State v. Price, 42048

• Decision Date: 06 February 1979
• Docket Number: No. 42048,42048
• Parties: STATE of Nebraska, Appellee, v. Ward PRICE, Appellant.
• Court: Nebraska Supreme Court

Page 82

275 N.W.2d 82

202 Neb. 308

STATE of Nebraska, Appellee, v. Ward PRICE, Appellant.

No. 42048.

Supreme Court of Nebraska.

Feb. 6, 1979.

Syllabus by the Court

1. An error in overruling a plea in abatement is cured if the evidence at trial is sufficient to permit the jury to find guilt beyond a reasonable doubt.

2. There is no right to appeal to this court from a decision binding the defendant over for trial after a preliminary hearing.

3. A magistrate is not required to set out specific findings of fact after a preliminary hearing.

4. The requirement of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), that a defendant be informed of his constitutional rights applies only to in-custody interrogations.

5. The right of a defendant to remain silent is not overcome by a mere recitation of Fifth Amendment rights; but that rule is not violated where the subsequent statements are clearly shown to have been made voluntarily.

6. The decision to allow endorsement of a new witness by the prosecutor is addressed to the sound discretion of the trial court.

7. Testimony presented by a prosecutor with a view toward subsequent impeachment does not come within the prohibition against the knowing use of perjured testimony.

8. Where the need for impeachment is small or nonexistent and the danger that the prior inconsistent statement will be considered substantively is great, the statement should be excluded.

9. Errors in rulings on the admissibility of evidence which do not injuriously affect the substantial rights of the accused are not grounds for reversal.

10. The foundational requirement of section 27-613, R.R.S.1943, that a witness to be impeached be given an opportunity to explain or deny an apparently inconsistent statement, may be met either before or after the introduction of the impeaching evidence.

11. Nebraska Jury Instruction No. 14.52A pertaining to Miranda rights need not be given even if requested by the defendant.

Daniel W. Ryberg, Omaha, for appellant.

Paul L. Douglas, Atty. Gen., and Jerold V. Fennell, Asst. Atty. Gen., Lincoln, for appellee.

Heard before SPENCER, C. J., Pro Tem., BOSLAUGH, McCOWN, CLINTON, BRODKEY, and WHITE, JJ., and RIST, District Judge.

C. THOMAS WHITE, Justice.

Defendant-appellant was charged with the murder of Tracie Tate, the daughter of defendant's wife Virginia.

The defendant was convicted by a jury of murder in the second degree and was sentenced to a term of life imprisonment in the Nebraska Penal and Correctional Complex. The defendant appeals and makes 13 assignments of error in this court. They generally relate to six separate categories: (1) The overruling of the plea in abatement challenging the sufficiency of the preliminary hearing; (2) the admission of five exculpatory statements made by the defendant; (3) the admission of a prior inconsistent statement of a witness and refusal of the trial court to permit the defendant to introduce evidence of a prior inconsistent statement of an impeaching witness; (4) error in refusal to dismiss the first degree murder charge or, in the alternative, to reduce the charge to second degree murder or manslaughter; (5) failure to give NJI No. 14.52A; and (6) claim that the sentence was excessive.

