State v. Scott

• Citation: 200 Neb. 265,263 N.W.2d 659
• Decision Date: 08 March 1978
• Docket Number: No. 41462,41462
• Parties: STATE of Nebraska, Appellee, v. John A. SCOTT, Appellant.
• Court: Supreme Court of Nebraska

Page 659

263 N.W.2d 659

200 Neb. 265

STATE of Nebraska, Appellee, v. John A. SCOTT, Appellant.

No. 41462.

Supreme Court of Nebraska.

March 8, 1978.

Syllabus by the Court

1. When there are outbursts of emotion in the courtroom, it is within the sound discretion of the trial court to deal with them in such a manner as to best preserve the judicial atmosphere and insure a fair and impartial trial for the defendant.

2. A voluntary confession is insufficient, standing alone, to prove that a crime has been committed; but it is competent evidence of that fact and may, with slight corroboration, establish the corpus delicti as well as the defendant's guilty participation. Where the crime involves physical damage to a person or property, the prosecution must generally show that the injury for which the accused confesses responsibility did in fact occur, and that some person was criminally culpable. In such a case there need be no link, outside the confession, between the injury and the accused who admits having inflicted it.

3. Where the question of the voluntariness of an oral or written confession is at issue, the court must properly instruct the jury, whether requested or not, as to what constitutes a voluntary confession and to disregard the alleged confession if it is found to be involuntary. The same rule, however, does not apply to the question of whether the defendant was advised of, and waived, his Miranda rights, before being questioned by police officers.

Thomas M. Kenney, Douglas County Public Defender, Stanley A. Krieger, Asst. Public Defender, for appellant.

Paul L. Douglas, Atty. Gen., Terry R. Schaaf, Asst. Atty. Gen., Lincoln, for appellee.

Heard before WHITE, C. J., and SPENCER, BOSLAUGH, McCOWN, BRODKEY, and WHITE, JJ., and KUNS, Retired District Judge.

BRODKEY, Justice.

John Scott, defendant and appellant herein, was charged with murder in the perpetration of, or attempt to perpetrate, a robbery under section 28-401, R.R.S.1943; and with shooting with intent to kill, wound, or maim under section 28-410, R.R.S.1943. A jury found the defendant guilty as charged, and his motion for new trial was overruled. He has appealed from his convictions to this court, contending that the District Court erred in failing to grant his motions for a mistrial and a directed verdict, and in failing to instruct the jury properly with respect to the issue of whether he effectively waived his constitutional rights before making statements to police officers. We affirm the judgment of the District Court.

At approximately 5 p. m., on February 18, 1977, an intruder entered the home of William and Bertha McCormic in Omaha and demanded money at gunpoint. A scuffle ensued, and Mr. McCormic was shot twice and killed, and Mrs. McCormic was shot twice and wounded. Mr. McCormic was 92 years of age at the time. Mrs. McCormic, age 83, has impaired vision and could not describe her assailant with any specificity.

The only clue to the identity of the perpetrator was an unusual shoeprint left at the scene of the crime. Police detectives ascertained that only two shoe stores in Omaha sold a brand of shoes which would make such a print, and police officers were advised to look for persons wearing that distinctive type of shoe. On February 22, 1977, the defendant was arrested after a police officer discovered him wearing shoes which made prints similar to the one found at the scene of the crime.

The defendant was questioned twice on the night of February 22, 1977, and once on the morning of the following day. Before questioning the defendant on each occasion, police detectives advised the defendant of his right to remain silent and to have the assistance of an attorney as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The police officers testified that the defendant waived such rights, and rights advisory forms signed by the defendant were received in evidence. In the initial interrogation, the defendant denied that he had committed the crimes. In the second, however, he admitted his guilt, took officers to the scene of the crime, and showed them a vacant lot where he stated he had disposed of the murder weapon. The police officers were unable to find the weapon. The confession and admissions of the defendant were detailed, and included descriptions of the scene of the crime, which were corroborated by the physical evidence discovered by the police.

At trial, an expert witness testified that the shoeprint found at the scene of the crime matched the design and size of a print made by a shoe the defendant was wearing when arrested, and that defendant's shoe could have made the shoeprint. He could not make a positive identification, however, as he could not find a sufficient number of "individual characteristics" on defendant's shoe, which had been purchased about 2 months before the crime.

Other evidence relevant to defendant's guilt was that he was with his mother a short distance from the scene of the crime shortly before 5 p. m., on February 18, 1977. He left his mother at that time, and returned to his home between 5:30 and 6 on that day.

At trial the defendant repudiated his confession, stating that he confessed because the police threatened to charge him with several robberies if he did not confess to the shootings, and because he was frightened. The defendant admitted that he had been advised of his Miranda rights each time before the police questioned him, but stated he did not understand that he had the right to have a lawyer present at the interrogations if he desired. The rights advisory forms signed by the defendant and the testimony of police officers indicated that the defendant was specifically advised he had the right to have an attorney present during the questioning, and that a lawyer would be appointed if he could not afford to hire his own attorney.

Defendant's first contention is that the trial court erred in refusing to grant a mistrial because of prejudicial acts and statements of witnesses at the trial. When Mrs. McCormic left the witness stand she stumbled and began to weep because of an injury to her leg. Her granddaughter called for the assistance of a doctor at that time. Defendant moved for a mistrial on the ground that the incident was prejudicial to him because of the sympathy that the jury would have for Mrs. McCormic. The trial court overruled the motion, noting that the witness had shown no emotion during her testimony, and that her weeping was the result of her stumbling and hurting her leg, and was not related to her testimony in the case. The court admonished the jury to not consider the incident because it had no bearing on the guilt of the defendant.

It is apparent that the above incident was not ground for a mistrial. When there are outbursts of emotion in the courtroom, it is within the sound discretion of the trial court to deal with them in such a manner as to best preserve the judicial atmosphere and insure a fair and impartial trial for the defendant. Wamsley v. State, 171 Neb. 197, 106 N.W.2d 22 (1960). In the present case, the weeping of the witness was not related to her testimony at trial, and the trial court properly admonished the jury to disregard the incident because it had no bearing on the guilt of the defendant. The overruling of the motion for a mistrial was not error. Wamsley v. State, supra.

A second incident occurred when the prosecutor asked a police officer whether the defendant's shoes appeared to be in the same condition at trial as they were when taken from the defendant after his arrest. The police officer answered in the affirmative, except that there was "what appears to be blood on this shoe." The trial court overruled defendant's motion for a mistrial, and instructed the jury to disregard the statement concerning blood because there had been no showing that there was in fact blood on the shoe. An analogous incident occurred in State v. Escamilla, 187 Neb. 457, 191 N.W.2d 548 (1971), where a police officer made improper comments about items of evidence, and where the trial court sustained an objection to the comments and instructed the jury to disregard them. We found no prejudicial error, and stated that if there was error, it was harmless, and was cured by the court's action. The same may be said in the present case. Although the comment of the police officer was improper, it cannot be considered prejudicial error in view of the remedial action taken by the trial court.

Defendant next contends that the evidence was insufficient to sustain his conviction because his confession was not sufficiently corroborated by other evidence. The rule is that a voluntary confession is insufficient, standing alone, to prove that a crime has been committed, but that it is competent evidence of that fact and may, with slight corroboration, establish the corpus delicti as well as the defendant's guilty participation. See, State v. Moss, 182 Neb. 502, 155 N.W.2d 435 (1968); Gallegos v. State, 152 Neb. 831, 43 N.W.2d 1 (1950). Where the crime...