State v. Phelps

• Decision Date: 16 October 1992
• Docket Number: No. S-91-577,S-91-577
• Citation: 241 Neb. 707,490 N.W.2d 676
• Parties: STATE of Nebraska, Appellee, v. David C. PHELPS, Appellant.
• Court: Nebraska Supreme Court

Page 676

490 N.W.2d 676

241 Neb. 707

STATE of Nebraska, Appellee, v.David C. PHELPS, Appellant.

No. S-91-577.

Supreme Court of Nebraska.

Oct. 16, 1992.

Syllabus by the Court

1.Constitutional Law: Confessions: Evidence.Voluntariness is imposed as a constitutional prerequisite to the receipt into evidence of confessions and admissions.

2.Confessions.The voluntariness of a statement is a question of fact to be determined by the trial court in light of all the surrounding circumstances.

3.Appeal and Error.In deciding whether a trial court's ruling on a question of fact is erroneous, an appellate court does not reweigh the evidence or resolve conflicts in the evidence, but, rather, recognizes the trial court as the finder of fact and takes into consideration that the trial court has observed the witnesses.

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

5.Rules of Evidence: Other Acts.Neb.Rev.Stat. § 27-404(2)(Reissue 1989) is an inclusionary rule permitting the use of relevant evidence of other crimes, wrongs, or acts for purposes other than to prove the character of a person in order to show that such person acted in conformity with that character.

6.Rules of Evidence: Other Acts.Neb.Rev.Stat. § 27-404(2)(Reissue 1989) permits evidence of other crimes, wrongs, or acts if such is relevant for a purpose other than to show a defendant's propensity or disposition to commit the crime charged.

7.Rules of Evidence: Other Acts.Neb.Rev.Stat. § 27-404(2)(Reissue 1989) permits the introduction of evidence of other crimes, wrongs, or acts for the purposes of showing such things as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

8.Rules of Evidence: Other Acts.Evidence admissible under the provisions of Neb.Rev.Stat. § 27-404(2)(Reissue 1989) is limited by Neb.Rev.Stat. § 27-403(Reissue 1989), which provides for the exclusion of relevant evidence if its probative value is substantially outweighed by the danger of, among other things, unfair prejudice.

9.Rules of Evidence: Other Acts: Time.The question of remoteness for the purposes of Neb.Rev.Stat. § 27-404(2)(Reissue 1989) is a matter within the discretion of the trial court.

10.Rules of Evidence: Other Acts: Time.Although remoteness in time may weaken the value of the evidence for the purposes of Neb.Rev.Stat. § 27-404(2)(Reissue 1989), such remoteness does not, in and of itself, necessarily justify exclusion of the evidence.

11.Rules of Evidence: Other Acts.For purposes of Neb.Rev.Stat. § 27-404(2)(Reissue 1989), it is sufficient that the evidence be of similar involvement reasonably related to the charged conduct and be presented in a manner in which prejudice does not outweigh its probative value.

12.Trial: Rules of Evidence.Balancing the probative value of evidence against the danger of unfair prejudice is within the discretion of the trial court.

13.Trial: Rules of Evidence.The primary consideration in determining whether probative evidence is to be excluded as unfairly prejudicial is whether the probative value of the evidence is outweighed by the danger of its unfair prejudice.

14.Rules of Evidence.For exclusion under the provisions of Neb.Rev.Stat. § 27-403(Reissue 1989), it is not enough that the evidence is merely prejudicial, for most, if not all, of the evidence a party offers is calculated to be prejudicial to the opposing party.

15.Rules of Evidence.To be unfairly prejudicial, evidence must have a tendency to suggest a decision on an improper basis.

16.Convictions: Appeal and Error.In determining the sufficiency of the evidence to support a finding of guilt in a criminal case, an appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, determine the plausibility of explanations, or weigh the evidence.Those matters are for the finder of fact, whose findings must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support them.

17.Criminal Law: Circumstantial Evidence: Evidence: Appeal and Error.In criminal cases, circumstantial evidence is to be treated the same as direct evidence, the State being entitled upon review to have all conflicting evidence, direct and circumstantial, viewed in its favor.

18.Convictions: Circumstantial Evidence: Proof.Circumstantial evidence is adequate to support a conviction if the evidence, taken as a whole, establishes guilt beyond a reasonable doubt.

