State v. White

• Decision Date: 19 November 1993
• Docket Number: No. S-92-937,S-92-937
• Citation: 244 Neb. 577,508 N.W.2d 554
• Parties: STATE of Nebraska, Appellee, v. Calvin J. WHITE, Appellant.
• Court: Nebraska Supreme Court

Page 554

508 N.W.2d 554

244 Neb. 577

STATE of Nebraska, Appellee, v. Calvin J. WHITE, Appellant.

No. S-92-937.

Supreme Court of Nebraska.

Nov. 19, 1993.

Syllabus by the Court

1. Jury Instructions: Appeal and Error. All the jury instructions must be read together, and if taken as a whole, they correctly state the law, are not misleading, and adequately cover the issues supported by the pleadings and the evidence, there is no prejudicial error necessitating a reversal.

2. Motions to Suppress: Appeal and Error. In determining the correctness of a trial court's ruling on a motion to suppress, an appellate court will uphold the trial court's factual findings unless those findings are clearly erroneous.

3. Judgments: Appeal and Error. When deciding questions of law, this court is obligated to reach conclusions independent of those reached by the trial court.

4. Constitutional Law: Right to Counsel: Self-Incrimination. There is no violation of a defendant's Sixth Amendment right to counsel when the defendant makes incriminating statements which were not deliberately elicited by the government.

5. Venue: Appeal and Error. A trial court's ruling on a motion for change of venue will not be disturbed absent an abuse of discretion.

6. Venue: Appeal and Error. A trial court abuses its discretion in denying a motion to change venue where a defendant establishes that local conditions and pretrial publicity make it impossible to secure a fair trial.

7. Constitutional Law: Statutes: Proof. The party claiming a statute is unconstitutional has the burden to show and clearly demonstrate that the questioned statute is unconstitutional.

8. Appeal and Error. Absent plain error, assignments of error not discussed in the briefs will not be addressed by this court.

9. Rules of Evidence. Admissibility of evidence is controlled by the Nebraska Evidence Rules, not judicial discretion, except in those instances under the Nebraska Evidence Rules when judicial discretion is a factor involved in admissibility of evidence.

10. Rules of Evidence: Other Acts. Evidence of other crimes or acts may be admitted where the evidence is so related in time, place, and circumstances to the offense charged as to have substantial probative value in determining the accused's guilt of the offense in question.

11. Trial: Evidence: Other Acts: Appeal and Error. It is within the discretion of the trial court to determine admissibility of evidence of other wrongs or acts, and the trial court's decision will not be reversed absent abuse of that discretion.

12. Trial: Photographs. The admission of photographs of a gruesome nature rests largely within the discretion of the trial court, which must determine their relevancy and weigh their probative value against their possible prejudicial effect.

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

14. Lesser-Included Offenses. To constitute a lesser-included offense, the elements of the lesser offense must be such that it is impossible to commit the greater without at the same time having committed the lesser.

15. Lesser-Included Offenses. In determining whether a lesser offense is indeed a lesser-included one, a court initially does not look to the evidence in a particular case, but, rather, as the name of the statutory-elements rule implies, looks only to the elements of the criminal offense.

16. Lesser-Included Offenses: Jury Instructions: Evidence. A court must instruct on a lesser-included offense if (1) the elements of the lesser offense for which an instruction is requested are such that one cannot commit the greater offense without simultaneously committing the lesser offense and (2) the evidence produces a rational basis for acquitting the defendant of the greater offense and convicting the defendant of the lesser offense.

17. Lesser-Included Offenses: Theft: Motor Vehicles. Unauthorized use of a propelled vehicle is not a lesser-included offense of theft by unlawful taking or disposition.

18. Lesser-Included Offenses: Jury Instructions. The trial court may instruct a jury, over a defendant's objection, on any lesser-included offenses supported by the evidence and the pleadings.

19. Jury Instructions: Self-Defense: Proof. Once the jury has been instructed that the State has the burden of proving the defendant did not act in self-defense, it is unnecessary to instruct the jury that the defendant does not have the burden to prove he did not act in self-defense.

20. Verdicts: Appeal and Error. A verdict in a criminal case must be sustained if the evidence, viewed and construed most favorably to the State, is sufficient to support that verdict.

21. Verdicts: Appeal and Error. An appellate court will not set aside a guilty verdict in a criminal case where such verdict is supported by relevant evidence; only where evidence lacks sufficient probative force as a matter of law may an appellate court set aside a guilty verdict as unsupported by evidence beyond a reasonable doubt.