Tracie Lynne Tate was born on June 14, 1975, and was slightly over 2 years of age when she died on June 22, 1977. The defendant and the victim's mother, Virginia, lived at apartment 11, 4606 Redman Street, Omaha, Nebraska, on the third floor of a 21/2 story brick apartment building at that address. The apartment building consisted of a level of semibasement apartments, sometimes referred to as garden apartments, with 2 full stories above the level of the garden apartments. The apartment exited onto a wooden porch landing encompassed by an iron railing. The first flight of steps from the apartment down consisted of 13 wooden stairs onto a concrete landing and then a separate flight of wooden steps consisting of 7 or 8 stairs. The evidence most favorable to the State established that Tracie's mother, Virginia, left the apartment at approximately 4 p. m., on June 22, 1977, with an individual by the name of Lee Carter to go to her mother's apartment and from there proceeded to the area of 24th and Lake Streets in Omaha, Nebraska. When Virginia left her apartment, Tracie was sleeping and was left in the care of the defendant. Virginia had gone to 24th and Lake Streets to sell prescription drugs which she had obtained that day. At approximately 8 p. m., that evening, Virginia telephoned to her apartment and spoke to the defendant after Clifford Jones, a friend of the defendant and Virginia, met her on the street and told her that she was to go home or to call home. Virginia testified that during the telephone conversation the defendant informed her Tracie had fallen down some stairs, that she had blood on her feet, that he was going to give her a bath, and that Virginia should come home at 1 a. m. Virginia testified she was not worried about Tracie because: "* * * the way he was talking, it was like she just fell and wasn't hurt." At 2:30 a. m., Virginia again called home and was informed by the defendant that "he couldn't get Tracie awake." Virginia arrived home shortly thereafter and found the defendant giving mouth-to-mouth resuscitation to Tracie. The rescue squad of the Omaha fire department was summoned. Fire Captain Stolinski found Tracie lying on a bed, examined her for vital signs, found none, and then took her to Immanuel Medical Center. She was accompanied by Virginia and the defendant. Tracie was pronounced dead shortly after arrival at the hospital by Dr. Dean McGee, the physician on duty in the emergency room at Immanuel Medical Center. He testified that when he examined Tracie at 3:19 a. m., she had been dead for some 5 to 7 hours. Tracie had no clothes on at the time he examined her. Dr. McGee testified that Tracie had blood present in the left ear canal, extensive contusions or bruising of her head, a large hematoma or blood clot swelling in the back of the head in the occiput area; two discolored areas about the ankles on the dorsum or top side of the feet which appeared to him to be eschar or healing type of scabbing that occurs following a burn; and multiple puncture-type wounds on the soles of both feet, around the pubic or vaginal area, and scattered over the buttocks. Tracie's body was then taken to the Douglas County morgue where Dr. Blaine Roffman, a specialist in pathology, performed an autopsy. Externally, Dr. Roffman found a purplish discoloration and swelling of the entire forehead which extended bilaterally to and beyond both ears. He found the same type of discoloration around both parts of the external openings of the nose along with a great deal of swelling in both lips. There were tears in the mucosis side of the lower lip or the inside portion of the lower lip, and discoloration around both eye areas. He observed a small amount of blood in the left ear canal. Dr. Roffman also observed pink discolored areas on the tops of both feet showing sloughing of the superficial layer of skin which represented to him defects which are similar to second degree burns, a superficial abrasion on the right heel, and a 1-centimeter abrasion on the inner aspect of the left heel. The vaginal canal was bloody and there was a tear in the vaginal canal which measured 11 millimeters, or approximately 1/2 inch, and another tear in the left inner fold of the labia which is adjacent to the clitoris. The anal canal was also bloody and showed several small superficial tear lacerations. Dr. Roffman also observed many purplish pin-like marks on the buttocks, a slight scratch in the inner aspect of the right thigh, and little scratch abrasions on the left side of the neck. In the internal findings, Dr. Roffman's examination revealed hemorrhages on the right side of the thoracic cage at about the level of the eighth and ninth ribs. There was hemorrhage inside the muscle that surrounds these ribs. This, he observed, was superficial. He discovered the thymus gland, which is just underneath the chest cavity, showed some hemorrhage. An incision of the scalp was made and Dr. Roffman testified that the entire scalp was hemorrhagic and swollen showing a diverse pattern of recent hemorrhage. Hemorrhages were discovered in the right posterior occipital portion of the brain, i. e., the back lobe of the brain on the under surface, and on the left lateral lobe of the cerebellum. There was blood underneath the subarachnoid membrane which covers the brain proper.

No cuts were observed on the skull itself. Over objection, Dr. Roffman was asked: "* * * based on your examination, do you have an opinion as to whether or not the skull was hit more than one time? A. Yes. Q. And what is that opinion? * * * I think there had been some several blows to cause these types of injuries. * * * Q. Am I correct in saying that there were indications of blows all around the head? * * * A. There had to be multiple blows in various portions of the head to cause all that diffuse hemorrhage on the scalp, also in connection with the swelling and discolorations around the eyes and around the lips and lacerations of the lips could not have been sustained by one action. * * * The age and the appearance of these wounds would be consistent with them all occurring within a short period of time." Dr. Roffman further testified that the tears and wounds in the vaginal area were inflicted shortly preceding death and the puncture wounds in the vaginal and posterior region were of recent origin. The burn injuries on the feet were consistent with a pouring-type injury according to Dr. Roffman and not an immersion-type injury.

Dr. Roffman testified that the cause of death was cerebral edema and brain damage secondary to trauma to the head. "Q. Are the blows to the head, then, the primary cause? A. Yes." Dr. Roffman was then handed a photograph...