State v. Ellis

• Decision Date: 27 March 1981
• Docket Number: No. 42954,42954
• Citation: 208 Neb. 379,303 N.W.2d 741
• Parties: STATE of Nebraska, Appellee, v. John R. ELLIS, Appellant.
• Court: Nebraska Supreme Court

Page 741

303 N.W.2d 741

208 Neb. 379

STATE of Nebraska, Appellee, v. John R. ELLIS, Appellant.

No. 42954.

Supreme Court of Nebraska.

March 27, 1981.

Syllabus by the Court

1. Venue. Questions of venue may be established by circumstantial evidence as well as direct evidence.

2. Homicide: Circumstantial Evidence: Jury Instructions. Ordinarily, in a case charging first degree murder, where there is no eyewitness to the act, and the evidence is largely circumstantial, the jury should be instructed as to the law governing murder in the first degree, second degree, and manslaughter.

3. Criminal Law: Rules of Evidence. The "other-crimes" rule, Neb.Rev.Stat. § 27-404(2) (Reissue 1979), is a rule of relevance and such evidence is ordinarily prejudicial because prior criminal activity is irrelevant to the proof of a specific crime.

4. Criminal Law: Evidence: Proof. It is competent for the prosecution to put in evidence all relevant facts and circumstances which tend to establish any of the constituent elements of the crime with which the accused is charged, even though such facts and circumstances may prove or tend to prove that the defendant committed other crimes.

5. Criminal Law: Pleas: Evidence. A not guilty plea places in issue every relevant fact, and the prosecution should not be precluded from introducing evidence on a certain element of the alleged crime because there was already some other evidence in the case tending to establish the same, until and unless the trial court, in the exercise of its discretion, determines that further evidence on that point is irrelevant.

6. Criminal Law: Evidence. A purported showing of a paucity of evidence does not prove that a trial court abused its discretion in balancing the probative value against the prejudicial effect of a particular item of disputed evidence. In fact, a lack of other relevant evidence may in some instances increase the probative value of the evidence available.

7. Criminal Law: Evidence. The admissibility of evidence of other crimes lies largely within the discretion of the trial court.

8. Criminal Law: Evidence. Evidence of other crimes, if relevant to the issue, is not made inadmissible simply because they occurred at a time after that of the principal charge.

9. Juror Qualifications. Qualified jurors need not be totally ignorant of the facts and issues involved. It is sufficient as to competency to serve if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.

10. Witnesses: Self-Incrimination. It is not error for a trial court to limit cross-examination of a witness concerning a subject wherein the witness has claimed the privilege against self-incrimination.

11. Petit Larceny: Impeachment. The crime of petit larceny without proof that the manner in which it was accomplished involved deceit or deception so as to be classified as "crimen falsi" is not such a crime as may be used to impeach a witness' veracity under Neb.Rev.Stat. § 27-609 (Reissue 1979).

12. Prosecutor Misconduct. Whether misconduct on the part of a prosecuting attorney is prejudicial to the defendant depends largely upon the fact of each particular case.

13. Indictments and Informations: Verdicts. It is only where 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 a character that a conviction based thereon could not be sustained, that the trial court will be justified in directing a verdict of not guilty.

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

Paul L. Douglas, Atty. Gen., and Sharon M. Lindgren, Asst. Atty. Gen., Lincoln, for appellee.

Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE, and HASTINGS, JJ.

PER CURIAM.

John R. Ellis appeals to this court from his conviction by the jury of the manslaughter of Deborah A. Forycki. He alleges as principal grounds for reversal: (1) That the Lancaster County District Court lacked jurisdiction to try the action because of improper venue; (2) That the court erred in submitting the case to the jury on the charges of first and second degree murder; (3) That the trial court erred in admitting evidence of other crimes, wrongs, or bad acts committed by him; (4) That the court erred in failing to strike a prospective juror for cause; (5) That it was error to limit his cross-examination of certain witnesses; (6) That error was committed by the admission of purported hearsay testimony; (7) That the trial court erred in failing to grant a mistrial based on the claim of prosecutorial misconduct; and finally, (8) That the court erred in overruling defendant's motions to dismiss and for a directed verdict. We affirmed the District Court.

