State v. Franklin, 40044

• Decision Date: 30 October 1975
• Docket Number: No. 40044,40044
• Citation: 194 Neb. 630,234 N.W.2d 610
• Parties: STATE of Nebraska, Appellee, v. Willie FRANKLIN, Appellant.
• Court: Nebraska Supreme Court

Page 610

234 N.W.2d 610

194 Neb. 630

STATE of Nebraska, Appellee, v. Willie FRANKLIN, Appellant.

No. 40044.

Supreme Court of Nebraska.

Oct. 30, 1975.

Syllabus by the Court

1. The sufficiency of the evidence at a preliminary hearing may be raised only by a plea in abatement filed in the criminal proceeding in the District Court.

2. After trial and conviction in the District Court, any error in the ruling of the District Court on the plea in abatement is cured if the evidence at trial is sufficient to permit the jury to find guilt beyond a reasonable doubt.

3. Where probable cause exists for the arrest of an accused in his motor vehicle upon a public highway and at that time probable cause for the search of his vehicle exists as well, a search of the vehicle a short time later at a different location while the vehicle is still in police custody is not unreasonable even though made without a warrant.

4. It is the general rule that in a criminal prosecution evidence of crimes committed by the accused, other than that with which he is charged, is not admissible. One exception to the genearl rule is that in prosecutions for rape, incest, and sodomy, testimony that the defendant committed the same or similar acts against the prosecutrix is admissible for its corroborative value. Evidence of similar crimes with third persons is not admissible.

5. No judgment shall be set aside, or new trial granted, or judgment rendered in any criminal case, on the grounds of misdirection of the jury, or the improper admission or rejection of evidence, or for error as to any matter of pleading or procedure, if the Supreme Court, after an examination of the entire cause, finds that no substantial miscarriage of justice has actually occurred. § 29--2308, R.R.S.1943.

Michael T. Levy, Omaha, for appellant.

Paul L. Douglas, Atty. Gen., Ralph H. Gillan, Asst. Atty. Gen., Lincoln, for appellee.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, McCOWN, NEWTON

and CLINTON, JJ., and KUNS, Retired District Judge.

CLINTON, Justice.

The defendant was charged with kidnapping, rape, and sodomy in violation of sections 28--417 and 28--408, R.S.Supp.1974, and section 28--919, R.R.S.1943, respectively. He was found guilty by a jury and sentenced to confinement in the Nebraska Penal and Correctional Complex for a term of 3 to 5 years on the first charge, 7 to 10 years on the second charge, and 4 years on the third. All the charges involved the same victim and were part of one continuous transaction. The judgment provided that the terms should be served consecutively.

On this appeal the errors assigned are: (1) The trial court erred in overruling the defendant's plea in abatement before trial, which plea was founded upon the premise that the evidence at a preliminary hearing was insufficient to bind the defendant over for trial. (2) The court erred in overruling the defendant's motion to suppress evidence seized in a search of the defendant's automobile and in admitting such evidence at the trial. (3) The court erred in admitting over objection testimony that the defendant had, 3 weeks prior to the date of the alleged offense, committed or attempted to commit an act of sodomy with another person at about the same place where the rape and sodomy charged here are alleged to have occurred. We affirm.

A summary of the evidence introduced by the State, absent many details, will give the background necessary for a discussion of the errors assigned. On October 11, 1974, during the noon hour, the victim, a girl student, aged 16, whom we will hereafter refer to by the term victim, was waiting at a bus stop at 23rd and Burt Streets in Omaha, Nebraska, in the process of transferring from one bus to another. While she was waiting a black male, later identified as the defendant, Franklin, stopped his automobile, a 1965 brown Buick Riviera, and asked the victim if she wanted a ride. She declined. He repeated the invitation. When she again declined he drew a small caliber hand gun and ordered her into the car. She complied. He directed her to roll up the window and lock the door. He then drove to a nearby self-serve gas station. At that point he told her that if she created a disturbance or attempted to get away he would shoot her. He then got out of the car, placing the hand gun in his belt inside his coat, purchased some gasoline, and drove away with the victim still in the car.