22. Jury Misconduct: Presumptions: Proof. In a criminal case, misconduct involving an improper communication between a nonjuror and a juror gives rise to a rebuttable presumption of prejudice which the State has the burden to overcome.

23. Motions for Mistrial. A mistrial is properly declared when an event occurs during the course of a trial which is of such a nature that its damaging effects cannot be removed by proper admonition or instruction to the jury and would thus result in preventing a fair trial.

24. Motions for Mistrial: Appeal and Error. Whether to grant a mistrial is a matter within the discretion of the trial court, whose ruling regarding a mistrial will be upheld unless such ruling constitutes an abuse of discretion.

25. Prior Convictions: Right to Counsel: Waiver: Proof: Presumptions. In a sentence enhancement proceeding, the State need only show that at the time of the prior conviction the defendant had, or waived, counsel. A final judgment of conviction offered for purposes of sentence enhancement is presumed to have been validly obtained. That is, once a final judgment of conviction has been proven, that the defendant knowingly, intelligently, and understandingly waived his privilege against compulsory self-incrimination, his right to trial by jury, and his right to confront his accusers at the time he entered his guilty plea is presumed.

Joseph H. Murray, Lance J. Johnson, Hebron, and Gregory C. Damman, Lincoln, for appellant.

Don Stenberg, Atty. Gen., and Barry Waid, Lincoln, for appellee.

HASTINGS, C.J., BOSLAUGH, WHITE, CAPORALE, FAHRNBRUCH, and LANPHIER, JJ., and MORAN, District Judge, Retired.

LANPHIER, Justice.

Defendant, Calvin J. White, was charged with killing Patricia Cool by firing a shotgun into her multiple times. Cool was to shelter defendant's girl friend from him following a breakup. He was also charged with theft of an auto, which he allegedly did in an attempt to flee. Defendant was convicted, following a jury trial in the district court for Fillmore County, of second degree murder, use of a firearm to commit murder, and theft of an auto. Defendant asserts 14 assignments of error.

BACKGROUND

On December 26, 1991, defendant and his girl friend, Penny Ward, argued. The next day, defendant went to visit her. She told defendant to leave, which he did, but he later returned and took a gun barrel out of a closet. Penny Ward called her friend Patricia Cool, the victim, after he left. Penny Ward asked if she could spend a couple of days with Cool. Cool arranged to pick Penny Ward up at Wilma Ward's house. Cool arrived in a pickup truck with her mother, Mona Thole. Cool went inside to help Penny Ward get her children ready to leave. Thole waited in the pickup truck. Defendant arrived, approached the pickup, and tried to open the driver's side door, but it was locked. Defendant then went up to the house. As defendant walked from the truck to the house, Thole saw that he had a shotgun. She started to honk the horn to warn Cool and Penny Ward.

Hearing the horn, Cool went to the front door and started to open it. Apparently seeing defendant, Cool made an exclamation and started to shut the door. Penny Ward then heard a gunshot and saw Cool move back from the door. Penny Ward also saw defendant enter the house and fire a second shot. From the truck, Thole saw defendant raise the gun and shoot it toward the front door. Thole saw him raise the gun and fire again. After the second shot, Thole drove to get help from some police officers whose patrol cars she recalled seeing.

After the second shot, Penny Ward stood in front of defendant to try to protect the others in the home: Cool; Penny Ward's son Wayne; and Wilma Ward's daughter, Candice. Cool was slouched on the floor wounded when defendant fired a third shot. Penny Ward testified that she thought she was on top of Cool at this point trying to protect her by attempting to push the gun barrel away. Penny Ward testified that after the third shot, defendant swung the gun around toward her son and may have said something like "choose." Penny Ward then ran over and tackled her son to protect him. Just after she tackled her son, she heard a fourth shot. Defendant left.

Defendant took a 1992 Oldsmobile and drove to Texas. He then decided to return to Nebraska. When defendant was driving north through McPherson County, Kansas, a deputy sheriff spotted him. Defendant was arrested after he drove into a ditch while being chased by the deputy. The deputy transported defendant to the McPherson County jail after reading him his Miranda rights.

In the McPherson County jail, defendant was placed two cells down from Jason Thomas, an inmate trustee. Thomas offered defendant a cigarette, and defendant began...