State v. Rife

• Decision Date: 05 August 1983
• Docket Number: No. 82-659,82-659
• Citation: 337 N.W.2d 724,215 Neb. 132
• Parties: STATE of Nebraska, Appellee, v. Kevin Isaac RIFE, Appellant.
• Court: Nebraska Supreme Court

Page 724

337 N.W.2d 724

215 Neb. 132

STATE of Nebraska, Appellee, v. Kevin Isaac RIFE, Appellant.

No. 82-659.

Supreme Court of Nebraska.

Aug. 5, 1983.

Syllabus by the Court

1. Confessions. To be admissible, a statement or confession must be free and voluntary. It must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence. The determination of whether a statement was voluntarily made necessarily turns on the consideration of the totality of the circumstances in any particular case.

2. Confessions: Appeal and Error. A finding of the trial court that a statement of an accused is voluntary will not ordinarily be set aside on appeal unless the finding is clearly erroneous.

3. Venue: Appeal and Error. A motion for a change of venue in a criminal case is addressed to the sound discretion of the trial court, and its ruling will not be disturbed on appeal unless a clear abuse of discretion is shown.

4. Juror Qualifications. The true object of challenges, either peremptory or for cause, is to enable the parties to avoid disqualified persons and secure an impartial jury. When that end is accomplished, there can be no just ground for complaint against the rulings of the court as to competency of the jurors.

5. Motions for Mistrial: Juror Qualifications. In the absence of a showing of prejudice, a trial court is correct in denying a motion for mistrial. Opportunity for prejudice or disqualification of jurors does not raise a presumption that prejudice or disqualification exists.

6. Video Tapes. Admission of video tapes is generally within the trial court's discretion, subject to the same requirements for admission of still photographs.

7. Homicide: Photographs. In a homicide case photographs of the victim, upon proper foundation, may be received in evidence for purposes of identification, to show the condition of the body, the nature and extent of the wounds and injuries, and to establish malice or intent.

8. Homicide: Photographs. A photograph which illustrates or makes clear some controverted issue in a homicide case may be received even if it is gruesome, where a proper foundation has been laid.

Richard J. Bruckner, Omaha, for appellant.

Paul L. Douglas, Atty. Gen., and Melvin K. Kammerlohr, Lincoln, for appellee.

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

WHITE, Justice.

This is an appeal from the District Court for Sarpy County, Nebraska, from a verdict of guilty to second degree murder and a sentence of 30 years. Appellant appeals and assigns that the trial court erred in (1) failing to sustain appellant's motion to suppress statements given by appellant to the Bellevue police; (2) failing to sustain appellant's motion for change of venue or continuance; (3) failing to grant a mistrial based upon jury misconduct during the trial; (4) failing to grant a mistrial based upon the introduction and viewing by the jury of a video tape of the murder scene; (5) allowing prejudicial and inflammatory photographs and testimony into evidence; and (6) failing to give appellant's requested instruction regarding Miranda warnings. We affirm. A statement of the facts is necessary.

On Saturday night, January 23, 1982, Lori Lappin and two friends attended a party in Bellevue, Nebraska, arriving home at 1 a.m. Edel Cook remained behind at the apartment she shared with Lori and went to work at the Crown Court restaurant, which was also in Bellevue, on Sunday morning, January 24, 1982. Lori left the apartment with her boyfriend, Mark Hensley, that day at 1:30 p.m. and did not return until 8 p.m. Upon opening the door they discovered the body of Edel Cook on the sofa against the north wall in the living room. There was a large amount of blood on the face of Edel and the north wall of the apartment. Edel's body was covered with a quilt which left uncovered her feet at one end and from the shoulders up at the other end. Edel's face did not have normal symmetry and had the appearance of being crushed from a severe beating. There was a deep laceration extending across her throat, and a serrated steak knife was found on the floor near the sofa. Around Edel's body were pieces of a ceramic vase and mug which had been broken. These pieces were lying next to and underneath Edel's body and also on the floor in front of the couch and by the hallway on the south side of the couch.

The shorts that Edel had been wearing at the time of her death had been cut in two at the crotch area and her panties had been partially pulled down, with blood smeared in the area of her thighs. The Bellevue police were called.

