State v. Bronson

• Decision Date: 12 March 1993
• Docket Number: No. S-92-219,S-92-219
• Citation: 496 N.W.2d 882,242 Neb. 931
• Parties: STATE of Nebraska, Appellee, v. Clyde Wayne BRONSON, Appellant.
• Court: Nebraska Supreme Court

Page 882

496 N.W.2d 882

242 Neb. 931

STATE of Nebraska, Appellee, v. Clyde Wayne BRONSON, Appellant.

No. S-92-219.

Supreme Court of Nebraska.

March 12, 1993.

Syllabus by the Court

1. Convictions: Appeal and Error. A conviction will not be set aside unless the defendant meets his or her burden of showing that the claimed error created actual prejudice and not the mere possibility of prejudice.

2. Miranda Rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) prohibits the use of statements stemming from the custodial interrogation of a defendant unless the prosecution demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.

3. Miranda Rights: Words and Phrases. For purposes of the Miranda rule prohibiting the prosecution from using statements stemming from a custodial interrogation of a defendant without the use of such procedural safeguards a "custodial interrogation" means questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.

4. Miranda Rights. A noncustodial situation is not converted to one in which the Miranda rule applies simply because a reviewing court concludes that, even in the absence of any formal arrest or restraint on freedom of movement, the questioning took place in a coercive environment.

5. Miranda Rights. Police officers are not required to administer Miranda warnings to everyone whom they question, or simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect. Rather, Miranda warnings are required only where there has been such a restriction on a person's freedom as to render him "in custody."

6. Miranda Rights: Arrests: Search and Seizure: Words and Phrases. One is in custody for Miranda purposes when there is a formal arrest or a restraint on his or her freedom of movement of the degree associated with such an arrest. Determinations as to whether a person has been seized in this context are questions of fact.

7. Police Officers and Sheriffs: Search and Seizure. The question of whether a person's consent to accompany law enforcement officials was in fact voluntary or was the product of duress or coercion, express or implied, is to be determined by the totality of the circumstances.

8. Confessions: Proof: Appeal and Error. To be admissible in evidence, an accused's statement must be shown by the State to have been freely and voluntarily given and not to have been the product of any promise or inducement--direct or indirect--no matter how slight. However, this rule is not to be applied on a strict, per se basis. Rather, the determination of voluntariness is based upon an assessment of all of the circumstances and factors surrounding the occurrence when the statement is made and the determination made by the trial court in this regard will not be disturbed on appeal unless clearly wrong.

9. Rules of Evidence: Other Acts. Neb.Rev.Stat. § 27-402(2) (Reissue 1989) acts as an inclusionary rule which permits the use of evidence of other crimes, wrongs, or acts if relevant for any purpose other than the defendant's propensity or disposition to commit the crime with which he or she is charged.

10. Trial: Evidence: Other Acts: Appeal and Error. It is within the discretion of the trial court to determine admissibility of evidence of other wrongs or acts and the trial court's decision will not be reversed absent abuse of that discretion.

11. Homicide: Intent: Proof. While proof of motive is not an element of first degree murder, any motive for the crime charged is relevant to the State's proof of the intent element.

12. Criminal Law: Words and Phrases. Motive is defined as that which leads or tempts the mind to indulge in a criminal act.

13. Hearsay. An extra-judicial statement not offered to prove the truth of the matter asserted is not hearsay.

14. Juries: Discrimination: Proof. In order to make a prima facie case of discrimination in the selection of a jury under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), a criminal defendant must show that (1) she or he is a member of a cognizable racial group, (2) the prosecutor used peremptory challenges to remove members of the defendant's race from the venire, and (3) the facts and other relevant circumstances give rise to an inference that the prosecutor used those challenges to exclude potential jurors because of their race.

15. Juries: Discrimination: Intent: Appeal and Error. Deference is given to the trial court's findings on the issue of discriminatory intent because the finding will largely turn on the evaluation of credibility.

16. Juries: Discrimination. The explanation of the State to provide a neutral explanation of a challenge under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), need not rise to the level of a challenge for cause, but neither may the prosecutor rebut defendant's prima facie case by stating that potential jurors were struck based on the intuitive judgment that they would be partial to the defendant because of their shared race.

