State v. Bird Head

• Decision Date: 02 July 1987
• Docket Number: No. 86-263,86-263
• Citation: 225 Neb. 822,408 N.W.2d 309
• Parties: STATE of Nebraska, Appellee, v. Hudson BIRD HEAD, Appellant.
• Court: Nebraska Supreme Court

Page 309

408 N.W.2d 309

225 Neb. 822

STATE of Nebraska, Appellee, v. Hudson BIRD HEAD, Appellant.

No. 86-263.

Supreme Court of Nebraska.

July 2, 1987.

Syllabus by the Court

1. Convictions: Appeal and Error. In determining the sufficiency of the evidence needed to sustain a criminal conviction, the Nebraska Supreme Court is obligated to view the evidence in the light most favorable to the State.

2. Judges: Recusal: Appeal and Error. A motion to disqualify a judge on the ground of bias or prejudice is addressed to the judge's sound discretion, and an order overruling such a motion will ordinarily be affirmed on appeal unless the record establishes bias or prejudice as a matter of law.

3. Judges: Recusal: Presumptions. A party seeking to disqualify a judge on the basis of bias or prejudice bears the heavy burden of overcoming the presumption of judicial impartiality.

4. Venue: Appeal and Error. A motion for a change of venue is addressed to the sound discretion of the trial judge, and the trial judge's ruling will not be disturbed absent a clear abuse of that discretion.

5. Venue: Appeal and Error. The factors to be evaluated in determining whether a change of venue is required because of pretrial publicity include the nature of the publicity, the degree to which the publicity has circulated throughout the community, the degree to which the publicity circulated in areas to which venue could be changed, the length of time between the dissemination of the publicity complained of and the date of trial, the care exercised and ease encountered in selection of the jury, the number of challenges exercised during the voir dire, the severity of the offenses charged, and the size of the area from which the venire is drawn.

6. Juror Qualifications. The law does not require that a juror be totally ignorant of the facts and issues involved; it is sufficient if the juror can lay aside his or her impressions or opinion and render a verdict based on the evidence presented in court.

7. Juror Qualifications: Death Penalty: Constitutional Law. A venireperson whose views on capital punishment are such as to prevent or substantially impair the performance of his or her duties as a juror may, under the provisions of Neb.Rev.Stat. § 29-2006(3) (Reissue 1985), be constitutionally excused from jury service in a capital case.

8. Convictions: Circumstantial Evidence. One may be convicted of a crime on the basis of circumstantial evidence if such evidence, taken as a whole, establishes guilt beyond a reasonable doubt.

9. Convictions: Appeal and Error. In determining the sufficiency of the evidence to sustain a criminal conviction, it is not the function of the Nebraska Supreme Court to weigh the evidence; a verdict of guilt must be affirmed if the evidence, viewed and construed most favorably to the State, sufficiently supports some rational theory of guilt.

10. Death Penalty: Aggravating and Mitigating Circumstances. Mere proof that an offender was previously convicted of two assaults of unspecified degree and of an attempted second degree assault does not in and of itself establish beyond a reasonable doubt the existence of the aggravating circumstance defined in Neb.Rev.Stat. § 29-2523(1)(a) (Reissue 1985).

James R. Wefso, Rushville, for appellant.

Robert M. Spire, Atty. Gen., Melvin K. Kammerlohr, and William L. Howland, Lincoln, for appellee.

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

PER CURIAM.

A jury found defendant-appellant, Hudson Bird Head, guilty of robbery in violation of Neb.Rev.Stat. § 28-324(1) (Reissue 1985), first degree sexual assault in violation of Neb.Rev.Stat. § 28-319(1)(a) (Reissue 1985), and first degree murder in violation of Neb.Rev.Stat. § 28-303(2) (Reissue 1985). He was adjudged accordingly and sentenced to imprisonment for a term of not less than 10 nor more than 15 years for the robbery, to a like term of imprisonment for the sexual assault, and to death for the murder.

By his original and supplemental briefs Bird Head assigns 14 errors, which combine to present 7 issues. The first asks (1) whether the trial judge erred in not disqualifying himself from the guilt and penalty determination phases of the proceeding. The next three issues relate solely to the guilt determination phase of the proceeding and ask (2) whether the trial judge erred in refusing a change of venue, (3) whether the trial judge erred in overruling defendant's motion to prohibit "death qualification" of the jury, and (4) whether the trial judge erred in considering the evidence sufficient to support each finding of guilt. For the reasons discussed in the remainder of this opinion, we answer each of the foregoing four inquiries in the negative and thus affirm each of the findings of guilt, as well as the sentences imposed for the robbery and sexual assault convictions.

