State v. Donnelson

• Decision Date: 20 March 1987
• Docket Number: No. 86-492,86-492
• Citation: 225 Neb. 41,402 N.W.2d 302
• Parties: STATE of Nebraska, Appellee, v. Garwood L. DONNELSON, Appellant.
• Court: Nebraska Supreme Court

Page 302

402 N.W.2d 302

225 Neb. 41

STATE of Nebraska, Appellee, v.Garwood L. DONNELSON, Appellant.

No. 86-492.

Supreme Court of Nebraska.

March 20, 1987.

Syllabus by the Court

1.Directed Verdict: Convictions.A trial court will be justified in directing a verdict of not guilty only where there is a total failure of competent proof to support a material allegation in the information, or where the testimony is of so weak or doubtful a character that conviction based thereon could not be sustained.

2.Circumstantial Evidence: Convictions.Circumstantial evidence is sufficient to support a conviction if the evidence and reasonable inferences that may be drawn from such evidence establish the defendant's guilt beyond a reasonable doubt.

3.Expert Witnesses: Death: Proof.Contradictory medical opinions as to the cause of death in a criminal case do not establish, of themselves, that the State has failed to prove the cause of death beyond a reasonable doubt.

4.Motions for Continuance: Appeal and Error.A motion for a continuance of a trial is addressed to the sound discretion of the trial court, and that ruling will not be disturbed on appeal in the absence of a showing of an abuse of that discretion.

5.Motions for New Trial: Appeal and Error.The granting or refusal of a motion for a new trial is left to the sound discretion of the trial court.

6.Sentences: Probation and Parole.The granting of probation as opposed to imposing a jail sentence is a matter left to the sound discretion of the trial court.

Robert B. Creager of Berry, Anderson, Creager & Wittstruck, Lincoln, for appellant.

Robert M. Spire, Atty. Gen., and Lynne R. Fritz, Asst. Atty. Gen., for appellee.

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

GRANT, Justice.

The defendant, Garwood L. Donnelson, appeals his conviction by a jury of manslaughter in violation of Neb.Rev.Stat. § 28-305(Reissue 1985).The defendant alleges the district court erred in failing to grant a continuance to allow defendant to properly prepare for the State's expert testimony; in failing to grant defendant's motion for dismissal of the charge against him because of insufficiency of the evidence; in failing to grant a new trial based on a posttrial affidavit concerning testimony of two of the State's expert witnesses; and in failing to sentence the defendant to probation, rather than imprisonment.We affirm.

The record discloses the following.In an information filed September 4, 1985, the defendant, Garwood Donnelson, was charged with manslaughter in the death of Carolyn Witthoff.The defendant had been present when the deceased suffered an injury which led to her death due to a subdural hematoma.After a trial to a jury, the defendant was found guilty of killing Carolyn Witthoff without malice, either upon a sudden quarrel or unintentionally while in the commission of an unlawful act.The defendant was sentenced to imprisonment in the Department of Correctional Services for a term of 3 years.

The evidence before the jury was largely circumstantial.No one else was present at the time of the death other than the defendant.He alleges Mrs. Witthoff apparently fell while extremely intoxicated and suffered the injury from which she died.

Evidence adduced before the jury showed the following.In approximately 1971the defendant became acquainted with the deceased's husband though their involvement in various political activities.The defendant and his wife became friends with Mr. and Mrs. Witthoff.The couples took vacation trips together.In approximately 1976, the relationship between the defendant and Mrs. Witthoff changed.Their meetings were infrequent at first, meeting at bars and sometimes at conventions.In 1980, while the couples were on a trip to Europe, the defendant's wife became aware of a new closeness in the relationship between defendant and Mrs. Witthoff.An unpleasant scene followed, and the defendant's wife discontinued her friendship with Mrs. Witthoff.Mrs. Witthoff and the defendant continued seeing one another.Their meetings became more frequent, and in 1980defendant and Mrs. Witthoff rented a small apartment in Lincoln, Nebraska.Each of them continued to reside in their respective marital houses.The apartment rent was divided between the two.A pattern developed.For about 2 years before August 31, 1985, the defendant and Mrs. Witthoff met at the apartment for lunch two or three times a week.They would also meet in the evenings after work two or three times a week, and they would spend nearly every Saturday together at the apartment.A typical Saturday meeting would include meeting for lunch and drinks.The couple would spend the balance of the afternoon at the apartment drinking, sleeping, and engaging in sexual relations.This relationship continued until August 31, 1985, a Saturday.

