State v. Williams

• Decision Date: 18 December 1979
• Docket Number: No. 42235,42235
• Citation: 205 Neb. 56,287 N.W.2d 18
• Court: Nebraska Supreme Court
• Parties: STATE of Nebraska, Appellee, v. Robert E. WILLIAMS, Appellant.

Page 18

287 N.W.2d 18

205 Neb. 56

STATE of Nebraska, Appellee, v. Robert E. WILLIAMS, Appellant.

No. 42235.

Supreme Court of Nebraska.

Dec. 18, 1979.

Syllabus by the Court

1. Criminal Law: Trial: Evidence. Evidence which tends to show a course of conduct, scheme, or design is admissible to prove identity, although such evidence relates to other offenses.

2. Criminal Law: Trial: Evidence: Intent. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

3. Criminal Law: Trial: Evidence. Evidence of other criminal acts which involve or explain the circumstances of the crime charged, or are integral parts of an overall occurrence or transaction, may be admissible.

4. Criminal Law: Trial: Evidence: Homicide. If a photograph illustrates or makes clear some controverted issue in a homicide case, proper foundation having been laid, it may be received in evidence even if it is gruesome. The admission of photographs of a gruesome nature rests largely within the sound discretion of the trial court.

5. Criminal Law: Trial: Evidence: Homicide: Intent. 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.

6. Criminal Law: Venue: Judgments. A motion for a change of venue in a criminal case is addressed to the sound discretion of the trial court and its ruling will not be disturbed on appeal unless a clear abuse of discretion is shown.

7. Criminal Law: Trial: Evidence: Confessions. The admission in evidence of a statement or confession constitutes the trial court's independent determination that the statement was voluntarily made.

8. Criminal Law: Trial: Judgments: Confessions. A finding by the trial court that a statement of an accused is voluntary will not ordinarily be set aside on appeal unless the finding is clearly erroneous.

9. Criminal Law: Trial: Discovery. The mere possibility that an item of undisclosed information might have helped the defense or might have affected the outcome of the trial does not affect "materiality" in the constitutional sense.

10. Criminal Law: Trial: Discovery. In a criminal case the trial court is vested with broad discretion in considering discovery requests of defense counsel and error can be predicated only upon an abuse of such discretion.

11. Criminal Law: Juries: Instructions: Mental Health. It is not error to refuse to instruct a jury in a criminal case on the consequences of a verdict of not guilty by reason of insanity.

12. Criminal Law: Indictments and Informations: Evidence: Verdicts. It is only where there is a total failure of competent proof in a criminal case to support a material allegation in the information, or where the testimony adduced is of so weak or doubtful a character that a conviction based thereon could not be sustained, that the trial court will be justified in directing a verdict of not guilty.

13. Criminal Law: Statutes: Sentences: Words and Phrases: Death Penalty. In the context of Chapter 29, article 25, the word "sentence" in section 29-2521.03, R.S.Supp., 1978, is construed to mean a sentence of death, and the provisions of that section directing the determination by the Supreme Court of the propriety of a "sentence" by comparison with previous cases are applicable only in a case where a sentence of death has been imposed.

14. Criminal Law: Statutes: Supreme Court: Homicide: Time. Under L.B. 711, Laws of 1978, codified as part of Chapter 29, article 25, R.S.Supp., 1978, the Supreme Court will review and analyze only cases involving a conviction for first degree murder committed on or after April 20, 1973.

15. Criminal Law: Death Penalty: Supreme Court: Homicide. Where a death sentence has been imposed, and the Supreme Court is required to determine the propriety of that sentence in such case, the determination of which previous first degree murder cases involve the same or similar circumstances and are therefore comparable will be made by this court on a case-by-case basis.

Dennis R. Keefe, Lancaster County Public Defender, Thomas L. Hagel, and Richard L. Goos, Deputy Public Defenders, Lincoln, for appellant.

Paul L. Douglas, Atty. Gen., and Judy K. Hoffman, Asst. Atty. Gen., Lincoln, for appellee.

Heard before KRIVOSHA, C. J., BOSLAUGH, McCOWN, CLINTON, BRODKEY, and WHITE, JJ., and RIST, District Judge.

McCOWN, Justice.

