State v. Lynch
| Decision Date | 04 November 1983 |
| Docket Number | No. 83-032,83-032 |
| Citation | 215 Neb. 528,340 N.W.2d 128 |
| Parties | STATE of Nebraska, Appellee, v. Patrick Brian LYNCH, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Homicide: Evidence: Intent. The location, nature, and number of wounds inflicted on a victim are circumstances from which a jury can infer the mental process of the one inflicting the wounds.
2. Homicide: Photographs. Although gruesome, photographs having probative value outweighing possible prejudice to the accused are admissible.
3. Sentences. Under Neb.Rev.Stat. § 83-1,106 (Reissue 1981), one sentenced to life imprisonment is not entitled to credit for time in custodial detention pending disposition of the proceedings on the charge levied.
Douglas W. Thomson of Thomson & Hawkins, St. Paul, Minn., for appellant.
Paul L. Douglas, Atty. Gen., and Terry R. Schaaf, Asst. Atty. Gen., Lincoln, for appellee.
Patrick B. Lynch was charged with first degree murder, namely, homicide with deliberate and premeditated malice or in the perpetration of a robbery. Neb.Rev.Stat. § 28-303 (Reissue 1979). In a jury trial Lynch was acquitted of homicide during the perpetration of a robbery but was convicted of homicide with deliberate and premeditated malice. After his conviction and sentence to life imprisonment in the Nebraska Penal and Correctional Complex, Lynch appeals to this court. We affirm.
The homicide victim, age 57, lived in West Omaha. The victim's daughter, age 20, attended university on the east coast and returned home on December 31, 1981, to stay with her father and share a two-bedroom apartment. In 1980 the victim had informed his daughter that he was a homosexual, and was quite open about his homosexuality.
In the early evening hours of January 2, 1982, the victim went to the home of one of his homosexual acquaintances, viewed pornographic films, and drank wine. Around 9:30 p.m., the victim returned to his apartment, and having informed his daughter that he was "going to go out and see what was going on," left the apartment at 10 o'clock. After her father had left the apartment, the daughter went to her bedroom, shut the door, and went to bed.
Lynch, who had ridden from downtown to West Omaha in the pickup of an "older gentleman," was hitchhiking for return to downtown Omaha. The victim, alone and driving toward downtown, offered Lynch a ride. Lynch accepted, and in the course of the trip informed the victim that he was "down on his luck." The victim indicated that there might be some money for Lynch, if Lynch wanted to be the victim's "friend for a while." Lynch responded that this would be "fine," and the pair proceeded to the victim's apartment. Upon arrival at the victim's apartment complex, Lynch felt that the victim was acting "a little weird." After Lynch had opened a pocketknife which he carried with him, the two entered the building and went to the victim's apartment on the fourth floor.
During the absence of her father that evening, the victim's daughter had remained in her bedroom but had not fallen asleep. At approximately 10:40 p.m. the daughter heard the voices of two people entering the apartment. She recognized the voice of her father. After entering the apartment Lynch and the victim walked down a hallway to the living room, where the victim offered a drink to Lynch. The two then went to the victim's bedroom and the door was closed. In the bedroom the victim disrobed and invited Lynch to engage in sexual acts. When Lynch declined, the victim put his naked body against Lynch. From his pocket Lynch pulled the pocketknife and stabbed the victim once in the chest. When that wounding did not "stop" the victim, Lynch stabbed the victim in the neck. The victim fell bleeding to the floor. Lynch watched for a while, thought the victim was dead, and started to leave. As Lynch was leaving the bedroom, the victim reached up to grab Lynch. A struggle followed, during which Lynch stabbed the victim several additional times. According to Lynch, "I just slit his throat, man."
During this episode, the victim's daughter had remained behind the closed door of her bedroom. Approximately 10 minutes after Lynch and the victim had entered the bedroom, the daughter heard a "thump" on her father's bed and heard "someone groaning." The daughter surmised "they were having sex." The groans stopped and were followed by about 5 minutes of silence, when the daughter heard her father's voice: "You're killing me, you sonofabitch." About "a minute later" a hall light came on. Someone was operating the shower in the bathroom adjacent to the victim's bedroom. Hearing someone go back into her father's bedroom, the daughter opened her bedroom door and saw her father lying "in the doorway of his bedroom." Her father's naked body was covered with blood, and was not moving. While someone was "rustling" in her father's bedroom, the girl left and ran to a neighbor's apartment to call the police.
