State v. Palmer

Citation210 Neb. 206,313 N.W.2d 648
Decision Date18 December 1981
Docket NumberNo. 43708,43708
PartiesSTATE of Nebraska, Appellee, v. Charles Jess PALMER, also known as Charles Tinsley, also known as J. R.Kirkpatrick, Appellant.
CourtSupreme Court of Nebraska

Syllabus by the Court

1. Arrest. The legality of an arrest is, within constitutional limits, governed by the law of the state where the arrest takes place.

2. Criminal Law: Hypnosis. Until hypnosis gains acceptance to the point where experts in the field widely share the view that memories are accurately improved without undue danger of distortion, delusion, or fantasy, a witness who has been previously questioned under hypnosis may not testify in a criminal proceeding concerning the subject matter adduced at the pretrial hypnotic interview. This holding does not exclude otherwise admissible evidence, leads to which were obtained during an hypnotic interview.

John A. Wolf and Jerry J. Milner, Grand Island, for appellant.

Paul L. Douglas, Atty. Gen., and J. Kirk Brown, Asst. Atty. Gen., Lincoln, for appellee.

Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE, and HASTINGS, JJ.

McCOWN, Justice.

The defendant was found guilty by a jury on a charge of murder in the perpetration of a robbery. Following a sentencing hearing, a three-judge panel imposed the death penalty.

Eugene Zimmerman operated a coin shop located on the first floor of his residence in Grand Island, Nebraska. On March 6, 1979, at approximately 5 p. m., Zimmerman's wife, Monica, returned to the house and discovered that the coin shop had been looted and her husband was missing from the shop. She called the police who arrived in 2 or 3 minutes. Eugene Zimmerman's body was found in an upstairs bedroom. He had been strangled with an electric cord. Cash, coins, jewelry, and other items were missing from the coin shop and from the residential portions of the house, including jewelry the victim had been wearing. The time of death was later established as approximately 4:30 p. m.

On March 22, 1979, Jesse Garza, a coin dealer in Austin, Texas, purchased a number of gold and silver coins and pieces of antique jewelry from a man who represented himself to be a visitor in Austin. On March 27, 1979, Garza read an article in a trade journal which reported Zimmerman's death, identified many of the articles which had been stolen, and requested coin dealers to be on the lookout for the stolen items. The items Garza had purchased on March 22nd appeared to be some of the items described in the article. He contacted the Austin, Texas, police department at approximately 2 p. m., reported his information, and was told to stall the person from whom he had purchased the items if he was contacted again. The police began an immediate investigation, interviewed Garza at his shop, verified the information, and returned to the police station at about 3:30 p. m.

Later in the afternoon of March 27th the man telephoned Garza seeking to sell more items, and he and Garza arranged to meet at the Austin airport. Garza again contacted the police at approximately 4:45 p. m., and the police accompanied him to the airport where the defendant was arrested at approximately 6 p. m. Various items in the defendant's possession at the airport were seized. Those items, as well as the items sold to Garza on March 22, 1979, were identified as having been taken from the Zimmerman house.

At trial Deanna Klintworth testified that at approximately 4:30 p. m. on March 6, 1979, as she and her husband drove past the Zimmerman house in Grand Island, Nebraska, she saw a tall man and a woman walking away from the house. The man was carrying a baby. She was unable to recall any further details.

Jim Mracek, the manager of a 7-Eleven store across the street from the Zimmerman residence, testified that on March 6, 1979, he saw Zimmerman in the Mracek store with a man, woman, and baby. Mracek testified that the man with Zimmerman was not the defendant. Initially he identified Cherie Palmer, the defendant's wife, as the woman, but later testified that he was unable to state that she was the woman he saw in his store on March 6, 1979. Zimmerman and the couple did not come into the store together. The couple drove a dark sedan with out-of-state plates.

Monica Zimmerman testified that the defendant, his wife, and baby had been at the Zimmerman house on several occasions prior to March 6, 1979, to transact business with Eugene Zimmerman. On these occasions either the defendant or his wife had sold coins or other objects to Zimmerman. The last time she saw the three at the Zimmerman house was on Friday evening, March 2, 1979, at which time Cherie Palmer was offering five gold rings for sale. Monica Zimmerman also identified a pickup truck driven by the defendant at the time of his visits to the Zimmerman residence. She also described the physical layout of the Zimmerman residence and the physical arrangements in the area used for the coin business. She described and identified the items missing from the Zimmerman home on the day of the murder, as well as the sequence of events leading to the discovery of her husband's body.