On that day, the defendant and Mrs. Witthoff met at the apartment about noon.They consumed alcoholic drinks, talked, and had lunch around 1 or 1:30 p.m.Over the next 4 hours the couple slept and engaged in sexual relations.At approximately 5 p.m. the defendant decided to leave.He got dressed and left the apartment to call a cab to go to his home.He testified he walked for about a block, then turned around and walked back to the apartment.A resident of the apartment house testified that at approximately 5:45 p.m., as the witness was leaving his apartment located directly across the hall from the deceased's apartment, he saw Mrs. Witthoff, standing in the doorway, unclothed.Upon seeing the witness, Mrs. Witthoff closed her door immediately.The witness observed no injuries on her body at that time.As the witness left the building he observed the defendant walking away from the building, and then turning back toward the building.The witness paid his rent to the landlady in the next apartment building and returned to his apartment for about 15 minutes.The witness then left to buy groceries and returned in about 45 minutes, stayed about 15 minutes, and left again at approximately 7 p.m.Upon his return to his apartment at approximately 8:30 p.m., he saw a police car in front of the apartment.During his presence in his apartment during his various returns, the witness heard no unusual noises in Mrs. Witthoff's apartment.

Defendant testified that he returned to the apartment because he thought Mrs. Witthoff may have begun getting dressed and she could drive him home.She had not begun getting dressed, and the defendant removed his clothing and the two resumed drinking.

The defendant testified that as Mrs. Witthoff was walking through the apartment she bounced off a table, knocking a lamp onto the floor and breaking it.The two of them then attempted to pick up the broken glass, at which time, the defendant testified, he cut his thumb.A piece of glass with blood on it was recovered from the trash can.

The defendant testified that he then passed out again, and that upon awaking at approximately 8:30 p.m., he saw Mrs. Witthoff lying on her back on the floor.The defendant testified he could not really see Mrs. Witthoff clearly because he did not have his glasses on.When he knelt over her he noticed a black substance around her mouth.He felt that it was blood.He testified he next jumped up, put his clothes on, and ran upstairs to get someone to phone 911.

A witness for the State, John Phillips, testified that at approximately 8:15 p.m. on the evening in question he was entering the apartment building when he heard a loud conversation taking place in the lower level of the building.He testified that this was unusual because he normally could not hear voices as he entered the building.

At approximately 8:30 p.m., the defendant knocked at the door of Blanche Cejka, the occupant of the apartment just above the apartment rented by defendant and Mrs. Witthoff.Defendant stated that a woman was dying downstairs and requested that Cejka call 911.Cejka could not recognize the man at her door at first, but when he returned a few minutes later and again asked her to call 911, she recognized the man as the defendant.She testified that the second time defendant talked to her, she asked defendant what the problem was and the defendant said a "tantrum," or something to that effect.

Officer Joseph Lefler of the Lincoln Police Department was called to the scene.He was directed to the apartment.The officer met defendant at the door to the apartment house and defendant accompanied him to the apartment, where defendant unlocked the door.The officer talked to defendant, and testified the defendant appeared intoxicated but not "falling down drunk."As Officer Lefler entered the apartment he saw Mrs. Witthoff lying on the floor, unclothed, with blood around her chin and neck.She appeared to be unconscious and was having trouble breathing.The officer testified that as he was examining Mrs. Witthoff, the defendant was sitting on the couch smoking a cigarette, and appeared "nonchalant" about what was happening.When asked by Officer Lefler what had happened to her, the defendant replied she had cut her chin on a light bulb of a lamp.

Two additional officers arrived on the scene and removed the defendant to make room for the medical personnel.The defendant was escorted to a police cruiser.When asked who the victim was, the defendant replied she was his mistress, and that a lamp got broken and he did not remember what happened.The defendant was then taken to the police station.

Medical personnel who arrived at the scene found Mrs. Witthoff unconscious and not responsive to stimuli.They observed a soft area on the back of her head and a deep laceration on her chin.A member of the Mobile Heart Team testified that he noticed the wound on the chin when he felt an irregularity of the skin and a wetness there.He said he pushed on the wound but did not remember entering the wound itself when applying gauze to...