State v. Reynolds

• Citation: 235 Neb. 662,457 N.W.2d 405
• Decision Date: 29 June 1990
• Docket Number: No. 88-816,88-816
• Parties: STATE of Nebraska, Appellant and Cross-Appellee, v. Terry REYNOLDS, Appellee and Cross-Appellant.
• Court: Supreme Court of Nebraska

Page 405

457 N.W.2d 405

235 Neb. 662

STATE of Nebraska, Appellant and Cross-Appellee, v. Terry REYNOLDS, Appellee and Cross-Appellant.

No. 88-816.

Supreme Court of Nebraska.

June 29, 1990.

Syllabus by the Court

1. Trial: Rules of Evidence: Expert Witnesses. Neb.Evid.R. 704, Neb.Rev.Stat. § 27-704 (Reissue 1989), does not render all expert testimony admissible.

2. Trial: Rules of Evidence: Expert Witnesses. In determining whether an expert's testimony is admissible pursuant to the Nebraska Evidence Rules, a court considers four preliminary and interrelated questions: (1) Does the witness qualify as an expert pursuant to Neb.Evid.R. 702? (2) Is the expert's testimony relevant? (3) Will the expert's testimony assist the trier of fact to understand the evidence or determine a controverted factual issue? (4) Should the expert's testimony, even though relevant and admissible, be excluded in light of Neb.Evid.R. 403?

3. Trial: Rules of Evidence: Expert Witnesses. Whether a witness is qualified to testify as an expert under Neb.Evid.R. 702 is a preliminary question of admissibility for a trial court under Neb.Evid.R. 104(1), Neb.Rev.Stat. § 27-104(1) (Reissue 1989).

4. Trial: Rules of Evidence: Expert Witnesses: Appeal and Error. A trial court's factual finding pursuant to Neb.Evid.R. 104(1) concerning a determination whether a witness qualifies as an expert under Neb.Evid.R. 702 will be upheld on appeal unless the trial court's finding is clearly erroneous.

5. Trial: Rules of Evidence: Expert Witnesses. Under the test or standard enunciated in Frye v. United States, 293 F. 1013 (D.C.Cir.1923), reliability for admissibility of an expert's testimony, including an opinion, which is based on a scientific principle or is based on a technique or process which utilizes or applies a scientific principle, depends on general acceptance of the principle, technique, or process in the relevant scientific community.

6. Trial: Rules of Evidence: Expert Witnesses. If an expert's testimony lacks probative value, the testimony is irrelevant and is inadmissible.

7. Trial: Rules of Evidence: Expert Witnesses. If a witness is qualified as an expert pursuant to Neb.Evid.R. 702, a court considering admissibility of the expert's testimony, which may include an opinion, must decide whether the testimony is likely to assist the trier of fact to understand the evidence or determine a factual issue.

8. Trial: Rules of Evidence: Expert Witnesses. Under Neb.Evid.R. 704, the test is not whether the expert's opinion or inference invades the province of the jury, but whether the opinion or inference is otherwise admissible and, in accordance with Neb.Evid.R. 702, will "assist the trier of fact" to understand the evidence or determine a fact in issue.

9. Trial: Rules of Evidence: Expert Witnesses. An expert's testimony, although relevant, may be excluded under Neb.Evid.R. 403 if the probative value of the testimony is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or needless presentation of cumulative evidence.

10. Trial: Rules of Evidence: Expert Witnesses: Appeal and Error. The determination whether an expert's testimony or opinion will be helpful to a jury or assist the trier of fact in accordance with Neb.Evid.R. 702 involves the discretion of a trial court, whose ruling on admissibility of an expert's testimony or opinion will be upheld on appeal unless the trial court abused its discretion.

11. Trial: Rules of Evidence: Expert Witnesses. Under the standard of helpfulness required by Neb.Evid.R. 702, a court may exclude an expert's opinion which is nothing more than an expression of how the trier of fact should decide a case or what result should be reached on any issue to be resolved by the trier of fact.

12. Trial: Rules of Evidence: Expert Witnesses. When an expert's opinion on a disputed issue is a conclusion which may be deduced equally as well by the trier of fact with sufficient evidence on the issue, the expert's opinion is superfluous and does not assist the trier in understanding the evidence or determining a factual issue.

13. Jury Instructions: Proof: Appeal and Error. To establish reversible error from a court's refusal to give a requested instruction, an appellant has the burden to show that (1) the tendered instruction is a correct statement of the law; (2) the tendered instruction is warranted by the evidence; and (3) the appellant was prejudiced by the court's refusal to give the tendered instruction.

14. Criminal Law: Intoxication: Intent. A defendant's condition of intoxication, otherwise called the defense of intoxication, may negative a subjective or mental element necessary for commission of the crime.

