State v. Threet, 86-729
| Decision Date | 19 June 1987 |
| Docket Number | No. 86-729,86-729 |
| Citation | 407 N.W.2d 766,225 Neb. 682 |
| Parties | STATE of Nebraska, Appellee, v. Corelia THREET, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Jury Instructions. It is the duty of the trial court, upon the request of the accused, to instruct the jury on her theory
of the case if there is evidence to support it.
2. Jury Instructions. A tendered instruction, otherwise appropriate, which either misstates the law or tends to confuse or mislead the jury should not be given by the trial court.
3. Jury Instructions. Jury instructions must be read together, and if the instructions when taken as a whole correctly state the law, are not misleading, and adequately cover the issues, there is no prejudicial error in not reading the defendant's proposed instruction.
4. Trial: Appeal and Error. Error may not be predicated upon a ruling unless a substantial right of the party is affected.
5. Criminal Law: Juries: Discrimination: Proof. In a criminal case, a defendant may establish a prima facie showing of purposeful racial discrimination solely on evidence concerning the State's use of peremptory challenges.
6. Criminal Law: Juries: Discrimination: Proof. When prima facie showing of racial discrimination is established, the burden then shifts to the State to come forth with a neutral explanation for the peremptory challenge.
7. Evidence: Trial: Appeal and Error. It is within the trial court's discretion to admit or exclude evidence, and such rulings will not be disturbed on appeal absent a showing of abuse of that discretion.
8. Homicide: Photographs. In homicide cases, photographs of the victim may be received for purposes of identification, upon proper foundation. The fact that the photographs may present a gruesome spectacle does not prohibit their admission into evidence.
Richard M. Fellman, of Fellman Law Offices, Omaha, for appellant.
Robert M. Spire, Atty. Gen., and Lynne R. Fritz, Lincoln, for appellee.
Defendant, Corelia Threet, appeals her conviction in the district court for Douglas County of murder in the second degree and use of a firearm during the commission of a felony in connection with the February 2, 1986, shooting death of Steven W. Johnson. The defendant was sentenced to imprisonment in the Nebraska Center for Women for a period of 30 years on the conviction of second degree murder and not less than 5 nor more than 10 years on the conviction of use of a firearm during the commission of a felony. On appeal, the defendant alleges the trial court erred in failing to properly instruct the jury on accidental shooting, when evidence thereof was submitted, and in failing to rule on defendant's motion in limine in sufficient time to allow the defendant to present an orderly defense. The defendant further contends the court erred in failing to impanel a new jury after the State peremptorily challenged all black prospective jurors called to sit in the case, and in allowing into evidence an inflammatory and unnecessary photograph of the victim. Finally, the defendant contends the court committed reversible error in allowing the State to pursue improper redirect examination of a witness and in overruling defendant's objection concerning improper cross-examination of a defense witness. For the reasons hereafter stated, the judgment and sentence of the district court are affirmed.
There is little dispute concerning the events that led up to the actual shooting. Defendant admits to having shot the victim. The only issue at trial was whether the defendant had the requisite intent to kill, or whether the shooting was accidental as the defendant contends. The record shows that on February 2, 1986, the day of the shooting, the defendant and several friends decided to have a cookout. The day was unusually warm. The cookout took place at defendant's residence in Omaha, Nebraska. The defendant, with her boyfriend, Tony Williams, and his sister, Darlene Williams, went to the store to buy food and alcohol for the cookout. The defendant paid for the groceries as well as a rose given to her by Tony Williams. The group was joined at the defendant's home by the victim, Steven Johnson. Also present at the cookout were two other couples, Fred Moore and Margaret Watkins, and Carol and Janet Perkins.