The remaining three issues deal with the phase of the proceeding at which it was determined that the murder warranted imposition of the death penalty. One of these issues, (5), asks whether the sentencing panel erred in finding the presence beyond a reasonable doubt of certain statutory aggravating circumstances.

Because an error in the sentencing panel's determination that Bird Head had previously been convicted of crimes involving the use or threat of violence compels us to answer that inquiry in the affirmative, the remaining two issues need not be, and therefore are not, considered.

Accordingly, we reverse and vacate the sentence imposed for the murder conviction and remand the cause for further proceedings and resentencing in that regard.

FACTS

In our review we are obligated to view the evidence most favorably to the State. State v. Walker, 225 Neb. 794, 408 N.W.2d 294 (1987). So viewed, the evidence establishes that at 8:58 p.m. on March 2, 1985, State Trooper George Gleason received a radio call warning him of a possible drunk driver headed on the highway from Alliance to Bridgeport. Gleason then came upon a 1966 Chevrolet which matched the description of the automobile reported to him. The Chevrolet was traveling at 36 m.p.h. and was weaving from the shoulder of the highway to the centerline. Gleason stopped the automobile, which proved to have been operated by Bird Head, its only occupant. Gleason noted that Bird Head had glassy eyes and that there was a blue clutch purse and five beer cans on the floor of the automobile.

Bird Head could produce neither a driver's license nor an automobile registration document. After failing several field sobriety tests, Bird Head was told he would be taken to Bridgeport for further testing. When asked if he wanted the vehicle towed or left where it was, Bird Head indicated he wanted it left where it was because he could not afford to have it towed. However, because the automobile could not be locked, Gleason arranged to have it towed.

The Intoxilyzer test administered at Bridgeport revealed that Bird Head had .315 of 1 percent of alcohol in his blood. Bird Head was given the Miranda warnings, after which he answered questions.

Bird Head told Gleason he had been drinking wine but denied being intoxicated. He also said he thought he had been driving a Ford and that he had been in Lincoln, driving through Gordon, on his way to Colorado. When asked to empty his pockets, Bird Head produced a number of items, including a pair of sunglasses, a black comb, 2 keys, some lottery tickets, 12 slices of individually wrapped Velveeta cheese, and $22.23. The money consisted of three $5 bills, six $1 bills, and $1.23 in coins. During the questioning, Gleason noticed bloodspots in the area of Bird Head's left knee. Sheriff Roger Sterkel also observed those spots, as well as a bloodspot on the left sleeve of Bird Head's sweater.

In accordance with standard procedure the automobile Bird Head had been driving was inventoried. As a result, there was found, in addition to the items noted earlier, a three-quarters full bottle of wine, some Cheetos, a Kentucky Fried Chicken box, a pair of eyeglasses in its case, and two crumpled $1 bills. The blue clutch purse contained documents issued to Mrs. Lillian Lynch and a $2 bill, which had been tucked into one of the pockets. In addition, the registration document found on the visor of the automobile showed that the automobile was registered to Mrs. Lynch.

Upon discovery of the registration and other identifying documents, Sheriff Sterkel attempted to telephone Mrs. Lynch at her home in Gordon but received no answer. Gleason then contacted Nebraska State Patrol Trooper Gary Boyer. Boyer arrived at Mrs. Lynch's home at approximately 11:39 p.m. and found it completely dark. He knocked on the door but received no response. He then went to the dining room window, shined his flashlight into the room, and saw that shoes and clothing had been strewn about. Boyer then discovered that the kitchen door was partially open, with a key hanging in its lock. He entered the house, turned on the dining room light, and saw what looked like a pair of nylon stockings in the hallway leading to the bedroom. He again saw the shoes he noticed when looking through the window and, in addition, saw a bloodstained brown handbag lying on the buffet. Boyer proceeded to the bedroom and found it to be in disarray; a nightstand had been tipped over, dresser drawers had been opened, and the mattress had been pulled onto the floor. Boyer lifted the mattress and found Mrs. Lynch's corpse lying face down on the floor under the mattress. He then called for assistance.

Further examination of the scene revealed the presence of a number of items in addition to those first seen by Boyer, including a pair of pants in the dining room, a sweater, a pair of glasses, a denture plate, and a nosepiece from a pair of glasses. A bloodspotted nightcap was found under a nightstand in the bedroom, and a Velveeta cheese wrapper was found on the mattress.

A bloody cloth was wrapped twice...