result of the "bat incident." The circumstances surrounding the bat incident and argument resulted in a question for the jury whether Middleton's death occurred "upon a sudden quarrel" involving Archbold. Also, Middleton, knowing Archbold was carrying a knife, asked whether she was going to stab him. In her testimony Archbold called her stabbing Middleton a "reflex." "Reflex," in common usage, means an involuntary response, that is, an unintentional act. Consequently, in view of the evidence there was a jury question whether Middleton's homicide might have been unintentional but during the commission of an unlawful act (assault). In short, there was evidence on the elements of manslaughter. See Neb.Rev.Stat. § 28-305(1) (Reissue 1979).

Neb.Rev.Stat. § 29-2027 (Reissue 1979) provides: "In all trials for murder the jury before whom such trial is had, if they find the prisoner guilty thereof, shall ascertain in their verdict whether it be murder in the first or second degree, or...