State v. Kern, 85-876

• Decision Date: 05 December 1986
• Docket Number: No. 85-876,85-876
• Citation: 224 Neb. 177,397 N.W.2d 23
• Parties: STATE of Nebraska, Appellee, v. Clayton KERN, Appellant.
• Court: Nebraska Supreme Court

Page 23

397 N.W.2d 23

224 Neb. 177

STATE of Nebraska, Appellee, v. Clayton KERN, Appellant.

No. 85-876.

Supreme Court of Nebraska.

Dec. 5, 1986.

Syllabus by the Court

1. Venue: Appeal and Error. A motion for change of venue filed pursuant to Neb.Rev.Stat. § 29-1301.01 (Reissue 1985) is addressed to the sound discretion of the trial court, whose ruling will not be disturbed absent a clear abuse of that discretion.

2. Venue: Appeal and Error. A trial court abuses its discretion in denying a motion for change of venue where the defendant establishes that local conditions and pretrial publicity make it impossible to secure a fair trial.

3. Venue: Appeal and Error. The factors used to determine whether a change of venue should have been granted due to pretrial publicity include the nature of the publicity; the degree to which the publicity has circulated throughout the community; the degree to which the publicity circulated in areas to which venue could be changed; the length of time between the dissemination of the publicity complained of and the date of trial; the care exercised and ease encountered in selection of the jury; the number of challenges exercised during the voir dire; the severity of the offense charged; and the size of the area from which the venire is drawn.

4. Juror Qualifications. A juror need not be totally ignorant of the facts and issues involved; it is sufficient if the juror can lay aside his or her impressions or opinion and render a verdict based on the evidence presented in court.

5. Trial: Evidence. The admission or exclusion of evidence is a matter left largely to the sound discretion of the trial judge.

6. Rules of Evidence: Other Acts. Neb.Rev.Stat. § 27-404(2) (Reissue 1985) is an inclusionary rule permitting the use of relevant other crimes, wrongs, or acts for all purposes except to prove the character of a person in order to show that such person acted in conformity with that character.

7. Rules of Evidence: Other Acts. Neb.Rev.Stat. § 27-404(2) (Reissue 1985) permits evidence of other crimes, wrongs, or acts if such is relevant for any purpose other than to show defendant's propensity or disposition to commit the crime charged.

8. Rules of Evidence: Other Acts. Evidence of other crimes, wrongs, or acts may be admitted where the evidence is so related in time, place, and circumstances to the offense charged as to have substantial probative value in determining the accused's guilt of the offense in question.

9. Rules of Evidence: Other Acts. The admissibility of evidence concerning other crimes, wrongs, or acts must be determined upon the facts of each case.

10. Rules of Evidence: Other Acts: Intent. No exact limitation of time can be fixed as to when evidence of other crimes, wrongs, or acts tending to prove intent to commit the offense charged is remote.

11. New Trial: Appeal and Error. While any one of several errors may not, in and of itself, warrant a reversal, if all of the errors in the aggregate establish a defendant did not receive a fair trial, a new trial must be granted.

12. 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 witnesses, determine the plausibility of explanations, or weigh the evidence. Such matters are for the trier of fact, and a finding made by the trier of fact must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support it.

13. Homicide: Intent. Premeditation, or the design and purpose to kill, exists when the intent to kill is formed before the act causing the death, and not merely simultaneously with that act.

14. Homicide: Intent. No particular length of time is required in order for premeditation to exist; the time used in premeditating may be so short as to be instantaneous, and the intent to kill may be formed at any moment before the killing.

15. Homicide: Intent: Trial. Where first degree murder is charged, the elements of both premeditation and intent are for the jury.

16. Verdicts: Appeal and Error. After a jury has considered all of the evidence and returned a verdict of guilty, that verdict may not, as a matter of law, be set aside on appeal for insufficiency of evidence if the evidence sustains some rational theory of guilt.

Bernard J. Ach, Friend, and Patrick J. Craven, Crete, for appellant.

Robert M. Spire, Attorney General, and Dale A. Comer, Lincoln, for appellee.

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

CAPORALE, Justice.

