State v. Robinson

• Decision Date: 09 January 1970
• Docket Number: No. 37348,37348
• Citation: 173 N.W.2d 443,185 Neb. 64
• Parties: STATE of Nebraska, Appellee, v. Enoch ROBINSON, Appellant.
• Court: Nebraska Supreme Court

Page 443

173 N.W.2d 443

185 Neb. 64

STATE of Nebraska, Appellee, v. Enoch ROBINSON, Appellant.

No. 37348.

Supreme Court of Nebraska.

Jan. 9, 1970.

Syllabus by the Court

1. The question of the admissibility of photographs of a gruesome nature rests largely in the discretion of the trial court.

2. The test is whether the evidence is relevant and in determining relevancy, the court is to weigh and balance the probative value of the picture as against its possible prejudicial effect.

3. A photograph moved to be a true representation of the person, place, or thing which it purports to represent is ordinarily proper evidence of anything of which it is competent and relevant for a witness to give a verbal description.

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

5. Safeguards prescribed by the United States Supreme Court decision of Miranda v. State of Arizona are applicable only in instances of 'custodial interrogation' which is questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.

Mark J. Ryan, South Sioux City, for appellant.

Clarence A. H. Meyer, Atty. Gen., Melvin K. Kammerlohr, Asst. Atty. Gen., Lincoln, for appellee.

Heard before WHITE, C.J., and CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN and NEWTON, JJ.

NEWTON, Justice.

The defendant Enoch Robinson appeals from his conviction of murder in the first degree in the district court for Thurston County, Nebraska. In accordance with the finding of the jury, he was sentenced to imprisonment for life. We affirm the judgment and sentence of the trial court.

The defendant, the deceased, and several of the witnesses are Omaha Indians. All of the Indians involved were residents of or staying temporarily in the vicinity of Macy, Thurston County, Nebraska. They were drinking, primarily beer, throughout the afternoon and evening of Sunday, January 12, 1969. The deceased Norman Grant was a physically strong man, about 5 feet 9 inches in height, weighing in excess of 200 pounds, and 32 years of age, but his left arm had been amputated above the elbow. His party ran out of beer and several of them drove to Homer, Nebraska, to replenish their supply. As Norman Grant entered a Homer tavern about 4 or 4:30 p.m., he was accosted by the defendant who had a knife in his sleeve and placed it against Norman's neck informing Norman that: '* * * he had a knife to his neck.' Norman knocked the defendant's arm up and then knocked him down. Defendant was ejected. A short time later Norman Grant's brother Donald was assaulted by defendant outside the tavern. In the struggle, defendant dropped the knife which was picked up by another member of the party and left with the bartender.

Later that night, at approximately 1 a.m. on January 13, 1969, Norman Grant and another brother Mathew Grant left the home of friends in Macy and walked toward their own home in that village. They were overtaken by the defendant and a sister of the defendant. Defendant asked them: '* * * if we wanted to settle it now.' He had an object in his hand and swung at Mathew Grant who backed away. He then went after Norman who kept backing away for a considerable distance but was steadily pursued by defendant. In the meantime, defendant's sister struck Mathew with a club of some nature, inflicting a cut on his scalp. Mathew ran away but returned when defendant and his sister left the scene. He found Norman injured and bleeding; and helped him walk to the house of an acquaintance who was aroused and conveyed them to the hospital at Winnebago, Nebraska. There a nurse examined Norman, found he was dead, and called a doctor who verified that fact. The doctor also sutured Mathew's scalp wound.

The county sheriff was called. After viewing the body and talking with the doctor and Mathew Grant, he met an investigating officer of the Nebraska State Patrol at the hospital and they proceeded to Macy. On arriving at Macy about 4 a.m., they checked the scene of the crime and found numerous blood stains in the snow and a bloodstained knife blade broken in three parts.

On the afternoon of January 13, 1969, defendant went to the home of a teacher in a local churchschool and asked to use the phone saying: 'My name is Enoch Robinson and I want to turn myself in, I want to call the police.' The teacher then called for the sheriff. Defendant remained there until the arrival of the sheriff. While waiting, defendant was asked by the teacher what had happened. Defendant said: '* * * he had been in a fight, he guessed he had used a knife * * *.'

Defendant testified in his own behalf. He indicated he was drunk and his memory very hazy about events occurring on January 12 and 13, 1969, but denied having injured Norman Grant.

An autopsy was performed on the body of Norman Grant. The examining physician found lacerations of the right ear and cheekbone, the chin, and below the left eye. He also found stab wounds below the sternal notch, below the breastbone, and on the left side of the neck above the clavicle. The neck wound which was 3 inches in depth appears in photographs to have been at least 1 inch in length. He indicated the wounds were made with a pointed, narrow instrument such as a screwdriver or sharp paring knife. He also found that the left carotid artery and the left jugular vein had been severed as a result of the wound in the neck. Death was caused by bleeding from the neck wound.

Two colored photographs of the blood covered face, head, and torso of deceased and one full length photograph were received without objection. One full length colored picture taken after the body had been washed was also admitted without objection. Defendant objected strenuously to the admission of a colored photograph taken during the course of the autopsy. Part of the flesh over the left chest, shoulder, and neck had been folded back and a forceps inserted through the wound in the neck to show its size and location. The picture was admitted as exhibit 13.

Defendant assigns the admission of exhibit 13 as prejudicial error. The question of the admissibility of photographs in evidence rests largely in the discretion of the trial court. See 23 C.J.S. Criminal Law § 852(1), p. 345. A photograph proved to be a true representation of the person, place, or thing which it purports to represent is ordinarily proper evidence of anything of which it is competent and relevant for a witness to give a verbal description. Davis v. State, 171 Neb. 333, 106 N.W.2d 490. For many years the courts of this country have held that evidence of a gruesome nature and which may tend to inflame the passions of jurors should be excluded unless it has some probative value which outweights its possible prejudicial effect. See State v. Morris, 245 La. 175, 157 So.2d 728. Such evidence is generally admitted for purposes of identification to show the condition of a body and to indicate the nature and extent of wounds or injuries. See Reizenstein v. State, 165...