State v. Norfolk

• Decision Date: 07 February 1986
• Docket Number: No. 85-045,85-045
• Parties: STATE of Nebraska, Appellee, v. Robert C. NORFOLK Appellant.
• Court: Nebraska Supreme Court

Page 120

381 N.W.2d 120

221 Neb. 810

STATE of Nebraska, Appellee, v. Robert C. NORFOLK Appellant.

No. 85-045.

Supreme Court of Nebraska.

Feb. 7, 1986.

Syllabus by the Court

1. Miranda Rights: Confessions: Right to Counsel. Before a defendant's custodial statement is admissible as evidence, the absolute and indispensable prerequisites of a Miranda warning must have been satisfied preceding the interrogation producing such statement, namely, law enforcement personnel must (1) inform the defendant of the right to remain silent, (2) explain that anything said can and will be used against the defendant in court, and (3) inform the defendant of the right to consult with a lawyer and to have a lawyer present during interrogation. If a defendant to be interrogated is indigent, the defendant must also be informed that a lawyer will be appointed to represent the defendant.

2. Miranda Rights: Waiver: Words and Phrases. In reference to a waiver of the rights designated in the Miranda warning, intelligent is not synonymous with prudent, and intelligence is not equated with wisdom.

3. Miranda Rights: Waiver. To determine whether a defendant acted intelligently regarding a waiver of any right designated in the Miranda warning, the proper standard is whether a defendant, at the time of the waiver, possessed the capacity to understand and act in response to the Miranda warning given by an interrogating officer.

4. Confessions: Evidence. The test for determining admissibility of a statement obtained by police deception is whether that deception produced a false or untrustworthy confession or statement.

5. Witnesses: Trial. A lay witness, when testifying on the basis of firsthand knowledge, can relate specific objective observations of a person's conduct, condition, or behavior, notwithstanding that such witness may not be allowed to offer his opinion as to the person's sanity.

6. Trial: Evidence: Appeal and Error. The admission or exclusion of evidence is a matter left largely to the sound discretion of the trial court, and its ruling will be upheld absent an abuse of discretion.

Thomas M. Kenney, Douglas County Public Defender, and Stanley A. Krieger, Asst. Public Defender, for appellant.

Robert M. Spire, Atty. Gen., and Lynne R. Fritz, Asst. Atty. Gen., for appellee.

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

SHANAHAN, Justice.

Robert C. Norfolk appeals his conviction for first degree murder after a bench trial in the district court for Douglas County. We affirm.

In May 1984 Norfolk rented a room in the residence of his aunt, Della Jones. On the morning of May 12, after a night of drinking, Norfolk returned to his room, obtained a butcher knife from the kitchen, cut the telephone lines in the house, stabbed Jones, and strangled her to death.

Later on May 12, Jones' niece, Barbara, became concerned about Jones' well-being when Jones neither answered her telephone nor responded to knocks on the front door of her house. Near 4 p.m., Barbara observed Norfolk entering Jones' residence and asked a friend, Larry Nelson, to inquire about her aunt's whereabouts. Nelson confronted Norfolk, who, after stating that Jones had left town around 3 o'clock to visit her sister, drove away in his car. Sometime close to 7:30 p.m., Barbara entered Jones' residence, found Jones lying on the floor, and contacted the police.

On May 13, at approximately 9:30 p.m., a police officer in downtown Omaha noticed that the automobile being driven by Norfolk matched the description of the vehicle associated with the Jones homicide and stopped the Norfolk car. When the officer mentioned that Norfolk was a suspect in a homicide investigation, Norfolk replied, "Do yourself a favor and call a backup." The officer arrested Norfolk, who responded, "Don't shoot. I was on my way down to turn myself in anyway." Later, in the course of his conversation with the arresting officer, Norfolk again mentioned that he was on his way to the police station to turn himself in "for the killing." According to the officer, at the time of the arrest Norfolk seemed "nervous and a little upset" but did not appear to be under the "influence of any drugs or alcohol."

