State v. Reeves, 81-706

• Decision Date: 20 January 1984
• Docket Number: No. 81-706,81-706
• Citation: 344 N.W.2d 433,216 Neb. 206
• Parties: STATE of Nebraska, Appellee, v. Randolph K. REEVES, Appellant.
• Court: Nebraska Supreme Court

Page 433

344 N.W.2d 433

216 Neb. 206

STATE of Nebraska, Appellee, v. Randolph K. REEVES, Appellant.

No. 81-706.

Supreme Court of Nebraska.

Jan. 20, 1984.

Syllabus by the Court

1. Prosecuting Attorneys. As a general rule a prosecutor should withdraw from a case when he testifies at trial on behalf of the State. This general rule does not apply when the defense calls the prosecutor as a witness.

2. Prosecuting Attorneys. A prosecutor need not be disqualified from trying a case absent a showing that he is or will become a necessary witness for the defense.

3. Criminal Law: Evidence: Witnesses: Prosecuting Attorneys. Where there are other viable methods available to the defendant for the introduction of evidence, the court should not allow defendant's counsel to raise the possibility of calling the prosecutor as a witness merely to disqualify the prosecutor from the trial of the case.

4. Homicide: Intent. No specific intention is required to constitute felony murder, other than the intent to do the act which constitutes the felony during which the killing occurred.

5. Homicide: Lesser-Included Offenses: Jury Instructions. Where an information charges a defendant with a killing committed in the perpetration of or attempt to perpetrate one of the specific felonies set out in Neb.Rev.Stat. § 28-303(2) (Reissue 1979), second degree murder and manslaughter are not lesser-included offenses, and it is ordinarily error for the trial court to instruct the jury that it may find the defendant guilty of second degree murder or manslaughter, even though such an instruction is requested.

6. Jury Instructions. It is the duty of the court upon request of the accused to instruct the jury upon any valid defense which the evidence supports. The court is not required to give instructions where there is not sufficient evidence to prove the facts claimed.

7. Jury Instructions. All jury instructions must be read together, and if the instructions taken as a whole correctly state the law, are not misleading, and adequately cover the issues, there is no prejudicial error.

8. Jury Instructions. It is not error to refuse to instruct a jury in a criminal case of the consequences of a verdict of not guilty by reason of insanity.

9. Prosecutorial Misconduct. Whether misconduct on the part of a prosecuting attorney is prejudicial to the defendant depends largely upon the facts of each particular case.

10. Trial: Juries: Appeal and Error. The trial judge is in the best position to measure the atmosphere at trial and gauge the probable impact an improper comment has on a jury. As such, the trial court's determination concerning the comment will not be overruled unless it is clearly erroneous.

11. Prosecuting Attorneys: Juries: Motions for Mistrial. Remarks of the prosecutor in final summation which do not mislead and unduly influence the jury do not rise to a level sufficient to require the granting of defendant's motion for mistrial.

12. Juror Qualifications. The trial court did not err in allowing the questioning of jurors as to whether their scruples against the death penalty would prevent them from returning a verdict of guilty regardless of the evidence, even though the jury was not to impose punishment and even though defendant contended that the questioning led to a conviction-prone jury.

13. Juror Qualifications. A juror who has indicated an inability to fairly and impartially determine guilt may be excused for cause.

14. Sentences: Presentence Reports. Pursuant to Neb.Rev.Stat. § 29-2521 (Reissue 1979), the sentencing court has broad discretion as to the source and type of evidence or information which may be used as assistance in determining the kind and extent of the punishment to be imposed. The sentencing court may consider a presentence investigation.

15. Sentences: Presentence Reports: Constitutional Law. By the very nature of a presentence investigation, it is necessary to rely to a great extent upon hearsay information, and it is not constitutionally required that the person convicted be allowed to confront all those who might give information to be used by the sentencing court.

16. Statutes: Sentences. Neb.Rev.Stat. § 29-2522(3) (Reissue 1979) does not impose the duty on the sentencing court to expressly distinguish every case cited by the defendant.

17. Death Penalty: Sentences: Constitutional Law. Jury sentencing in capital cases is not constitutionally required.

18. Statutes: Aggravating and Mitigating Circumstances: Constitutional Law. Neb.Rev.Stat. § 29-2523(1)(d) (Reissue 1979), as interpreted by the decisions of this court, is not unconstitutionally vague.