The subsequent activities and journey, which meandered through northeast Omaha to Carter Lake and finally to Hummel Park, consumed about 4 hours. It was during this time that the various and repeated sexual attacks accompanied by violence and threats occurred. The last attack took place outside the car in the woods of Hummel Park. The victim testified that she resisted the defendant's attacks, but finally had to submit. She was frightened that he would shoot her. She had previously discussed with her mother the possibility of sexual attack and had been advised to kick. scream, and fight if the attacker had no weapon, but that if he had a gun, knife, or club she should attempt to talk the attacker out of his purpose. The victim testified that she did not attempt to run away because she was afraid she would be shot.

During some part of the journey, the defendant took from the victim a piece of paper on which she had written her name and telephone number for a school friend but which she had not used because the friend had not come to school that day. After the defendant obtained this paper, he dropped it and ordered her to give him another. She complied by writing on a second sheet of paper her first name and an old teen telephone number no longer used. As an afterthought she added her correct number, thinking that if the defendant did in fact use it, it might lead to his identification. These two slips of paper were both later found in the search of the defendant's car.

During the journey the victim saw an automobile registration slip attached to the visor of the car. She noted and remembered the name Franklin and a portion of an address, 224 Pratt Street.

At about 4:30 p.m. the defendant drove the victim to a point near her home and while the car was still in motion she got out and ran. The defendant drove rapidly away. The victim then went into a nearby drugstore where she met a slight acquaintance who accompanied her to her home. There she told a younger sister (her parents were not yet home from work) what had happened. The sister immediately called the police. A policeman arrived a few minutes later just after her mother came home. The victim was crying and greatly upset. She was immediately taken to a hospital where she was examined and treated. The examination tended to verify her story of abuse although no male sperm was found upon examination and tests.

During the course of the police investigation which followed, it was discovered that a person who lived in the Hummel Park area had seen the defendant's car in Hummel Park about 4 o'clock p.m. It was then occupied by a black male and a long-haired female. At that time the male was striking the woman. When the car left at high speed the observer followed and obtained the license number, Nebraska 1--DD471. This information, plus the defendant's description and the other information furnished by the victim led to the arrest of the defendant on October 13, 1974, when his unoccupied car was found on 24th Street between Burdette and Grant Streets. The police waited there and when the defendant appeared and got into the car they asked for identification. It was furnished by the defendant and he was promptly placed under arrest. Later at the police station the victim viewed Franklin in a lineup and promptly and positively identified him as the kidnapper and attacker.

The facts in connection with the search of the defendant's automobile will be summarized later when we discuss the search and seizure issue. Certain .22 caliber shells and the slips of paper bearing the victim's name and telephone numbers, which we earlier mentioned, were subject of a motion to suppress and after a hearing thereon the motion was denied and the exhibits were received at trial over objection. Also received was the automobile registration slip found in the car at the time of the arrest. It bore, along with the other usual information, the name of the defendant, Willie Franklin, and the address 2224 Pratt Street.

The caretaker of Hummel Park was called to testify. He stated that on October 11, 1974, the date of the alleged crimes, he was patrolling a portion of Hummel Park on foot at about 3:30 or 4 o'clock p.m., even though it was an off-duty day for him. While so doing he came upon an unoccupied brown Buick Riviera at a place in the park referred to as South Point. He saw no one and did not go into the woods as he had his good clothes on. He looked into the car. There were some books in the front part of the car. (The victim had testified that she had her school books with her.) He noted the license number DD 471. He then testified that he had seen the same car at about the same location in the park 3 weeks earlier. On that occasion he heard some shouting, cussing, and arguing coming from the woods and he walked into the woods and saw a naked man. At that point in the trial, defense counsel made objection and bench discussion took place. The court overruled counsel's objection and the witness was permitted to continue describing what he saw. The substance of the additional testimony was that the man he then observed was the defendant and that he was engaged in or attempting an act of fellatio with a woman. The caretaker ordered the persons out of the park and they complied.

Immediately after this testimony, defense counsel moved for a mistrial. The court denied the motion, but after an overnight recess and before further testimony was taken, the court, after identifying the testimony to which it was referring, told the jury that the...