The police could find no visible signs of forced entry or attempted forced entry into the building, and the lock on the apartment door was in good working order. In a kitchen drawer the plastic divider that contained knives was stained with blood, as was one steak knife in the drawer. The bathroom sink and faucet were stained with blood.

During the ensuing police investigation, Kevin Isaac Rife, a friend of the deceased, was interviewed by Det. David Carlson of the Bellevue police at approximately 2:30 a.m. on Monday, January 25, 1982. The interview lasted 25 minutes and related to the fact that appellant worked with the victim at Crown Court and was living in the apartment building next door, and to the appellant's activities on the date of the homicide, Sunday, January 24, 1982. Appellant was not a suspect at the time the interview took place, and he told police that he was at his parents' home in Bellevue all day Sunday until 7 p.m.

On Wednesday, January 27, 1982, Detective Carlson and Officer Joseph Jeanette questioned appellant's parents, Mr. and Mrs. Carl Rife, in an attempt to verify appellant's whereabouts on the date of the murder. They ascertained that appellant had been at his parents' home until 3 p.m., when his mother dropped him off at his apartment.

At 9:15 a.m. on Thursday morning, January 28, 1982, Officer Jeanette and Det. Dick Warren went to appellant's apartment to discuss the discrepancy regarding appellant's whereabouts on Sunday, the day of the murder. The appellant stated that he was nervous and scared when police came over and he just told them that he was not at his apartment that day. The officers then read the appellant his rights per Miranda. The appellant consented to a search of his apartment, and the officers asked him if he would come to the police station at 1 p.m. so he could be fingerprinted and interviewed by Detective Carlson.

At approximately 1:15 p.m. on Thursday, January 28, 1982, the appellant met Detective Carlson at the Bellevue police station to be fingerprinted, which took roughly 20 minutes. Following the fingerprinting, Detective Carlson directed the appellant to an interview room, where he was again advised of his Miranda rights. Detective Carlson filled in the appellant's name, address, date of birth, highest grade of education, and that the interview was being conducted in connection with a homicide. The rights advisory form was handed to the appellant and he was asked to read the top portion that had been filled in. Detective Carlson testified that appellant appeared to read the top portion of the form and he then read to appellant each of his rights from a blank form and asked him to follow along on the filled-in form. Appellant was further directed to answer aloud after each question and mark his answer under each question in the space provided. The appellant acknowledged that he was aware of each of his rights and stated that he was willing to make a statement and waive the services of an attorney.

Detective Carlson confronted the appellant with several statements he had made that conflicted with information the Bellevue police had. The appellant was questioned for about 15 minutes. When asked, "Why are you telling all these lies?" the appellant responded, "Because I killed Edel." The questioning continued for 45 to 50 minutes to determine the details of the murder. The appellant stated he saw Edel's car outside and a light on in her apartment. He went in and Edel gave him some acid or speed, and he began to freak out. At this time Edel was on the couch and rolled over as if she were going to go to sleep. He became angry and hit Edel several times over the head with a vase, until it shattered. He then picked up a larger vase, and as he struck her again the second vase also broke. The appellant stated that he realized what he had done and that if Edel lived he would be in big trouble. He went into the kitchen to get a knife, took the knife out of the top drawer in the kitchen, and went back to Edel and cut her throat twice from left to right. He then went into the bathroom to wash the blood from his hands.

Detective Carlson obtained a tape cassette recorder upon which the appellant and he repeated basically the same conversation. Appellant was again read his Miranda rights. The tape-recorded statement was concluded at approximately 3:25 p.m. The appellant was asked to make a written statement pertaining to the crime, and to sign it. The appellant agreed. The appellant was furnished a meal and was then questioned again at 9:30 p.m. to clear up inconsistencies about the drugs he had taken and whether or not he had sexually assaulted Edel. The appellant was again given the Miranda warnings. In the 9:30 p.m. confession, which was taped, the appellant stated that he had not taken any drugs and that he had cut Edel's shorts with the knife, after her throat had been cut, and placed his middle finger in her vagina. Appellant did not at any time request an attorney or that the questioning stop. The appellant was charged with first degree murder, subsequently convicted of second degree murder, and sentenced to 30 years of hard labor.

We will discuss the assignments in order.

"To be admissible, a statement or confession must...