19.Venue: Waiver: Proof.In the absence of a defendant's waiver, the State has the burden to prove proper venue beyond a reasonable doubt.

20.Venue: Juries: Due Process: Proof.Mere jury exposure to news accounts of a crime does not presumptively deprive a criminal defendant of due process; rather, to warrant a change of venue, a defendant must show the existence of pervasive misleading pretrial publicity.

21.Venue: Juries: Proof.In order for a defendant to successfully move for a change of venue based on pretrial publicity, he or she must show that the publicity has made it impossible to secure a fair and impartial jury.

22.Venue.A number of factors must be evaluated in determining whether publicity has made it impossible to secure a fair and impartial jury, including the nature of the publicity, the degree to which the publicity has circulated throughout the community, the degree to which the publicity circulated in areas to which venue could be changed, the length of time between the dissemination of the publicity complained of and the date of trial, the care exercised and ease encountered in the selection of the jury, the number of challenges exercised during the voir dire, the severity of the offenses charged, and the size of the area from which the venire was drawn.

23.Venue: Juror Qualifications.Voir dire examination provides the best opportunity to determine whether venue should be changed.

24.Juror Qualifications.A criminal defendant is not guaranteed a jury totally ignorant of the facts and circumstances of his or her case; it is sufficient if the juror can lay aside his or her impressions or opinion and render a verdict based on the evidence presented at trial.

25.Criminal Law: Pretrial Procedure.Discovery in a criminal case is, in the absence of a constitutional requirement, controlled by either a statute or court rule.

26.Pretrial Procedure: Appeal and Error.Unless granted as a matter of right under the Constitution or other law, discovery is within the discretion of the trial court, whose ruling will be upheld on appeal unless the trial court has abused its discretion in the discovery ruling.

27.Constitutional Law: Criminal Law: Due Process: Evidence.The U.S. Constitution requires the State to disclose exculpatory material to an accused.

28.Criminal Law: Due Process: Pretrial Procedure: Evidence.Suppression by the State of evidence favorable to and requested by an accused violates due process where the evidence is material to the guilt of the defendant.

29.Constitutional Law: Criminal Law: Pretrial Procedure: Evidence.The State is not under a constitutional duty to disclose all information that might affect a jury's verdict; rather, a prosecutor has a duty to disclose all material exculpatory evidence.

30.Constitutional Law: Criminal Law: Pretrial Procedure.There is no constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on a case.

David A. Domina and Denise E. Frost, of Domina & Copple, P.C., Norfolk, for appellant.

Don Stenberg, Atty. Gen., and Donald A. Kohtz, Lincoln, for appellee.

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

CAPORALE, Justice.

I.STATEMENT OF CASE

Defendant-appellant, David C. Phelps, was, pursuant to verdict, adjudged guilty of kidnapping in violation of Neb.Rev.Stat. § 28-313(Reissue 1989) and was sentenced to life imprisonment.As treated in his brief, the errors he assigns combine to assert that the district court mistakenly (1) received certain evidence, (2) concluded the evidence was sufficient to support the charge, (3) refused to change the venue, (4) overruled his challenge to the array, and (5) refused certain pretrial discovery.We affirm.

II.BACKGROUND

On August 13, 1987, 9-year-old Jill Cutshall disappeared; she has not been seen since.

She was a happy, mature, and intelligent child who was outgoing and athletic.She was on good terms with her father, mother, and stepmother and had not expressed any desire to run away.

Although the decree dissolving her biological parents' marriage granted her custody to the mother, at the time of her disappearance the child was living, by the parents' mutual agreement, with her father and stepmother at the McNeely Apartments in Norfolk, Madison County, Nebraska.The mother was at that time living at Great Bend, Kansas.

On the day of the child's disappearance, the father and stepmother left home at 6 o'clock in the morning.The stepmother noted that the child was then awake but still dressed in a nightshirt.The stepmother also noted that the child had laid out a purple shirt and a pair of blue jeans.Under a relatively new arrangement with the child's babysitter, the child was to leave the McNeely Apartments at approximately 8 a.m. and walk to the sitter's house, some 4 1/2 blocks away.If the sitter was not awake when the child arrived, she was to use a key left in the mailbox to let herself in.

The stepmother finished work at 3 o'clock in the afternoon and went directly to the sitter's house to pick up the child.It was then that the stepmother first learned that the child had not arrived at the sitter's house that day.The sitter thought that the child had merely stayed home with her father, as sh...