We first review the facts of this case as revealed by the record, recognizing that most of the evidence adduced was circumstantial in nature. The record is undisputed that Forycki was last seen on October 3, 1974, in Lancaster County, Nebraska, and that her skeletal remains were found in Cass County, Nebraska, on September 13, 1978. At the time of her disappearance, Forycki was a senior at the University of Nebraska-Lincoln, who worked part time at a downtown Lincoln store. On the date of her disappearance, Forycki was to meet a friend for lunch around 11:30 and then be at her place of employment at around 1 o'clock. She was observed leaving her apartment around 11 o'clock that morning, walking toward the downtown area as was her custom, because she did not own or have access to an automobile. She failed to keep her luncheon engagement that day and was never seen or heard from again.

As was previously mentioned, her remains were discovered in Cass County, Nebraska, on September 13, 1978. The skeleton was found inside an antique water wagon which was being prepared for restoration. The water tank atop the wagon's running gear was approximately 10 feet long by 3 feet wide, having a covered top, the opening therein being roughly 2 feet by 21/2 feet. The skeleton was found beneath three logs, 5 feet long and 4 inches in diameter, which were apparently sawed at the ends. Atop these logs were two to three sticks, 4 inches in diameter, and an undetermined number of other sticks 2 inches in diameter. Wedged tightly in the opening of the water tank was a roll of woven wire fencing. The water tank had several holes in its sides which were identified as bullet holes, although the date of the making of such holes and the caliber of weapons involved were not definitely determined.

The skeleton was removed from the water tank by an anthropologist using standard techniques. Before removal, the skeleton was observed to be in roughly anatomical position, lying on its back; the feet extended and together; left arm along the left side, with the left hand where the hip would be; right arm pulled up, with the right hand, facing palm up, where the right ear would be; head slightly turned to the right. The skull was located approximately 11/2 feet from the end of the water tank, the abdominal section of the skeleton being located beneath the opening in the top of the water tank. The skeleton showed no signs of trauma or force applied to fracture the bones, with the following exceptions: The right thumb bone and the right radius at the wrist end had apparent defects.

The cause of the defects was undetermined. A forensic scientist who examined the bones believed the defects were consistent with having been formed by a bullet. The anthropologist was of the opinion that the defects were not caused by a bullet. Notwithstanding the dispute as to the cause of defects, the county coroner's physician testified that a wound to the wrist or finger was usually not mortal.

No jewelry, fasteners, zippers, clasps, buckles, or shoes were found in the water tank. A lead object, which exhibited characteristics of a .22-caliber bullet from a rimfire cartridge, was found beneath the skeleton in the abdominal area where the left kidney would have been had the body not been decomposed. While no cause of death could specifically be established by any witness, the county coroner's physician was allowed to testify, over objection, that the skeleton did not show any evidence of fractures, tumors, or healed fractures; of death from natural disease processes; or of death from an accident caused by force applied to bones to fracture them. However, he could not make a determination of the specific and immediate cause of death from an examination of the skeleton.

Evidence with regard to whether Forycki might have committed suicide was also introduced. Following a description of the observable characteristics which a person with suicidal intent or tendencies exhibits, a psychiatrist, whose specialty was in the area of depression and manic-depressive illnesses, testified that he did not believe Forycki was suicidal at the time of her disappearance. This opinion was in answer to a hypothetical question which ostensibly included the observations of her roommate, friends, family and acquaintances with regard to Forycki's demeanor prior to her disappearance. He further examined a writing made by Forycki on October 2, 1974, from which he said "describes the young lady who although is having transient problems is functioning in my estimation normally."

A second psychiatrist disagreed with the above-mentioned witness in certain respects. He acknowledged, after reading a transcript of the first psychiatrist's testimony, that the characteristics described by the latter were classical symptoms of a type of depression. However, he testified such characteristics were not commonly found in younger people, and, further, there are other types of depression. Moreover, he was of the opinion that Forycki could have committed suicide, noting that a person would not write a note similar to that written by Forycki on October...