State v. West

• Decision Date: 20 June 1986
• Docket Number: No. 85-685,85-685
• Citation: 388 N.W.2d 823,223 Neb. 241
• Parties: STATE of Nebraska, Appellee, v. Ben WEST, Appellant.
• Court: Nebraska Supreme Court

Page 823

388 N.W.2d 823

223 Neb. 241

STATE of Nebraska, Appellee, v. Ben WEST, Appellant.

No. 85-685.

Supreme Court of Nebraska.

June 20, 1986.

Syllabus by the Court

1. Homicide: Intent. In a prosecution for first degree murder, the question of premeditation is for the jury to determine. No particular length of time for premeditation is required, provided that the intent to kill is formed before the act is committed and not simultaneously with the act that caused the death. The time needed for premeditation may be so short as to be instantaneous; the intent to kill may be formed at any moment before the homicide is committed.

2. Convictions: Appeal and Error. In determining the sufficiency of the evidence to sustain a conviction, it is not the province of this court to resolve conflicts in the evidence, pass on the credibility of witnesses, determine the plausibility of explanations, or weigh the evidence. Such matters are for the trier of fact, and a verdict made by the trier of fact must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support it.

3. Trial: Evidence: Motions to Dismiss: Appeal and Error. In a prosecution in which the State introduces competent evidence which, if believed by the jury, is sufficient to establish all elements of crimes charged against the defendant, denial of the defendant's motion to dismiss is without error.

4. Plea in Abatement: Verdicts: Appeal and Error. It is the general rule that any error by the district court in ruling on a plea in abatement is cured by a subsequent finding by the jury of guilt beyond a reasonable doubt.

5. Photographs. Where photographs help a jury to visualize the crime and view described events in the proper context, the mere fact that such photographs might present a gruesome spectacle does not prohibit their admission in evidence.

6. 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.

7. Arrests: Constitutional Law: Police Officers and Sheriffs. Generally, a nonconsensual, warrantless entry to arrest a person within his or her home is presumptively unreasonable and unconstitutional in the absence of exigent circumstances. Sufficient exigent circumstances may be established when a law enforcement officer has (1) probable cause to believe that a suspect has committed a serious offense, (2) a reasonable belief from a present factual basis that the suspect is in the premises to be entered, and (3) immediately upon concurrence of elements (1) and (2) (probable cause and reasonable belief), a factual basis to reasonably believe that, during the time which would be necessarily consumed in obtaining an arrest warrant under existing circumstances, there will be danger to the officer or another, evidence will be removed or destroyed, or the suspect will escape.

8. Police Officers and Sheriffs: Search and Seizure. An officer may seize evidence and contraband which is in "plain view" without a warrant if he or she has the right to be in the position where such officer has that view.

J. William Gallup, Omaha, for appellant.

Robert M. Spire, Atty. Gen., and Lynne R. Fritz, Lincoln, for appellee.

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

HASTINGS, Justice.

Ben West appeals his conviction by jury of two counts of first degree murder, for which he was sentenced to concurrent life imprisonment terms on each count.

West assigns as errors: (1) The denial of his plea in abatement; (2) The denial of his motion to dismiss; (3) The sufficiency of evidence to prove first degree murder; (4) The admission of photographs of the female victim at the scene of the crime and during autopsy; and (5) The admission of evidence found after the illegal arrest of West and during the illegal search of the crime scene.

Since the third assignment of error is largely dispositive of the first two assignments, we first address the sufficiency of the evidence to prove first degree murder. Although West admits killing Maryetta (Mary) Rost and Jack (Doug) Weaver, he denies that the crime was committed with premeditation, an element of first degree murder. The question of premeditation is for the jury to determine. No particular length of time for premeditation is required, provided that the intent to kill is formed before the act is committed and not simultaneously with the act that caused the death. The time needed for premeditation may be so short as to be instantaneous; the intent to kill may be formed at any moment before the homicide is committed. State v. Benzel, 220 Neb. 466, 370 N.W.2d 501 (1985).