Ten minutes after the daughter had left the apartment, four uniformed policemen responded to the call. As the police approached the victim's apartment, the door was slightly ajar. Upon entering the apartment the police found Lynch in the hallway leading to the victim's bedroom. In the doorway of the bedroom the police discovered the wounded victim, with his throat cut "wide open." There was blood on the bottom of the victim's feet. Shortly after handcuffs had been applied to him, Lynch volunteered to an officer, "It's in my back pocket." The officer removed the pocketknife from the back pocket of Lynch's jeans. Also, a $20 bill was removed from Lynch. Throughout this time, Lynch was "real calm" and cooperative. Lynch also informed the police about a sack in the bathroom--a sack containing miscellaneous jewelry of the victim.
In his interview by the police Lynch never mentioned defending himself or being afraid, and did not mention any attempt to ward off advances made by the victim. Lynch did acknowledge that he received $20 from the victim that night at the apartment.
A pathologist testified concerning the cause of the victim's death. According to the pathologist, the external examination of the victim revealed "multiple cutting and stabbing wounds" about the neck, left side of the chest, and right side of the back. The pathologist described the difference between a "cutting wound" and a "stabbing wound." A cutting wound was "longer than it is deep," and is inflicted in a more horizontal plane. A stabbing wound, deeper than it is long, has more penetration. There were four separate cutting wounds to the neck, which severed arteries and veins, including the jugular veins--principal veins carrying blood from the head and the neck. Severed jugular veins produce extensive bleeding. A stab wound was located in the lower right side of the neck. In addition to the five wounds in the neck, there was a stab wound in the left side of the chest which penetrated the right ventricle of the victim's heart and resulted in bleeding into the heart sac. The pathologist further observed a stab wound in the thorax, that is, in the upper right part of the victim's back. There were seven separate stabbing and cutting wounds and two fractures of costal cartilage of the victim's chest. Cause of death was "hemorrhage or bleeding due to multiple stabbing and cutting wounds of the neck and chest." The pathologist stated that the wounds in the neck and throat of the victim caused the loss of much blood and were "lethal," and that the wounds in either the victim's heart or in his throat could have been fatal. As summarized by the pathologist after describing the victim's wounds, "certainly the aggregate of all of the wounds are, in my opinion, lethal injuries." The victim was 5 feet 8 1/2 inches tall and weighed 140 pounds. According to the pathologist, the knife taken from Lynch could have inflicted the wounds on the victim.
During the course of trial, counsel for Lynch objected to five photographs of the victim which were taken at the time of the autopsy. The objection was based on irrelevancy and the inflammatory nature of the photographs. The pathologist referred to these photographs in the course of his testimony about the nature and location of the wounds and the cause of death.
Lynch did not testify, and rested his case immediately after the conclusion of the State's case. The jury returned a verdict of guilty to the charge of homicide with deliberate and premeditated malice. After considering evidence regarding the aggravating and mitigating circumstances of the crime, the trial court imposed a life sentence on Lynch.
Lynch alleges four errors in connection with his trial: (1) The trial court's failure to grant a continuance; (2) The insufficiency of evidence concerning premeditation in his conviction of murder in the first degree; (3) The abuse of discretion by the trial court in admitting photographs of the victim at the time of the autopsy; and (4) The trial court's failure to give credit for the time Lynch was in custody awaiting trial and sentence.
Because the elements of murder in the first degree include "deliberate and premeditated malice," there is a mental process, namely, the subjective state of the perpetrator, which can be proved by circumstantial evidence. See, State v. Beers, 201 Neb. 714, 271 N.W.2d 842 (1978); State v. Payne, 205 Neb. 522, 289 N.W.2d 173 (1980). Concerning the element of premeditation, Savary v. State, 62 Neb. 166, 170, 87 N.W. 34, 36 (1901). See, also, State v. Nokes, 192 Neb. 844, 224 N.W.2d 776 (1975).
In this case the evidence showed that Lynch entered the apartment after ...
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