State v. Lamb, 81-851

• Decision Date: 11 February 1983
• Docket Number: No. 81-851,81-851
• Citation: 213 Neb. 498,330 N.W.2d 462
• Parties: STATE of Nebraska, Appellee, v. David Joseph LAMB, Appellant.
• Court: Nebraska Supreme Court

Page 462

330 N.W.2d 462

213 Neb. 498

STATE of Nebraska, Appellee, v. David Joseph LAMB, Appellant.

No. 81-851.

Supreme Court of Nebraska.

Feb. 11, 1983.

Syllabus by the Court

1. Miranda Rights. Interrogation occurs when the subject is placed under a compulsion to speak.

2. Miranda Rights: Confessions. Generally, statements made in a conversation initiated by the accused are not the results of interrogation and are admissible.

3. Motions to Suppress: Appeal and Error. Factfindings by the trial court on a motion to suppress will not be overturned on appeal unless clearly wrong.

4. Confessions. Intoxication is not conclusive on the issue of the voluntariness of a statement.

5. Confessions: Appeal and Error. A determination by the trial court that a statement was made voluntarily will not be disturbed on appeal unless clearly wrong.

6. Convictions: Appeal and Error. A conviction will not be reversed because of the admission of evidence not prejudicial to the defendant.

7. Confessions: Right to Counsel. Spontaneous statements made by the defendant, even after counsel has been requested, if not induced by the police or if made during conversations not initiated by the officers, are not "interrogation." The defendant must be subjected to "interrogation" in order for the right to counsel to come into play.

8. Right to Counsel: Waiver. The failure of the police to notify counsel, even if aware of such representation, does not violate the defendant's sixth amendment rights to the presence of counsel when the right has been waived voluntarily.

9. Jury Instructions. It is the duty of the trial court to instruct the jury on the law of the case whether requested to do so or not. Failure to do so constitutes prejudicial error.

10. Jury Instructions. Alleged errors in instructions which are not prejudicial to the complaining party are not grounds for reversal of a judgment otherwise correct.

11. Homicide: Mental Competency. In order to prove the requisite mental state for murder in the first degree, the State is required to show a condition of the mind which was manifested by intentionally doing a wrongful act without just cause or excuse and which is defined as any willful or corrupt intention of the mind.

12. Criminal Law: Mental Competency. The test of responsibility for crime is the defendant's capacity to understand the nature of the act alleged to be criminal and the ability to distinguish between right and wrong with respect to the act.

13. Criminal Law: Insanity. Insanity as a defense must be shown to exist at the time of the offense.

14. Criminal Law: Mental Competency. The fact that a defendant had some form of mental illness or defect does not by itself establish lack of responsibility.

15. Appeal and Error. Generally, consideration of a cause in this court is limited to errors assigned and discussed.

16. Homicide: Photographs. In a homicide case photographs of the victim are admissible, even if gruesome, if a proper foundation is laid and they are received for purposes of identification, to show the condition of the body, the nature and extent of the wounds, and to establish malice or intent.

17. Jurors. A juror who has indicated an inability to fairly and impartially determine guilt may be excused for cause.

Dennis R. Keefe, Lancaster County Public Defender, and Scott P. Helvie, Asst. Public Defender, Lincoln, for appellant.

Paul L. Douglas, Atty. Gen., and Mel Kammerlohr, Asst. Atty. Gen., Lincoln, for appellee.

KRIVOSHA, C.J., and BOSLAUGH, McCOWN, CLINTON, WHITE, HASTINGS, and CAPORALE, JJ.

BOSLAUGH, Justice.

The defendant appeals from his conviction for first degree murder and sentence to life imprisonment. The defendant has assigned as error the denial of his motion to suppress and the subsequent admission into evidence of the challenged testimony; the "death qualification" of the jury; the admission into evidence of a photograph of the victim; and the giving of an instruction on the defense of intoxication. The defendant has also assigned as error that the verdict was contrary to the evidence and the law and that the finding by the sentencing panel that an aggravating circumstance existed was erroneous.

On July 14, 1980, the defendant shot and killed his wife, Dell Lamb, at their trailer home in Lincoln, Nebraska. After shooting his wife the defendant shot and killed their two dogs. The defendant had been drinking and had purchased the rifle used in the shooting earlier that day. At about 5:22 in the evening, the defendant called the long-distance operator, who referred the call to the Lincoln police dispatcher. The defendant stated that he had shot and killed his wife. When the police arrived at the home, Mrs. Lamb was dead. The defendant was then taken into custody.

