State v. Hankins, 88-309

CourtSupreme Court of Nebraska
Citation441 N.W.2d 854,232 Neb. 608
Docket NumberNo. 88-309,88-309
PartiesSTATE of Nebraska, Appellee, v. Patrick H. HANKINS, Appellant.
Decision Date23 June 1989

Page 854

441 N.W.2d 854
232 Neb. 608
STATE of Nebraska, Appellee,
Patrick H. HANKINS, Appellant.
No. 88-309.
Supreme Court of Nebraska.
June 23, 1989.

Page 858

Syllabus by the Court

1. Juror Qualifications: Death Penalty. It is permissible to exclude from jury service those whose views on capital punishment are such as to prevent or substantially impair their ability to impartially apply the law to the evidence.

2. Confessions: Miranda Rights: Right to Counsel. A custodial statement may not be received in evidence unless the defendant was first advised (1) of the right to remain silent, (2) that anything said can and will be used against the defendant in court, and (3) of the right to consult with a lawyer, retained or court-appointed, and to have a lawyer present during interrogation.

3. Criminal Law: Words and Phrases. Custodial interrogation is questioning instigated by law enforcement officers after a person has been taken into custody or otherwise deprived of his or her freedom of action in any significant way.

4. Miranda Rights. The mere fact that an investigation has focused on a suspect does not trigger the need for the Miranda warnings in a noncustodial setting.

5. Jurisdiction: Evidence. Generally, the law of the forum determines the admissibility of evidence.

6. Confessions: Police Officers and Sheriffs: Due Process. Coercive police conduct is a necessary predicate to the

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finding that a confession is not voluntary within the meaning of the due process clause of the 14th amendment.

7. Confessions: Evidence. To be admissible in evidence, an accused's statement, admission, or confession must have been freely and voluntarily made, and must not have been the product of or extracted by any direct or implied promise or inducement, no matter how slight.

8. Confessions: Appeal and Error. A determination by the trial judge that a confession has been voluntarily made will not be overturned on appeal absent an abuse of discretion.

9. Homicide: Photographs. In a homicide case photographs of the victim are admissible, even if gruesome, provided a proper foundation is laid and they are received for purposes of identification, to show the condition of the body or the nature and extent of the wounds, or to establish malice or intent, particularly in conjunction with the examining pathologist's testimony.

10. Trial: Evidence: Testimony: Witnesses. Under Neb.Rev.Stat. § 27-510 (Reissue 1985), the trial judge, after determining that the evidence of an informer may be relevant, holds an in camera hearing to determine whether there is a reasonable probability that the informer can give the testimony; if it is determined that the informer would be unable to give the testimony, the judge need not require that the informer's identity be disclosed.

11. Trial: Evidence: Appeal and Error. The admission or exclusion of evidence is a matter within the discretion of the trial court, whose ruling will not be disturbed on appeal absent an abuse of discretion.

12. Evidence: Words and Phrases. Relevant evidence means evidence having any [232 Neb. 609] tendency to make the existence of any fact that is of consequence to the determination of the action appear more probable or less probable than it would appear without the evidence.

13. Criminal Law: Trial: Juries: Appeal and Error: Words and Phrases. Harmless error exists in a jury trial of a criminal case when the court makes an erroneous evidential ruling which, on review of the entire record, did not materially influence the jury in a verdict adverse to the defendant.

14. Due Process: Evidence. Due process requires the government to turn over evidence in its possession that is both favorable and material to a defendant's guilt or punishment.

15. Due Process: Evidence. In the context of the government's duty to turn over to the defense evidence in the government's possession, evidence is material only if there is a reasonable probability that had the evidence been disclosed, the result of the proceeding would have been different.

16. Trial: Evidence: Motions for Mistrial. A mistrial is generally granted upon the occurrence of a fundamental failure preventing a fair trial in the adversarial process.

17. Trial: Evidence: Motions for Mistrial. A mistrial may be warranted where unfairness has been injected into a jury trial and so permeates the proceedings that no amount of admonition to the jury can remove the unfairness to a party and may result from the improper admission of prejudicial evidence.

18. Motions for Mistrial: Appeal and Error. The decision to grant a motion for mistrial is within the discretion of the trial court and will be upheld on appeal absent an abuse of discretion.

19. Trial: Expert Witnesses. An expert can be required to disclose on cross-examination the facts or data underlying his or her opinion.