A jury found defendant, Clayton Kern, guilty of first degree murder in violation of Neb.Rev.Stat. § 28-303(1) (Reissue 1985). He was thereafter so adjudged and sentenced to life imprisonment. The errors assigned to the district court question (1) its failure to grant a change of venue, (2) certain of its evidentiary rulings, and (3) its failure to find the evidence insufficient to prove the charge. The record does not sustain the errors assigned, and we therefore affirm the judgment and sentence of the district court.

Defendant had known for approximately a month prior to the killing that his wife, Theresa, intended to divorce him. Once he acquired that knowledge, defendant began treating his wife and adopted 11-year-old daughter, Laura, who was his wife's natural child, more kindly. He also asked Barbara Nigg, a close friend and neighbor, to help the couple reconcile.

When it became apparent that his wife would not reconsider her decision concerning the divorce, defendant searched for another living arrangement. While he continued to live with his wife at their Crete apartment, defendant had, on May 16, 1985, made a deposit for the rental of another apartment in the same city.

On the day of the killing, May 18, 1985, in the presence of defendant's nephew, Scott Kern, and Cherryl Woodard, one of Theresa Kern's sisters, defendant wrote a note which provided that in the event of his death Woodard was to receive any money owed to him by his employer. Defendant also stated he intended to have his employment insurance made payable first to Woodard, then to his daughter. He asked that in the event of his death Woodard give his wife $200 per month for the daughter's care. Upon his wife's death, Woodard was to use the money to care for the daughter. Defendant also told Woodard that she was to use part of the money to buy three burial plots and asked her to promise to bury him next to his wife.

On May 1, 1985, defendant had informed Woodard that he would rather see his wife dead than with anyone else. He also told another of his wife's sisters, Geraldine Deeringer, that he could not live without his wife and could not stand losing her. At another time during that month, "out of the clear blue," defendant had begun laughing and told Nigg he knew how to get even with his wife; he would get a spot next to where she was to be buried, and he would be buried beside her.

During the afternoon of the day of the killing, the daughter asked if she could spend the night with Woodard so that she could attend her cousin's graduation the next day. Defendant replied affirmatively, saying that he was going to let her stay at a friend's anyway if she had asked. The evidence also establishes that it was not unusual for the daughter to spend weekends with friends, and she had also not been at home the night before the killing.

Sometime before midnight on the night of the killing, defendant arrived at Woodward's residence in Ashland and wanted both Woodard and his daughter to come with him. After unsuccessfully attempting to arouse his daughter, defendant and Woodard got into defendant's automobile and began riding around. Once on the road, defendant told Woodard that he had killed his wife, stating that he had choked her to death back in their apartment when she had told him she was in love with another man. Woodard initially did not believe defendant and asked if he had been able to find a pulse. Defendant replied he had not checked for one. Woodard also asked whether he had seen her sister's stomach move, and defendant replied that he thought he had.

Defendant and Woodard then proceeded to search for a telephone, and found one at a Greenwood bar. At the bar Woodard telephoned the Niggs and asked them to confirm whether her sister was in fact dead. Defendant then telephoned a friend, LeRoy Dimmitt, and told Dimmitt that he was in trouble because he thought he had killed his wife. Defendant also made arrangements for his nephew to come to the bar and pick up Woodard.

After those telephone calls had been made, defendant flagged down state patrolman Ronald Balthazor, who, in response to a telephone call placed by the bar owner, had been on his way to a "disturbance" at the bar. Defendant was highly agitated and began yelling, "I killed her, I killed her, I killed my wife with my own hands, I choked her to death." Defendant was then given the Miranda warnings, after which he stated to Balthazor that he was sure his wife was dead. When asked if he had given her any medical attention, he replied, "No, I killed her."

Defendant was later taken to the county-city jail in Lincoln for further questioning and was again given the Miranda warnings. According to Ronald Boardman, who questioned defendant in Lincoln, defendant stated that on the evening of the killing he and his wife had been at their apartment watching television and talking about their divorce. At what he believed to be 9 p.m., the wife said that they would make love one last time and left the room, returning undressed. While the couple was hugging and kissing, the wife told defendant she was still in love with another man. At that point defendant "lost it" and killed his wife. Defendant then carried the body into the bedroom, placed it on the bed, and planned to commit suicide. He got a knife from the kitchen,...