State v. Myers
| Decision Date | 01 April 1980 |
| Docket Number | No. 42839,42839 |
| Court | Nebraska Supreme Court |
| Parties | STATE of Nebraska, Appellee, v. Fred W. MYERS, Appellant. |
Syllabus by the Court
1. Criminal Law: Trial: Witnesses: Mental Health. Nonexpert witnesses who have an intimate personal acquaintance with and an opportunity to observe the actions and demeanor of a person, before, at, and after the time in question, may be permitted to testify as to his sanity or insanity when they have stated the primary facts which support their conclusion.
2. Criminal Law: Trial: Juries: Statutes. Under section 29-2022, R.R.S.1943, the determination of whether or not a jury should be sequestered during the trial of a criminal case is left to the discretion of the court.
Casey & Elworth, Plattsmouth, for appellant.
Paul L. Douglas, Atty. Gen. and Judy K. Hoffman, Lincoln, for appellee.
Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE, and HASTINGS, JJ.
The defendant, Fred W. Myers, was charged with murder in the first degree in having shot and killed his father at their home in Louisville, Nebraska. After a court-entered plea of not guilty, the defendant was tried before a jury, found guilty of murder in the second degree, and sentenced to life imprisonment in the Nebraska Penal and Correctional Complex.
On appeal to this court, defendant contends that the trial court erred in two matters: Failure to sequester the jury during a break in the trial, and allowing a nonexpert witness to give opinion testimony as to the sanity of the defendant. We affirm.
The evidence indicates that on the evening of September 12, 1978, the defendant and his father were both at home. The county sheriff and a deputy came to defendant's house to inform him that his son, John Myers, was going to be placed in a temporary foster home. While John Myers was gathering some of his clothes and personal items, the defendant spoke briefly with the sheriff. He showed the sheriff that his father (John's grandfather) was passed out from drunkenness again, and stated that he would like to have his father committed for treatment of his alcoholism. A short time later, after the sheriff had left and was en route to Cedar Creek, he received a call telling him that there had been a shooting at the Myers home. Upon returning there, the sheriff talked to the defendant and arrested him without further incident.
The fact that the defendant did shoot his father has never been in issue, since the defendant told both the sheriff and another person about the shooting. However, an issue was raised concerning the sanity of the defendant at the time of the shooting. The defendant claims it was error to allow one of the investigating officers, Sheriff Fred Tesch, to express his opinion as to the sanity of the defendant on the night of the shooting.
The rule in Nebraska has always been that a nonexpert with an intimate personal acquaintance may be allowed to testify as to the sanity or insanity of a defendant. In Torske v. State, 123 Neb. 161, 242 N.W. 408 (1932), the court dealt with a similar problem and stated the following: "(n)onexpert witnesses who have an intimate personal acquaintance (with) and an opportunity to observe the actions and demeanor of a person, before, at and after the time in question, may be permitted to testify as to his sanity or insanity when they have stated the primary facts which support their conclusion." This rule was later approved in Noble v. Sigler, 244 F.Supp. 445 (D.C.Neb., 1964), aff'd. 351 F.2d 673, cert. den. 385 U.S. 853, 87 S.Ct. 98, 17 L.Ed.2d 81 (1966). See, also, Bothwell v. State, 71 Neb. 747, 99 N.W. 669 (1904); People v. Wright, 58 Mich.App. 735, 228 N.W.2d 807 (1975); People v. Johnson, 52 Mich.App. 560, 218 N.W.2d 65 (1974). The jury may weigh this opinion testimony and determine its credibility, but the mere fact that it is given by a nonexpert witness does not make it inadmissible if the witness qualifies as an intimate personal acquaintance of the accused.
The evidence indicates that the nonexpert witness, Sheriff Tesch, had the necessary intimate personal relationship with the defendant. The sheriff had dealt with and known the defendant for some 15 years, having observed the defendant in various emotional states. He conversed with the defendant both shortly before and after the shooting. The nonexpert witness in this case clearly fits within the definition of an intimate personal acquaintance. The trial court did not err in allowing him to express his opinion on the sanity of the defendant.
The defendant also contends that the court erred in failing to sequester the jury during trial. The jury was impaneled and sworn on April 12, 1979. Due to the Easter holidays, trial did not begin until April 16, 1979. In State v. Robbins, 205 Neb. 226, 287 N.W.2d 55 (1980), the court stated that the determination of whether or not a jury should be sequestered during the trial of a criminal case is left to the discretion of the trial court. The defendant has produced no evidence at all that any jury tampering or misconduct occurred during the 4-day break from April 12 to April 16. The trial court did not abuse its discretion in this matter. We find both of defendant's assigned errors to be without merit.
AFFIRMED.
I concur in the result reached by the majority in this case. I cannot, however, agree that the rule expressed by the majority concerning the right of a nonexpert witness to testify as to a criminal defendant's sanity or insanity is or should be the law. I am fearful that the majority opinion, standing alone without further explanation, may cause the unwary to be led astray. The ultimate fact to be determined in this case was not whether the defendant was sane or insane (meaning whether he was mentally competent) at the time of the commission of the crime, but rather whether he had the ability to distinguish between right and wrong at that time, and who may testify concerning that ultimate fact. The rule involved in this case had its inception in the now famous M'Naghten's Case, 8 Eng.Rep. 718 (1843), wherein the House of Lords determined, "That where an accused person is supposed to be insane, a medical man, who has been present in Court and heard the evidence, may be asked, as a matter of science, whether the facts stated by the witnesses, supposing them to be true, show a state of mind incapable of distinguishing between right and wrong." (Emphasis supplied.)
This jurisdiction has, since its very beginning, followed the rule in the M'Naghten case. See Wright v. People, 4 Neb. 407 (1876).
In 1973, in the case of State v. Jacobs, 190 Neb. 4, 205 N.W.2d 662 (1973), this court was specifically asked to abandon the M'Naghten rule and to replace with either "the irresistible impulse" rule first announced in Durham v. United States, 214 F.2d 862 (D.C. Cir., 1954), or the American Law Institute rule. We rejected both suggestions and again reaffirmed our...
To continue reading
Request your trial
-
State v. Ryan
...an abuse of that discretion or evidence of jury tampering or misconduct, that decision will not be reversed on appeal. State v. Myers, 205 Neb. 867, 290 N.W.2d 660 (1980). Defendant asks that we overrule Myers to the extent that it holds that it is within the trial court's discretion to det......
-
State v. Palmer
...her, but he could not because she was obviously dead. He called 911 and informed them that he had shot his wife. State v. Myers, 205 Neb. 867, 290 N.W.2d 660 (1980). Date of Sentence: June 5, The defendant killed his father by shooting him in the head while in their home. Defendant maintain......
-
State v. Norfolk
...respect to whether Norfolk had, in their presence, experienced delusions or hallucinations. Norfolk relies upon State v. Myers, 205 Neb. 867, 869, 290 N.W.2d 660, 661 (1980), in which this court stated as "Nonexpert witnesses who have an intimate personal acquaintance with and an opportunit......
-
State v. Williams, 83-537
...although not an expert, could have testified that Williams was insane when the crimes charged were committed. See State v. Myers, 205 Neb. 867, 869, 290 N.W.2d 660, 661 (1980) ("a nonexpert with an intimate personal acquaintance may be allowed to testify as to the sanity or insanity of a de......