15. Sentences: Appeal and Error. When the State, pursuant to Neb.Rev.Stat. § 29-2320 (Reissue 1989), appeals and claims that a sentence imposed on a defendant is excessively lenient, the standard of review is whether the sentencing court abused its discretion in the sentence imposed.

Michael G. Heavican, Lancaster County Atty., Thomas S. Jaudzemis, Lincoln, Robert M. Spire, Atty. Gen., and Sharon M. Lindgren, for appellant and cross-appellee.

Dennis R. Keefe, Lancaster County Public Defender, and Michael D. Gooch, Omaha, for appellee and cross-appellant.

HASTINGS, C.J., WHITE, CAPORALE, SHANAHAN, and GRANT, JJ., and RONIN and COLWELL, District Judges, Retired.

SHANAHAN, Justice.

A jury in the district court for Lancaster County found Terry Reynolds guilty of murder in the first degree and using a firearm to commit a felony. Neb.Rev.Stat. § 28-303(1) (Reissue 1989) states that a person commits murder in the first degree if he or she kills another person "purposely and with deliberate and premeditated malice...." Neb.Rev.Stat. § 28-1205(1) (Reissue 1989) provides that any person who uses a firearm to commit any felony which may be prosecuted in a Nebraska court commits the offense of using a firearm to commit a felony. A three-judge panel, authorized by Neb.Rev.Stat. § 29-2520 (Reissue 1989), sentenced Reynolds to life imprisonment for his murder conviction. The judge who presided at Reynolds' jury trial sentenced Reynolds to 20 years' imprisonment on the firearm conviction, which sentence is to be served consecutively to the life sentence.

The State has appealed and claims that the sentences imposed on Reynolds are excessively lenient. See Neb.Rev.Stat. § 29-2320 (Reissue 1989) (prosecutor's appeal of defendant's sentence). In his cross-appeal, Reynolds contends that reversible error occurred in the exclusion of certain evidence from two psychiatrists called to

testify for Reynolds, in the refusal of Reynolds' tendered instruction on intoxication, and due to the insufficiency of evidence for the murder conviction.

BACKGROUND FOR THE FATALITY

"Quarters" and Quarrels.

After the evening of Friday the 13th, March 1987, had been spent in moving furnishings from the apartment of Grace and Robert Garner in Hickman, Nebraska, the movers, namely, Terry Reynolds and his wife, Hazel "Hassie" Reynolds, Tina Walker, and the Garners, adjourned around 11 p.m. to "drink a beer" in the Reynolds apartment, which was located in the same building as the Garner apartment. Sometime after midnight, the group of movers obtained a case of beer and decided to play "quarters," a game in which participants attempt to flip a coin into a glass of beer. The participant who is successful in that effort then selects another player to drink the beer from the glass containing the coin.

All participants in the quarters contest drank beer, but Terry Reynolds and Tina Walker were also "taking shots" of whiskey. At the commencement of the quarters event, all players were "friendly and getting along real well." The atmosphere changed when Terry Reynolds and Tina Walker began "flirting" with each other. When Hassie Reynolds took Terry Reynolds aside and chided him about his flirting with Walker, he responded that "maybe I will get the orgy that I always wanted."

After 3 hours of quarters, the game halted. As Terry Reynolds went into the bathroom, Hassie Reynolds followed and again expressed her displeasure over Terry Reynolds' flirting with Tina Walker. When the Reynolds argument waned, Hassie Reynolds emerged from the bathroom and encountered Tina Walker. Terry Reynolds, emerging from the bathroom in pursuit of Hassie, seized his wife by the throat, dragged her into the children's adjoining bedroom, struck her "a number of times in the face," and pulled several clumps of hair from her head. Grace Garner entered the children's bedroom and attempted to stop Terry Reynolds from further injuring Hassie, but Terry Reynolds countered by shoving Grace to the floor. After Robert Garner intervened and the fracas had subsided, Hassie Reynolds assured the Garners that she was all right. Tina Walker, meanwhile, had left the apartment. Terry Reynolds apologized for his conduct, and the Garners left the Reynolds apartment.

After Garners' departure, Hassie and Terry Reynolds went to their bedroom, where Terry demanded that Hassie sexually satisfy him. On Hassie's refusal, Terry Reynolds repeatedly struck her and grabbed her hair "hard enough to pull [her] hair out." Terry Reynolds told Hassie that if she "didn't sexually satisfy him that he would leave and that [she would know] where he was going." Hassie replied that she did not care where Terry went so long as he left her alone. Terry Reynolds responded by inflicting additional physical abuse on Hassie, tearing the phone from the wall, and walking out of the apartment. Reynolds, who had acted as a drug informant for law enforcement, always kept a loaded ".38 revolver" in his apartment and, in his words, "I didn't go anywhere without my gun." As he was leaving the apartment, Terry Reynolds met Garners, again apologized to Grace Garner, said Hassie was "fine," and gave Grace Garner permission to check on Hassie's condition. Terry...