Robert E. Williams pleaded not guilty by reason of insanity or mental derangement to two counts of murder in the first degree and one count of first degree sexual assault. He was found guilty by a jury on all three counts and sentenced to death on each of the two murder counts and to imprisonment for not less than 81/3 years nor more than 25 years on the sexual assault count.

In the late afternoon of August 11, 1977, the bodies of Patricia A. McGarry and Catherine M. Brooks were found in the McGarry apartment in Lincoln, Nebraska, after a search was instituted when neighbors found the 5-year-old daughter of Catherine Brooks wandering in the neighborhood looking for her mother.

The naked body of Catherine Brooks was found lying face down in the center of the living room floor. A pool of blood surrounded her head. There was a nonfatal bullet wound in her back and two bullet wounds behind her left ear. Later medical examination revealed spermatozoa in the vagina and in the rectal tract. The pathologist testified that the spermatozoa would have had to be deposited within an hour of her death.

The body of Patricia McGarry was lying in the dining room, face up, clad in a blue housecoat. She had also been shot three times, once under her right ear and twice in the neck. There was a bloody trail on the carpet from the living room into the dining room to the spot where Patricia's body lay.

The police found an empty beer bottle with latent fingerprints on a chair. Later examination established the fingerprints as those of the defendant. The police also found a full box of .22 caliber long rifle shells on the coffee table in the living room and another unfired .22 caliber shell on the sofa. The casing of a .22 caliber shell was found on the floor of the living room. There was a bullet hole in the wall between the living and dining rooms, and a spent bullet was found in the entryway between the two rooms. Later investigation established that on August 10, 1977, at approximately 7:15 p. m., a model K-22 Smith & Wesson .22 caliber revolver and five boxes of .22 caliber long rifle shells were purchased by the defendant at a store in Lincoln.

Evidence at trial established that on August 11, 1977, at approximately 9:30 a. m., the defendant appeared at the apartment of another young woman in Lincoln, Nebraska. She had been acquainted with the defendant for approximately 6 months and he had been a babysitter for her 2-year-old daughter on occasion. The defendant told the woman that his car was broken down and asked to use her telephone. She admitted him and he then told her he needed to stay in her apartment for a while. She suggested that he stay in the storage room area of the apartment complex instead. The defendant then drew a revolver and demanded that she have sexual relations with him. She tried to lock herself in the bathroom but the defendant forced the door open and broke off the lock. He struck her in the chest and on the side of the head with the gun and threatened to blow her head off, and then raped her. The defendant remained in the apartment for several hours and raped the woman repeatedly.

At approximately 4 p. m., the defendant ordered the woman to bring her 2-year-old child and go to his car with him. As they approached the curb he told her she was free to go. She immediately went to a neighbor's home and called the police.

The woman testified that during the time the defendant had been with her, he drank one beer and smoked a joint of marijuana but appeared normal and did not appear to be intoxicated. Other witnesses who had been with the defendant on August 10, and one as late as 1:30 a. m., on August 11, 1977, testified that on those occasions the defendant The evidence at trial established that defendant left the woman's apartment in Lincoln about 4 p. m., August 11, 1977, and about an hour later was seen at a service station in Fremont, Nebraska, some 50 miles away, where he stopped and purchased gasoline. The station attendant testified that the defendant's speech and coordination appeared to be normal, although he smelled alcohol on the defendant's breath.

appeared normal in speech and actions and did not appear to be intoxicated, although he had been drinking.

At approximately 10:15 p. m., on August 11, 1977, a deputy sheriff observed and checked the defendant's car at a park and rest area in Cherokee County, Iowa, and checked it periodically thereafter through the night. At 6:15 a. m., the deputy had the car towed away. Upon examination of the car, the deputies discovered a packaging box for a Smith & Wesson K-22 revolver; a box of .22 caliber long rifle cartridges from which six cartridges had been removed; a bag of marijuana; and some gas cans with negroid hairs on them.

Shortly after 6 a. m., on August 12, 1977, Mrs. Jack Montgomery, who lived 11/2 miles west of the park and rest area in which defendant's car had been found, discovered that her car was missing from the garage. There was a blanket in the car and another blanket was also missing. She also found a checkbook with the name of the defendant imprinted on the checks lying in the driveway in front of the garage. At approximately 10 o'clock the same morning the Montgomery car...