State v. Williams

• Decision Date: 14 February 1992
• Docket Number: No. 90-525,90-525
• Citation: 239 Neb. 985,480 N.W.2d 390
• Parties: STATE of Nebraska, Appellee, v. Jimmie Lee WILLIAMS, Appellant.
• Court: Nebraska Supreme Court

Page 390

480 N.W.2d 390

239 Neb. 985

STATE of Nebraska, Appellee, v. Jimmie Lee WILLIAMS, Appellant.

No. 90-525.

Supreme Court of Nebraska.

Feb. 14, 1992.

Syllabus by the Court

1. Convictions: Appeal and Error. In determining the sufficiency of the evidence to support a finding of guilt in a criminal case, an appellate court does not resolve conflicts in the evidence, determine the plausibility of explanations, or weigh the evidence. Those matters are for the finder of fact, whose findings must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support them.

2. Verdicts: Appeal and Error. On a claim of insufficiency of the evidence, a guilty verdict will not be set aside in a criminal case where such verdict is supported by relevant evidence. Only where evidence lacks sufficient probative force as 3. Criminal Law: Witnesses: Marriage: Waiver. During the existence of the marriage, a husband and wife can in no criminal case be a witness against the other. This privilege may be waived only with the consent of both spouses. These privileges may not be claimed in any criminal case where the crime charged is a crime of violence.

a matter of law may a guilty verdict be set aside as unsupported by evidence beyond a reasonable doubt.

4. Criminal Law: Words and Phrases. The phrase "crime of violence" is not vague in the context of Neb.Rev.Stat. § 27-505 (Reissue 1989).

5. Due Process: Trial: Juries. Due process under the 14th amendment requires that the accused receive a trial by an impartial jury free from outside influences. In any individual case, the observance of this guarantee is evaluated in light of the totality of the circumstances of the case.

6. Juror Qualifications. A qualified juror need not be totally ignorant of the facts and issues involved. A venireperson is qualified to sit on the jury, even when he or she has previous knowledge of the case, if that juror can lay aside his or her impression or opinion and render a verdict based on the evidence presented in court.

7. Presumptions: Jurors. Although adverse pretrial publicity can create a presumption of prejudice in a community such that the jurors' claims that they can be impartial should not be believed, partiality may be presumed only in situations where the general atmosphere in the community or courtroom is sufficiently inflammatory.

8. Presumptions: Jurors. A jury's extrajudicial knowledge that a codefendant has pleaded guilty is not in and of itself grounds to presume juror prejudice.

9. Criminal Law: Venue. Venue in a criminal case can be transferred on the defendant's motion where it shall appear to the court that a fair and impartial trial cannot be had in the county in which the crime was committed.

10. Venue. The factors to be considered in determining whether a change of venue is required due to pretrial publicity include the nature of the publicity, the degree to which the publicity has circulated in the areas to which venue could be changed, the length of time between the dissemination of the publicity complained of and the date of trial, the care exercised and ease encountered in selection of the jury, the number of challenges exercised during voir dire, the severity of the offenses charged, and the size of the area from which the venire is drawn.

11. 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.

12. Trial: Waiver: Juries. Failure to insist on a ruling on an objection waives the objection. Logic dictates that the same principle would apply to a failure to insist on a ruling on a challenge for cause.

13. Trial: Joinder: Juries: Indictments and Informations. Where two or more offenses are properly joined, a trial court does not err in limiting the defendant to the number of peremptory challenges statutorily available for the most serious of the offenses. A defendant is not entitled to additional peremptory challenges because the indictment charges separate offenses in separate counts.

14. Jury Instructions: Appeal and Error. In considering claimed error regarding an instruction, all instructions given 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.

James A. Wagoner, Grand Island, for appellant.

Don Stenberg, Atty. Gen., Mark D. Starr, and, on brief, Susan M. Ugai, Lincoln, for appellee.

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

HASTINGS, Chief Justice.