17. Juries: Discrimination. The prosecutor's basis for his or her strikes need not even rise to the level of rationality. The trial court need not determine if the explanation is reasonable, but only that it is nondiscriminatory and is constitutionally permissible.

18. Juries. In striking peremptory challenges in the context of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), it is important and permissible to achieve a venire made up of jurors who, at least during voir dire, (1) respond to the attorneys, (2) do not give off the impression through body language, eye contact, or otherwise that he or she has already made up his or her mind, and (3) exhibit a receptiveness to follow the administrative instructions, as well as courtroom testimony in order to make a fair and impartial decision in the matter at hand.

19. Motions for Mistrial: Appeal and Error. A mistrial is properly granted only when an event occurs during the course of a trial which is of such a nature that its damaging effects cannot be removed by proper admonition or instruction to the jury and would thus result in preventing a fair trial. The decision to grant a motion for mistrial is within the discretion of the trial court and will be upheld on appeal absent a showing of abuse of discretion.

20. Motions for Mistrial: Attorneys at Law. In order for error to be predicated upon misconduct of counsel, it must be so flagrant that neither retraction nor rebuke from the court can entirely destroy its influence.

21. Motions for Mistrial: Prosecuting Attorneys: Proof. Before it is necessary to grant a mistrial for prosecutorial misconduct, the defendant must show that a substantial miscarriage of justice occurred.

22. Trial: Testimony: Appeal and Error. In the absence of an abuse of discretion, a trial court's ruling regarding the extent, scope, and course of cross-examination will be upheld on appeal.

23. Trial: Testimony: Appeal and Error. Although a witness is erroneously permitted to be cross-examined as to matters not brought out on direct examination, the judgment will not be reversed when it appears that no prejudice could have resulted.

24. Trial: Testimony. As a general rule, the method of cross-examination which recapitulates a great deal of prior testimony is disapproved.

25. Convictions: Appeal and Error. In determining whether evidence is sufficient to sustain a conviction in a jury trial, an appellate court does not resolve conflicts of evidence, pass on credibility of witnesses, evaluate explanations, or reweigh evidence presented to a jury, which are within the jury's province for disposition. A verdict in a criminal case must be sustained if the evidence, viewed and construed in a light most favorably to the State, is sufficient to support that verdict.

Thomas M. Kenney, Douglas County Public Defender, and Thomas C. Riley, Omaha, for appellant.

Don Stenberg, Atty. Gen., and Donald A. Kohtz, Lincoln, for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, FAHRNBRUCH, and LANPHIER, JJ.

HASTINGS, Chief Justice.

Clyde Bronson appeals his conviction by a jury of first-degree murder and using a weapon to commit a felony. Bronson was sentenced to life imprisonment on the murder conviction and a consecutive sentence of 20 years for using a weapon to commit a felony.

Bronson alleges the trial court committed error in the following respects:

1. admitted into evidence appellant's custodial statements made prior to being "mirandized";

2. admitted irrelevant and unfairly prejudicial testimony concerning appellant's usage of controlled substances;

3. admitted out-of-court statements made by deceased's husband to the deceased;

4. denied appellant's "motion for a mistrial or alternatively to reinstate onto the jury panel certain African-American jurors peremptorily stricken by the prosecutor";

5. overruled appellant's objections and motion for mistrial which were based upon prosecutorial misconduct in the method of cross-examination of the appellant;

6. sustained conviction for murder despite the fact that the evidence presented at trial was so lacking in probative value that it was insufficient as a matter of law to sustain the conviction.

We affirm.

Barbara Smith was found dead by her husband the morning of June 28, 1991. The cause of death was determined to be multiple stab wounds to the chest and blunt injuries to the face and head. No evidence indicated forcible entry. As the Omaha Police Division crime lab searched the scene for fingerprints and other physical evidence, other officers contacted persons in the area regarding any information they may have had about the murder. Bronson, who lived two homes away from the victim, was questioned as he was returning from...