State v. White
| Decision Date | 22 November 1991 |
| Docket Number | No. 90-241,90-241 |
| Citation | 477 N.W.2d 24,239 Neb. 554 |
| Parties | STATE of Nebraska, Appellee, v. Joseph Edgar WHITE, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Homicide: Intent. Under Neb.Rev.Stat. § 28-303 (Reissue 1989), one may commit first degree murder either by committing premeditated murder or by killing another person while in the commission of certain felonies.
2. Homicide: Convictions. A defendant need not be charged and convicted of an underlying felony in order to be convicted of first degree murder pursuant to Neb.Rev.Stat. § 28-303(2) (Reissue 1989).
3. Homicide: Limitations of Actions. The 3-year statute of limitations generally applicable to felonies does not apply to the crime of first degree murder.
Toney J. Redman, Lincoln, for appellant.
Don Stenberg, Atty. Gen., and Elaine A. Chapman, Lincoln, for appellee.
The defendant, Joseph Edgar White, was convicted by a jury of first degree felony murder in the death of 68-year-old Helen Wilson on February 5, 1985. He was sentenced to life imprisonment and has appealed to this court, contending the district court erred in failing to dismiss the charge because prosecution for the underlying felonies (robbery and sexual assault) was barred by the statute of limitations.
The record shows that on the night of February 5, 1985, White, James Dean, Thomas Winslow, Ada JoAnn Taylor, and Debra Shelden forcibly entered the victim's apartment in Beatrice for the purpose of robbing her. A sixth accomplice, Kathy Gonzalez, entered the apartment during the course of the robbery. The record shows that White participated in at least four planning sessions concerning this incident. During those discussions, White proposed sexually assaulting Mrs. Wilson as well as robbing her.
Most of the details of the Wilson homicide are set out in State v. Dean, 237 Neb. 65, 464 N.W.2d 782 (1991). Specifically, Mrs. Wilson was forced into her bedroom and was threatened and physically abused when she refused to tell the intruders where she kept her money. She was then forced back to the living room, screaming and kicking, and either tripped or was pushed to the floor. At this point, White and Winslow took turns sexually assaulting Mrs. Wilson. According to Taylor, White had vaginal intercourse with the victim, saying that she "deserved it," while Winslow held the victim's legs. Winslow then sodomized the victim while White held her down. Meanwhile, Taylor suffocated Mrs. Wilson with a pillow.
Mrs. Wilson did not move after she was raped, and appeared to be either dead or near death. The intruders proceeded to search the apartment for money. Taylor went into the kitchen and made some coffee for White and Winslow. Dean testified that after they left the apartment building, there was a general conversation between Taylor and White White, Taylor, Winslow, and Dean then went to a truckstop and had breakfast.
When Mrs. Wilson's body was found the next morning by her brother-in-law, she had a complete fracture through the lower part of the left humerus, fractured ribs, a fractured sternum, a 2-centimeter vaginal tear, and numerous bruises, abrasions, and scratches. Her hands were loosely tied with a towel, and a scarf was tightly wrapped around her head and tied.
On March 14, 1989, the Gage County Attorney filed a complaint against White, charging that on February 6, 1985, in Gage County, Nebraska, White did "kill Helen L. Wilson in the perpetration or attempt to perpetrate a sexual assault in the first degree." White was arrested pursuant to a warrant on March 16, 1989, near Cullman, Alabama, and was returned to Nebraska for trial. On April 4, 1989, an amended complaint was filed, charging that White, on or about February 6, 1985, in Gage County, Nebraska, did "kill Helen Wilson in the perpetration of or attempt to perpetrate any sexual assault in the first degree, robbery, kidnapping or burglary."
On May 17, 1989, the defendant moved to dismiss the amended complaint "for the reason that the felony murder charge requires conviction of the felony and the prosecution of the felonies are [sic] all barred under § 29-110 which requires that the complaint be filed within three years of the offense." The motion was denied on June 19, 1989. During White's arraignment in district court on July 3, 1989, the State was given leave to strike the word "kidnapping" from the information instanter.
The sole question presented in this appeal is whether the running of the 3-year statute of limitations on an underlying felony bars a prosecution for first degree felony murder pursuant to Neb.Rev.Stat. § 28-303(2) (Reissue 1989).
Section 28-303 provides that a person commits murder in the first degree if he kills another person "(1) purposely and...
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