A review of the record indicates that there was sufficient evidence of premeditation for the jury to find West guilty of first degree murder despite West's denial of premeditation. In determining the sufficiency of the evidence to sustain a conviction, it is not the province of this court to resolve conflicts in the evidence, pass on the credibility of witnesses, determine the plausibility of explanations, or weigh the evidence. Such matters are for the trier of fact, and a verdict made by the trier of fact must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support it. State v. Benzel, supra; State v. Sutton, 220 Neb. 128, 368 N.W.2d 492 (1985).

Not only did the State produce evidence of premeditation sufficient to sustain the conviction but it is apparent that certain conflicts between West's account of the incident and the physical evidence would have caused the jury to doubt West's credibility along with his denial of premeditation.

Competent evidence was admitted at trial to demonstrate the following facts: Ben West met Mary Rost in Estherville, Iowa, on June 29, 1984, while he was employed as an over-the-road truckdriver. When Rost moved to Omaha to attend nursing school, West found employment in Omaha and moved into an apartment with Rost on October 9. West spent Thanksgiving, November 22, at the home he maintained in Wahoo, while Rost entertained her ex-husband and two children overnight in Omaha for the holiday. After her guests left on Saturday, Rost attended a wedding in Wahoo and spent the night with West at his Wahoo home. The couple returned to their Omaha apartment separately on Sunday.

At 2:45 a.m. Monday, November 26, a neighbor in the apartment building saw Doug Weaver from Estherville, Iowa, in the hallway and heard him calling out softly to Rost. Rost answered the door, reentered the apartment, dressed, told West she was going to talk with Weaver, and, finally, left the building laughing, with Doug Weaver's arm around her. When West awoke at 4 a.m., Rost had not returned, and did not return before he left for work. West started to write a note to Rost but changed his mind. West worked from 6 a.m. to 2 p.m. and returned to the apartment.

Again, there was no one in the apartment when West arrived, but Rost had left a note: "Dear Ben, the clothes ... Doug will be going home this evening. I'll call you. Love, Mary." (Emphasis and ellipsis in original.) At trial West testified that he did not understand the "cryptic" note. However, a possible explanation of the note is suggested by the testimony of Rost's ex-husband that he searched the apartment for men's clothing on Friday, November 23, finding none; but when he returned to the apartment on November 27, after Rost's death, he found West's clothing in a dresser he had searched 4 days earlier. West denied having moved the clothes himself.

Jim Rost, the victim's former husband, also testified that he left some money in the apartment when he left with the children on Saturday morning. Mary found it later and called to thank him on Sunday morning. This may have been the money West referred to in the note he wrote in response:

Dear Mary,

No clothes. No Doug. Was he supposed to have been sleeping here, or something? I don't remember leaving $20.00 under your earing [sic] box.

(over)

I need to get to the courthouse in Wahoo, yet today.

Will be home here 5-6 p.m. Love Ben.

(Emphasis in original.) These two notes were found in the kitchen wastebasket on December 15.

West drove to his Wahoo home, which takes 30 to 45 minutes; picked up his mail at a neighbor's; and went to the courthouse to register a deed. Betty Patzloff, the Saunders County assessor, saw West at the courthouse "sometime after three o'clock," and the register of deeds noted on the document that it was filed at 4 p.m. on November 26, 1984.

West drove the 30- to 45-minute return trip to the Omaha apartment and, according to his testimony, had a conversation there with Rost concerning Doug Weaver, his fight with his wife, and some sausages that were spoiling in Rost's refrigerator. West testified further that he then left the apartment, went to the nearby Guns Unlimited to check a sale he had seen advertised in the Sunday newspaper, and shopped at ShopKo and Ace Hardware for a rubber mallet. West testified that it was only when he returned to the apartment for the night and found Rost and Weaver together that he had any idea that Rost was not alone. He had assumed that Weaver returned to Iowa earlier in the day.

However, the cash register receipt for the Winchester- Western .38 Special caliber "round nose" cartridges West purchased at Guns Unlimited showed that the transaction took place at 4:40 p.m., and a fellow resident of the apartment building, Steven Apfel, testified that he saw a tall man dressed in a green jacket in the Rost-West apartment at 5 p.m. when Apfel returned home from work. The green fatigue jacket West wore when he was arrested was admitted into evidence.

These time constraints and other evidence tend to show that the more likely course of events is that upon...