At the arraignment on the charge of first degree murder, the defendant stood mute and a plea of not guilty was entered. Later the plea was changed to not guilty by reason of insanity, and then to not responsible by reason of insanity. After a lengthy trial the jury returned a verdict of guilty of first degree murder. Following conviction, a sentencing panel imposed a sentence of life imprisonment.

The assignment of error concerning the ruling on the pretrial motion to suppress is directed primarily at three statements made to the police by the defendant after his arrest. The first statement was made shortly after the defendant arrived at the police station. Defendant had been taken to the station in a police cruiser driven by Officer Shurtleff. During the ride the defendant made remarks about the temperature of the car and told Shurtleff that he "was sick of seeing his wife suffer." At the station the defendant was placed in a holding room until a detective could be found to interview him. While in this room, the defendant told Shurtleff that he had shot his wife and was going to shoot himself but decided to drink some whiskey first. A few moments later the defendant said to Shurtleff, "How would you like it?" Shurtleff replied, "What do you mean by that?" The defendant answered, "I have to do the cooking, washing, the laundry. And I got tired of it, and I got tired of seeing her suffer so I shot her." Shurtleff testified that he was concerned about whether the defendant was uncomfortable, ill, or angry at being placed in that particular holding room. At the time, no Miranda warnings had been given to the defendant and Shurtleff had not posed any other questions to the defendant.

The defendant contends that the statement made in response to the question "What do you mean by that?" should have been suppressed, as it was the result of an unconstitutional custodial interrogation. The defendant contends that before any custodial interrogation by police can take place, the rule of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), requires that the defendant be apprised of his right against self-incrimination and of his right to the assistance of counsel. The defendant argues that interrogation occurs either through express questioning or its "functional equivalent," which is defined as police words or actions known by police to be reasonably likely to elicit an incriminating response. Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980).

In ruling on the motion to suppress, the trial court found that the statement was not made as a result of interrogation, but rather as the result of a "neutral," "spontaneous" question, not designed to elicit a confession.

The issue presented is whether this question constituted interrogation within the purview of Miranda and Innis. This court has determined that interrogation occurs when the subject is placed under a compulsion to speak. In re Interest of Durand, 206 Neb. 415, 293 N.W.2d 383 (1980). Statements made in a conversation initiated by the accused or spontaneously volunteered by the accused are not the result of interrogation and are admissible. State v. Pittman, 210 Neb. 117, 313 N.W.2d 252 (1981); State v. Red Feather, 205 Neb. 734, 289 N.W.2d 768 (1980).

A number of cases have held that this type of question does not amount to interrogation. In Leslie v. Wainwright, 511 F.Supp. 753 (M.D.Fla.1981), the court, in a footnote, stated that a police officer's excited utterance to defendant, "What did you say?" did not constitute improper interrogation. In Com. v. Shepherd, 269 Pa.Super. 291, 409 A.2d 894, 896 (1979), the court said: "Where there is no expectation of an admission and the police conduct is not an attempt to obtain an admission, there is no interrogation." In State v. Link, 289 N.W.2d 102 (Minn.1979), it was held that questions which had "nothing to do with investigative criminal activity" were not proscribed by Miranda. In United States v. Pauldino, 487 F.2d 127 (10th Cir.1973), cert. denied 415 U.S. 981, 94 S.Ct. 1572, 39 L.Ed.2d 878 (1974), defendant was arrested for auto theft. He volunteered that he had a bill of sale. When asked by police if he had it, defendant replied he did not. The police question was held not to be a violation of Miranda, as it was a course of inquiry related and responsive to a volunteered remark. In Johnson v. State, 269 Ind. 370, 377, 380 N.E.2d 1236, 1240 (1978), the court stated: "Not every statement uttered by a police officer which is punctuated with a question mark will necessarily constitute an interrogation.... Rather, it is necessary to view the statement in the context in which it was made." In the Johnson case the officer's remark "What happened?" was held to be more in the nature of a greeting intended for its calming effect than for obtaining an admission, and thus the responsive statement was a spontaneous, voluntary, and unsolicited remark. See, also, United States v. Voice, 627 F.2d 138 (8th Cir.1980).

Factfindings by the trial court on a motion to suppress will not be overturned on appeal unless clearly wrong. A totality of the circumstances test is used. State...