Following a trial by jury the defendant, Jimmie Lee Williams, was convicted of the April 22, 1989, first degree murder of Richard Dale Kinikin, as well as a second count of use of a weapon to commit a felony. He was sentenced to a term of life imprisonment, as well as a consecutive term of 6 1/2 to 20 years on the second count. Defendant has appealed to this court, assigning 17 alleged errors, which may be combined to constitute the following: (1) insufficiency of the evidence, (2) testimony of defendant's spouse in violation of spousal immunity, (3) failure to grant defendant's request for change of venue, (4) failure to sustain defendant's challenge for cause of a juror, (5) failure to grant defendant six extra peremptory challenges, (6) errors in the admission of evidence, (7) error in giving an instruction regarding self-defense, and (8) error in considering victim impact information during the sentencing phase of trial. We affirm.

Although the testimony of the various witnesses is contradictory to some degree, there appears to be no reasonable doubt that defendant deliberately and with premeditation shot and killed Kinikin.

Defendant was proceeding westerly on Interstate 80 in his tractor-trailer unit, which was then being driven by his wife. He got into a conversation over his CB radio with another truckdriver, which was described as degenerating into a "cuss fight." Defendant testified that the voice on the other radio stated, "I got a mind to make you put that big old blue freight shaker [truck] in the ditch." He also testified that he, the defendant, said, "I got a good mind to have my wife just come on, go around you and you can take your garbage mouth somewhere else." The other driver, or the other voice on the CB, was said to have stated, "You come on up here and if you are still sitting there in that seat ... I'll blow a hole in you."

Defendant then testified that he got his rifle from behind the seat and said over the radio, "You are not going to hurt me. I am not going to let you. You just go on." He then asked his wife to pull over and stop.

The testimony of defendant's wife differed somewhat from that of her husband. She testified that defendant "was just like ... egging him [the other driver] on.... He wanted the truck driver to answer him ... and the truck driver wouldn't answer him." The other driver finally responded by telling the defendant that "he was supposed to get in the back of the bunk...."

Williams' truck stopped behind that of Kinikin. Defendant testified that Kinikin walked around the front of his truck and stopped at the passenger side. Kinikin then opened the passenger side door and reached inside. While Williams started to get out of his truck, he saw Kinikin stick something in the back of his pants. It looked to Williams like Kinikin was tucking the object between his body and his "britches." Kinikin then reached up, pushed the latch down on the door, shut it, and walked toward Williams' truck. Williams could not see what Kinikin had put in his pants, but defendant thought it was a weapon.

Defendant testified that when he got out of his truck, he was wearing on his feet his white socks without his boots. Kinikin was shaking his left finger at Williams while walking toward him, having his other hand clenched at his side. Williams said he became frightened and tried to load his rifle. After a few seconds, he was able to put a cartridge in the chamber. Williams then put the gun up to his shoulder and pointed it at Kinikin.

Kinikin then stopped walking toward Williams, according to defendant. Kinikin looked at Williams for a second and said, "Now, we'll see," which caused Williams to jump back. Defendant said Kinikin appeared angry and shouted. Williams then stated that he realized that this voice belonged to the man with whom he had had the "cuss fight" over the radio. According to Williams, Kinikin reached behind his back with his right hand. Williams reacted by stepping backward, bringing the gun upward, and shooting Kinikin. After Williams' wife testified that she did not see anything in Kinikin's hands. She saw her husband put a bullet in the rifle. Defendant then put the rifle to his shoulder and fired. When Williams came back to the truck, his wife said, "My God, did you have to shoot him?" The defendant did not respond to that question, but later told her that "[t]hat was the stupidest thing I ever did."

Williams had pulled the trigger, he got back in his truck and told his wife to go.

The defendant's wife also testified that he instructed her as to the story they would tell if stopped by the police. In the main it consisted of a recitation that he was asleep in the bunk, that she started to pull over behind Kinikin's truck to help a truckdriver who was stopped on the side of the road, but that defendant told her not to stop, so she therefore pulled back onto the highway.

There were several other witnesses whose testimony pointed to the killing of Kinikin by Williams. Kinikin died of the gunshot wound, according to the testimony of a pathologist.

In determining the sufficiency of the evidence to support a finding of guilt in a criminal case, this court does not resolve conflicts in the evidence, determine the plausibility of explanations, or weigh the evidence....