State v. Record, 40965
| Decision Date | 25 May 1977 |
| Docket Number | No. 40965,40965 |
| Parties | STATE of Nebraska, Appellee, v. Robert RECORD, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Photographs, although of a gruesome nature, are admissible in evidence if they are relevant and a true representation of what they purport to show.
2. In criminal cases, where there is sufficient evidence to justify the verdict, the verdict will not be set aside unless clearly wrong.
Thomas M. Kenney, Douglas County Public Defender, Stanley A. Krieger, Asst. Public Defender, Omaha, for appellant.
Paul L. Douglas, Atty. Gen., Ralph H. Gillan, Asst. Atty. Gen., Lincoln, for appellee.
Heard before WHITE, C. J., and SPENCER, BOSLAUGH, McCOWN, CLINTON, BRODKEY, and WHITE, JJ.
The defendant was tried and convicted in the District Court on a charge of first degree murder. The defendant was found guilty by a jury and sentenced to a term of life imprisonment. The defendant appeals.
The defendant asserts two assignments of error: (1) The District Court committed reversible error in admitting into evidence photographs of the deceased; and (2) the evidence was insufficient as a matter of law to prove the elements of first degree murder. We shall take the propositions in order.
The photographs, taken before the autopsy, show the victim's head. The victim's head had been partially shaved and the exhibits show the bullet wound over the left eye and stitches from a previous operation. The defendant does not seriously contest the relevancy of the exhibits, merely alleges that they are gruesome. The exhibits are unquestionably relevant. They support a version of the incident given by an eyewitness. The exhibits clearly reflect that the bullet entered over the left eye, a direction consistent with the direction from which the fatal shot was fired. In State v. Wilbur, 186 Neb. 306, 182 N.W.2d 906, this court said: "Photographs, although of a gruesome nature, are admissible in evidence if they are relevant and a true representation of what they purport to represent." See, also, State v. Stewart, 197 Neb. 497, 250 N.W.2d 849. The pictures show the victim in the same state in which he was found immediately after the crime. Unless we were to state that in all cases a picture of a victim would be prejudicial and therefore inadmissible, which we are not prepared to do, the photographs are both relevant and clearly admissible and outweigh any possible prejudice to the rights of the defendant. The assignment is without merit.
Until 10:45 p.m. on the evening of October 11, 1975, the defendant was riding around in the city of Omaha in one Domalakes' car. Two girl companions were taken to their homes; and two other girls were met at a gas station and rode with Domalakes and the defendant around the Cathedral area in Omaha. They met another girl who entered the car. The second two girls left the car and the defendant, Domalakes, and the other girl, a Chris Christiansen, resumed their riding. During this time the defendant told Miss Christiansen that he intended to rob someone that night. Miss Christiansen so testified at trial. Miss Christiansen asked to be taken home and was. Domalakes, who was granted immunity, testified that after taking Miss Christiansen home, Domalakes drove to approximately 180th and Dodge Streets in Omaha and parked on a side road waiting for someone to drive by so the defendant could shoot and rob him. About approximately 3 a.m. a car driven by the victim passed their parked car proceeding east on Dodge Street. With...
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