19. Statutes: Aggravating and Mitigating Circumstances. Neb.Rev.Stat. § 29-2523(1)(d) (Reissue 1979) has been interpreted by this court to include murders involving torture, sadism, sexual abuse, or the imposition of extreme suffering.

20. Statutes: Aggravating and Mitigating Circumstances: Proof. The facts relied upon to prove the aggravating circumstances of Neb.Rev.Stat. § 29-2523(1) (Reissue 1979) must be proven beyond a reasonable doubt.

21. Statutes: Death Sentences: Supreme Court. Under the provisions of Neb.Rev.Stat. §§ 29-2519 et seq. (Reissue 1979), the Nebraska Supreme Court is required, before imposing the death sentence, to not only consider the presence or absence of aggravating and mitigating circumstances but also to review death sentences and determine whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.

22. Homicide: Supreme Court. The Supreme Court's review and analysis under Neb.Rev.Stat. § 29-2521.03 (Reissue 1979) shall include all first degree murder convictions for offenses committed on or after April 20, 1973, including cases presently pending in this court on appeal.

23. Death Penalty: Supreme Court. This court's review and analysis of death penalty cases is not confined to a mere counting process of aggravating and mitigating circumstances but, rather, to a reasoned judgment as to what factual situations require the imposition of death and which of those can be satisfied by life imprisonment in light of the totality of the circumstances present.

Dennis R. Keefe, Lancaster County Public Defender, and Richard L. Goos, Chief Deputy Public Defender, Lincoln, for appellant.

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

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

PER CURIAM.

Randolph K. Reeves pled not guilty and not guilty by reason of insanity to each of two counts of felony murder in the commission or attempted commission of a first degree sexual assault. The jury found him guilty on both counts, and a three-judge panel sentenced him to death on each of the two murder counts. He appeals.

A statement of the facts is necessary. At 3:46 a.m. on March 29, 1980, Janet L. Mesner made a 911 emergency call and reported that she had been stabbed, that she thought a friend was dead from stab wounds, and that her address was 3319 South 46th Street, Lincoln, Nebraska. This address was a Religious Society of Friends meetinghouse, a place in which those of the Quaker religious faith meet. Since 1977, Janet Mesner had been a live-in caretaker of the premises. Victoria L. Lamm and her 2-year-old daughter were visitors.

Lincoln police officer Steven R. Imes responded to the call and, upon his arrival, found Janet Mesner lying on the floor in the rear of the house and attended by two or three firemen. She had seven stab wounds to her chest. When Officer Imes asked who had stabbed her, Janet replied, "Randy Reeves." The officer asked if there was anyone else still in the residence. Janet replied, "My friend, I think she's dead, and a little girl."

Officer Imes then went upstairs and found the partially clad body of Victoria Lamm lying face up in the south bedroom. There was a fatal stab wound in her chest, which penetrated the main pulmonary artery of the heart, and a stab wound in her midline, which pierced the liver.

The disordered condition of the room in which Victoria's body was found indicated that a violent struggle had taken place. The floor was covered with blood, and several articles of women's bedclothes, a piece of luggage, and papers were strewn about the room. A lamp and sewing machine were overturned, and the telephone was ripped from its wall socket. A billfold containing identification of the defendant was found near Victoria Lamm's foot. In the middle of the blood-soaked sheets on the bed, underwear, later identified as belonging to the defendant, was found. Later examination of the underwear revealed the presence of spermatozoal secretions of the defendant's blood type. Next to the bed was one of the defendant's socks. A serrated kitchen knife with Janet Mesner's blood on it was found near the bed.

When Officer Imes was investigating the bedroom, Victoria's 2-year-old daughter walked from the north upstairs bedroom. She was unharmed.

On the main floor the police found an open window in a small room adjoining the kitchen. On the outside of the house below the open window was a garbage can turned upside down. Next to the garbage can were two shoe prints in the mud; inside the house was a shoeprint in the downstairs den--all of which had the same characteristics as the shoes the defendant was wearing at the time of his arrest.

Janet Mesner was taken to Lincoln General Hospital in Lincoln where she was attended to by Drs. Chester Paul and Denise Capek. When Dr. Paul first saw Janet, she was in shock and emergency medical procedures were being undertaken.

Officer Richard J. Lutz, who had been dispatched to the emergency room, was present when Janet arrived. Janet told the officer that she had been "raped and stabbed" by Randy Reeves, and she gave his description. Janet did not know how Randy gained entrance to the residence, but she...