At approximately 6 p.m., Carol and Janet Perkins left. Shortly thereafter, Fred Moore and Margaret Watkins left, after Moore borrowed the defendant's car to drive Watkins to work. The defendant, Tony Williams, Darlene Williams, and the victim remained at the cookout. The four then discussed going to a movie. It is at this point that the facts are in dispute. Tony Williams testified that an argument arose between himself and the defendant over the defendant's having loaned her car to Moore. The witness testified that the defendant went upstairs to change and when she came downstairs she began to yell at him to get out of the house. When the witness attempted to take the rose that he had earlier given to the defendant, the defendant slapped it, causing the vase to fall and break. Tony Williams testified that the victim grabbed him by the arm and took him outside to cool off, and as the two men were walking from the house Tony Williams heard a gunshot and saw the victim fall to the ground. When Williams turned toward the house, he saw the defendant standing in the doorway, holding a gun.
This testimony was corroborated by Darlene Williams, who testified she was present at the time of the shooting and that an argument took place between the defendant and Tony Williams. Darlene Williams further testified that as the victim and Tony Williams were leaving, she saw the defendant pull a gun from defendant's blouse, step out the back door, and fire the gun. Immediately after the shot, the defendant told Ms. Williams she had shot the victim and that Ms. Williams had better call for an ambulance.
Testifying on her own behalf, the defendant said that she did not want to go to the movies because she did not want to spend any more money. Defendant further testified that Tony Williams was angered by defendant's refusal to go to the movies, threw the flower to the ground, and left with the victim. The defendant testified that approximately 10 to 20 minutes after the two men left, she was watching television, when she heard a noise coming from the back which she presumed was someone trying to enter her house. Defendant stated she then went to the back door, took a gun from a drawer, and, while standing inside, fired a shot into the air to scare off whoever was in her yard. According to the defendant, she then heard the victim call out that he had been shot. The defendant then told Darlene Williams, who, according to the defendant's testimony, had been upstairs when the shooting took place, to call an ambulance.
Other witnesses for the State included Officer Chris Toledo of the Omaha Police Division, Omaha Police Sgt. Robert Schafer, and Dr. Clarence McWhorter, the pathologist who performed the autopsy. Officer Toledo testified that when he arrived at the scene, he entered the defendant's home and asked her what happened. The defendant responded, "I shot the m_____ f_____, I know I did but it was an accident." Dr. McWhorter testified the cause of death was exsanguinating hemorrhage, secondary to disruption of blood vessels and disruption of the bowel as a result of the gunshot wound. The bullet entered the victim's back just below the waistband of his pants. When asked if he could testify as to the angle of the flight of the bullet, Dr. McWhorter stated that the bullet traveled at a downward angle of approximately 15? . The witness further testified that the wound was consistent with that which would have been received if the person firing the gun was standing at a higher point than the victim.
At the close of the evidence, the matter was submitted to the jury. The jury returned a verdict of guilty on the charges of both murder in the second degree and use of a firearm during the commission of a felony.
The defendant first assigns as error the district court's failure to properly instruct the jury on accidental shooting, when evidence thereof was submitted to the court. In Nebraska, it is the duty of the trial court, upon the request of the accused, to instruct the jury on her theory of the case if there is evidence to support it. State v. Reeves, 216 Neb. 206, 344 N.W.2d 433 (1984). However, a tendered instruction, otherwise appropriate, which either misstates the law or tends to confuse or mislead the jury should not be given by the trial court. State v. Taylor, 221 Neb. 114, 375 N.W.2d 610 (1985); State v. Samuels, 205 Neb. 585, 289 N.W.2d 183 (1980). It is not error for the court to refuse to give the defendant's requested instruction when the substance of the requested instruction is covered by the instructions given. State v. Samuels, supra. In the case at bar the defendant offered an instruction which read in part, "[I]f you find the Defendant's shooting was accidental you should find the Defendant innocent." This instruction was refused. Instead, the court gave instruction No. 4, which explained the material elements the State needed to prove in order for the jury to find the defendant guilty of murder in the second degree or, as a lesser-included offense, manslaughter. Additionally, the court's instruction No. 8 defined murder in the second degree as causing the death of a person "intentionally, but without premeditation," and instruction No. 9...
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