The State's evidence showed that a "C. Palmer" was issued an equipment violation ticket in the early afternoon of March 6, 1979, at a highway intersection 9 miles south of Hastings, Nebraska, at a State Patrol equipment check point. Neither a ticket nor a copy was produced and the trooper could neither identify anyone to whom he had issued a ticket nor state in which direction the vehicle was traveling. The intersection was at a point approximately halfway between Grand Island, Nebraska, and Guide Rock, Nebraska, where the defendant was living at the time.

The defendant and his wife had lived in Guide Rock, Nebraska, since August 1977. Their baby was born July 4, 1978. The defendant was employed at a dog farm in Guide Rock. The owners were vacationing in Florida during February and March of 1979, but conversed with the defendant periodically by telephone. The defendant called them the last time on March 18, 1979. On March 19, 1979, the defendant arranged with a neighbor to take care of the dogs and the defendant and his family left Guide Rock on March 19 or 20, 1979.

The defendant did not testify at the trial and the jury was appropriately instructed regarding that fact. The jury found the defendant guilty and a three-judge panel imposed a death sentence. This appeal followed.

Prior to trial the defendant filed a motion to suppress the items seized from the defendant's person at the time of his arrest. Defendant also filed a motion and amended motion in limine to suppress all testimony from Monica Zimmerman, Deanna Klintworth, and Jim Mracek upon the ground that their testimony was obtained by the State under hypnosis at a pretrial hypnotic interview. The trial court, after hearings, denied the motion to suppress evidence. The court also denied the motion to exclude the testimony of hypnotized witnesses, except that the court did exclude any testimony given while under hypnosis by the three witnesses. The District Court's rulings on those motions constituted the basic assignments of error on this appeal.

The defendant contends that his arrest in Texas without a warrant was unlawful under the law of Texas, and consequently the items seized from him at the time of his arrest are inadmissible. The State contends that Nebraska law applies to the arrest; that under Nebraska law the arrest was lawful; and that in any event the District Court was correct in holding that a valid warrantless arrest was made.

The District Court found that a valid warrantless arrest was made under the laws of Texas and the necessary exigent circumstances existed, and overruled the motion to suppress.

State v. Wilson, 199 Neb. 765, 261 N.W.2d 376 (1978), is dispositive of the issue as to whether the law of Texas or of Nebraska is to be applied to determine the validity of the arrest. That case held that the legality of an arrest is, within constitutional limits, governed by the law of the state where the arrest takes place. In the case now before us the statutory law of Texas was properly introduced into evidence and the substantive law of Texas was properly applied by the District Court.

The defendant does not dispute the fact that the Texas police officers had probable cause for the arrest by 3:30 p. m. on March 27, 1979, after they had interviewed Garza, examined and identified the items purchased by Garza from the defendant, and had verified additional information as to the murder of Zimmerman and the robbery in Grand Island, Nebraska, by telephone to the Grand Island Police Department. When Garza again telephoned the Texas police at approximately 4:30 p. m. and told them of the planned meeting with the defendant at the airport, they left the police station approximately 20 minutes later and accompanied Garza to the airport where the arrest followed. The defendant now contends that the police had ample time to obtain an arrest warrant and that none of the statutory exceptions to the requirement of a warrant applied.

Texas statutes dealing with an arrest without a warrant contain specific provisions authorizing warrantless arrests under certain circumstances. See, Tex.Code Crim.Proc.Ann. arts. 14.01 through 14.04 (Vernon 1977). Article 14.01 authorizes a peace officer to arrest an offender without a warrant for any offense committed in his presence or within his view. Article 14.04 provides that where it is shown by satisfactory proof to a peace officer, upon the representation of a credible person, that a felony has been committed, and that the offender is about to escape, so that there is no time to procure a warrant, such peace officer may, without warrant, pursue and arrest the accused.

Under the circumstances reflected by this record it is quite clear that the police officers had probable cause for arrest of the defendant but did not know...

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