Norfolk was taken to the police station, where, at 10:55 p.m., Officer James C. Wilson informed Norfolk of the Miranda rights. After Norfolk orally waived his Miranda rights and then signed the standard Miranda advisory form used by Omaha police, Wilson commenced interrogation, which lasted more than 2 hours and resulted in Norfolk's oral statement that he had stabbed Jones, strangled her lifeless, and had intercourse with her. Wilson had told Norfolk that the officer "knew everything," because Wilson had a copy of the autopsy report concerning Jones and "can see it here in the report." In fact, an autopsy report had not been issued at the time of Wilson's remark to Norfolk. Another officer told Norfolk, "Well, maybe you'd feel better if you would tell us everything." After his oral statement Norfolk agreed to give a tape-recorded statement. Wilson again informed Norfolk concerning the Miranda rights. At commencement of the recorded interrogation, Wilson commented that the statement to be recorded was for "the official record." Norfolk, at that point and for the first time, requested an attorney. Wilson ignored the request for an attorney and Norfolk's later demand that the recorder be turned off. Throughout the interrogation, Wilson had no difficulty communicating with Norfolk, who appeared to understand all questions asked by Wilson.

The State filed an information charging Norfolk with first degree murder, namely, Norfolk had killed Jones "purposely and of deliberate and premeditated malice or in the perpetration of, or in an attempt to perpetrate a sexual assault in the first degree...." See Neb.Rev.Stat. § 28-303 (Reissue 1979). Norfolk moved to suppress his custodial statements made to police. After an evidentiary hearing on Norfolk's motion, the district court determined that the taped statement, although voluntary, was obtained in violation of Norfolk's Miranda rights; therefore, the tape-recorded statement was not admissible during the State's case in chief, but could be used for impeachment purposes as part of the State's rebuttal evidence. The court also concluded, however, that Norfolk had "knowingly and voluntarily" waived the Miranda rights concerning Norfolk's oral statement made before his taped statement and that such oral statement, "given voluntarily in compliance with the Miranda rights," was thereby admissible for the State's case in chief.

Before trial Norfolk notified the State of his intention to assert an insanity defense, see Neb.Rev.Stat. § 29-2203 (Cum.Supp.1984), and then waived his right to a jury trial. At trial the State relied primarily on testimony from officers involved in Norfolk's interrogation, who recited the oral statement made by Norfolk before he requested an attorney; testimony from Jones' niece, Barbara, and her friend, Leroy Nelson, who described the events leading to the discovery of Jones' body; and testimony from the investigating officer, who, when describing the interior of Jones' residence, testified that the cords of two telephones had been cut. The State also called Carol Quiroz and Norfolk's former employer, Richard Ogden, as witnesses to testify about certain aspects of Norfolk's behavior. Quiroz had been acquainted with Norfolk for 2 1/2 years and was a tenant at the apartment house where Norfolk lived before he rented from Jones. Ogden had employed Norfolk for approximately 5 months. When the prosecutor asked Quiroz whether she was aware of Norfolk's having any "delusions" or whether she had observed Norfolk "hallucinating," "seeing things," or "hearing voices," Norfolk's counsel objected that the question called for a conclusion "[Quiroz] is not qualified to answer." The court overruled the objection and Quiroz answered, "No." Ogden was asked whether he was aware of Norfolk's having "hallucinations or delusions" or whether he had observed Norfolk "talking to himself at any time." Over Norfolk's objection that the witness was "not qualified to talk about hallucinations and delusions," the court allowed Ogden to give his answer, "No." Finally, the State called Dr. Blaine Roffman, a forensic pathologist, who had performed the Jones autopsy and who testified that Jones' body had incurred numerous "contusions and abrasions," some superficial "stab wounds or lacerations," and "hemorrhages in the posterior portion of the pharynx and in the superior portion of the trachea and around the vocal chords." Based upon such observations, Dr. Roffman concluded that Jones died as a result of "[a]sphyxiation secondary to [manual] strangulation."

To support his insanity defense Norfolk called two psychiatrists, Dr. David Kentsmith and Dr. Bruce Gutnik, both of whom testified that Norfolk was in a psychotic state at the time of the Jones homicide, unable to differentiate right from wrong and unable to control his actions. Dr. Gutnik, in particular, testified that "for at least a period of 24 to 36 hours in there, something was definitely very psychotic about this gentleman." To rebut testimony from Norfolk's psychiatrists, the State called Dr. Emmet Kenney, who expressed his opinion that Norfolk was able to distinguish right from wrong, was sane at the time of the homicide, and was "feigning" mental illness.

At the conclusion of all evidence, the district court found Norfolk guilty of first degree murder and, later, sentenced him to life imprisonment in the Nebraska Penal and Correctional Complex.

Norfolk claims three prejudicial errors occurred at trial: (1) The oral, nonrecorded custodial statement was improperly admitted into evidence; (2) The lay witness' testimony concerning Norfolk's "mental state" was improperly admitted as evidence; and (3) The evidence is insufficient as a matter of law to support a finding...