State v. Bennett
| Citation | 281 N.W.2d 216,204 Neb. 28 |
| Decision Date | 10 July 1979 |
| Docket Number | No. 42256,42256 |
| Parties | STATE of Nebraska, Appellee, v. Reginald C. BENNETT, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Criminal Law: Evidence: Verdicts: Proof. A motion for directed verdict will be denied unless there is a total failure of competent proof in a criminal case to support a material allegation in the information or where the testimony adduced is of so weak or doubtful character that a conviction based thereon could not be sustained.
2. Criminal Law: Confessions: Evidence. Where the evidence as to what occurred immediately prior to and at the time of making a confession shows that it was freely and voluntarily made and excludes the hypothesis of improper inducement or threats, the confession is voluntary and may be received in evidence.
Thomas M. Kenney, Douglas County Public Defender, and Bennett G. Hornstein, Asst. Public Defender, Omaha, for appellant.
Paul L. Douglas, Atty. Gen., and Linda G. Akers, Asst. Atty. Gen., Lincoln, for appellee.
Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE, and HASTINGS, JJ.
The defendant was charged in the District Court for Douglas County with first degree murder in the commission of a robbery of James G. Sloan on February 25, 1978. The jury found the defendant guilty and he was sentenced to a term of life imprisonment in the Nebraska Penal and Correctional Complex. Defendant appeals. We affirm.
We will discuss defendant-appellant's two assignments of error in the order presented. The first is that the District Court committed reversible error in denying the defense motions for a directed verdict made at the conclusion of the State's case, and again at the conclusion of the defense evidence, because the evidence was insufficient as a matter of law to prove corpus delicti and defendant's guilt beyond a reasonable doubt.
At approximately 7:30 p. m., on February 25, 1978, the Omaha city rescue squad was summoned to 701 South 22nd Street, Omaha, Nebraska, near the Drake Court Apartments, where a man, later identified as the defendant, ran up to the squad and informed them that an injured party was at the east end of the complex. There the victim was found lying face down on the sidewalk. He had obvious head injuries and a considerable amount of blood was present under his head on a concrete sidewalk. The victim was not breathing and had no pulse. He was transported to the Lutheran Medical Center where, after failing to respond to treatment, he was pronounced dead.
An autopsy was performed by Dr. Richard B. Wilson, a pathologist. Dr. Wilson, testified that, when he examined the victim, he found a deep cut on the forehead, obviously not made by a knife, as the edges were bruised and a little torn. There were other wounds on the side and near the top of the head. Upon removal of the brain by Dr. Wilson, the victim was found to have suffered a fractured skull and consequent release of blood into the ear canal. Examination of the body other than the head revealed to Dr. Wilson a greatly enlarged heart: The victim was also found to have seventeen-hundredths of one percent of alcohol in the blood as shown by the toxicology report.
Dr. Wilson testified that the "Proximate, * * * cause * * * (of death) is multiple head injuries, one of which may have been due to a direct blow * * * while the others appear to most likely result from a fall." Dr. Wilson explained that by the term proximate cause he meant "without the head injuries, * * * the man would still be walking around, * * *." There was sufficient evidence to prove that, while the victim's preexisting heart condition and consumption of alcohol may have contributed the direct cause of death was the blows to the head.
A brick or cobblestone found near the victim's body was sent to the State Crime Laboratory in Lincoln. Examination of the stone by Karen Schmidt, a forensic serologist, revealed a small amount of blood. The size of the sample precluded further tests to determine whether it was of human origin.
The defendant was identified at trial as the person at the scene when the rescue squad arrived. He directed the crew to the victim and attempted to assist them in placing the victim in the ambulance. About 1 1/2 hours after the victim's body was taken to Lutheran Hospital, the defendant, identifying himself as David Brown, telephoned the hospital and inquired about Mr. Sloan's condition. Soon thereafter, the defendant appeared at Lutheran Hospital, again identified himself as David Brown and again inquired about the condition of the victim. He later explained the use of this alias by saying that he felt there might be a warrant for his arrest due to a traffic ticket which had recently become past due.
He was directed by hospital personnel to Omaha police officers who, after contacting a Sergeant Olson, arranged to have the defendant taken to Omaha police headquarters for questioning.
It is clear the defendant was not then in custody, voluntarily accompanied the officers, and was considered as a material witness in a possible homicide. Officer Lanny Lenker was ordered from off-duty status to headquarters to question the defendant. He began questioning the defendant after 9:30 p. m., on February 25 at the police station. He asked the defendant to accompany him to the death scene which the defendant agreed to do. The defendant had stated he left his vehicle at Lutheran Hospital. Following examination of the death scene, Officer Lenker drove him there but his car was not to be found. The defendant claimed it must have been stolen. Officer Lenker checked with the hospital security guard who recalled having seen the defendant at the hospital but not with any vehicle. Officer Lenker then asked the defendant to empty his pockets to see his car keys. When he dumped out his pockets, no keys could be found but the officer then observed a rent receipt bearing the name of Reginald Archie. The defendant had also been unable to produce any identification. At this time Officer Lenker concluded the defendant was a prime suspect in the homicide and returned him to the police station just after midnight. They began a series of police interrogations culminating in a tape-recorded confession given to Officer Subby Salerno at about 6 a. m.
The first interview, conducted by Officer Jack O'Donnell, began at midnight, at which time the defendant was orally given the Miranda warnings and agreed to talk to the officer. The interview lasted until 2:20 a. m. During that time, according to Officer O'Donnell's testimony, the defendant first stated that he had wanted to go out with his wife at about 6 in the evening but his wife did not wish to go with him. He had about $3 when he left his house. He got into his automobile and drove to the South Omaha area. He then drove to a Colonial Hills apartment located at South 13th Street, Omaha, where he intended to talk to a man but could not find him. He said he talked to the man's girl friend for awhile, left there, got into his automobile, and about this time a friend of his that he knew by the name of Reginald Spears came up to him and got into his automobile where they talked for awhile. Reginald Spears wished to borrow $10 from the defendant because he had rented an apartment at the Drake Court earlier that day for $20, later decided he did not want the apartment, and needed some money. The defendant had no money so Reginald Spears left and the defendant returned to his residence. He said that he was nearing his home, apparently having parked his car, and was walking when he...
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