20. Trial: Expert Witnesses. An expert may be cross-examined for the purposes of testing and inquiring into the basis for his or her opinion.

21. Testimony: Trial: Evidence. Cross-examination is proper as to anything tending to affect the accuracy, veracity, or credibility of a witness, and anything within the knowledge of a witness tending to

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rebut evidence given on direct examination is admissible as a matter of right on cross-examination.

22. Testimony: Trial: Appeal and Error. The scope of cross-examination of a witness rests in the discretion of the trial court, and its ruling will be upheld on appeal unless there is an abuse of discretion.

23. Convictions: Appeal and Error. In determining the sufficiency of the evidence to sustain a conviction, it is not the province of this court to resolve conflicts in the evidence, pass on the credibility of the witnesses, determine the plausibility of explanations, or weigh the evidence; such matters are for the finder of fact. The verdict must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support it.

24. Criminal Law: Motions to Dismiss: Evidence. On a defendant's motion to dismiss for insufficient evidence of the crime charged against the defendant, the State is entitled to have all its relevant evidence accepted as true, the benefit of every inference reasonably drawn from the evidence, and every controverted fact resolved in its favor.

[232 Neb. 610] 25. Criminal Law: Directed Verdict. In a criminal case a court can direct a verdict only when (1) there is a complete failure of evidence to establish an essential element of the crime charged, or (2) the evidence is so doubtful in character and lacking in probative value that a finding of guilt based on such evidence cannot be sustained.

26. Confessions: Proof: Corroboration: Convictions. A voluntary confession is insufficient, standing alone, to prove that a crime has been committed, but it is competent evidence of that fact and may, with slight corroborative circumstances, be sufficient to warrant a conviction.

27. Confessions: Proof: Corroboration. Where a crime involves physical damage to a person or property, the prosecution must generally show that the injury for which the accused confesses responsibility did in fact occur and that some person was criminally culpable; there need be no link, outside the confession, between the injury and the confessor.

28. Jury Instructions: Appeal and Error. There is no prejudicial error in jury instructions which, when read together, correctly state the law, are not misleading, and adequately cover the issues.

29. Jury Instructions. The wording of jury instructions is within the trial court's discretion.

30. Criminal Law: Insanity. An accused is sane at the time of the offense if he or she then had the capacity to understand the nature of the act committed and was able to distinguish right from wrong with respect to such act.

31. Criminal Law: Jury Instructions: Insanity: Verdicts. It is not error for the trial court to refuse to instruct the jury on the consequences of a verdict of not responsible by reason of insanity, as the dispositional effects of a verdict in a criminal case are immaterial to a jury's deliberations.

32. Criminal Law: Trial: Pleas: Insanity. In a criminal case the prosecution has the right to open and close argument notwithstanding that the defendant has pled not responsible by reason of insanity.

33. Criminal Law: Pleas: Insanity: Proof. Under Neb.Rev.Stat. § 29-2203 (Reissue 1985), insanity at the time of the offense is an affirmative defense to a crime, and the burden is upon the defendant to prove such insanity by a preponderance of the evidence.

34. Criminal Law: Insanity: Proof: Due Process. Once the facts constituting a crime are established beyond a reasonable doubt based on all the evidence, including the evidence of defendant's mental state, a State may, by statute, require the defendant to prove as an affirmative defense his or her insanity at the time of the offense. Such procedure does not violate the due process clause of the 14th amendment to the U.S. Constitution.

35. Motions for New Trial: Appeal and Error. The granting or refusal of a

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motion for new trial is left to the discretion of the trial court, and in the absence of an abuse of that discretion, the determination will not be disturbed on appeal.

Jeffrey A. Silver, Omaha, for appellant.

[232 Neb. 611] Robert M. Spire, Atty. Gen. and Susan M. Ugai, North Platte, for appellee.


CAPORALE, Justice.

Defendant-appellant, Patrick H. Hankins, pled not guilty or, alternatively, not responsible by reason of insanity, to each of three counts of murder in the first degree in violation of Neb.Rev.Stat. § 28-303(1) (Reissue 1985). Pursuant to verdict, he was adjudged guilty as charged and sentenced to life imprisonment on each conviction, the sentences to be served consecutively. In his appeal to this court, Hankins, in summary, assigns as...

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