State v. Wilson

• Decision Date: 22 May 1987
• Docket Number: No. 86-777,86-777
• Citation: 406 N.W.2d 123,225 Neb. 466
• Parties: STATE of Nebraska, Appellee, v. Thomas A. WILSON, Appellant.
• Court: Nebraska Supreme Court

Page 123

406 N.W.2d 123

225 Neb. 466

STATE of Nebraska, Appellee, v.Thomas A. WILSON, Appellant.

No. 86-777.

Supreme Court of Nebraska.

May 22, 1987.

Syllabus by the Court

1.Rules of Evidence: Other Acts.Neb.Rev.Stat. § 27-404(2)(Reissue 1985) is an inclusionary rule which permits the use of evidence of relevant other crimes, wrongs, or acts if such is relevant for any purpose other than to show defendant's propensity or disposition to commit the crime charged.

2.Rules of Evidence: Other Acts.Although evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he or she acted in conformity therewith, it may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

3.Rules of Evidence: Trial.Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

4.Evidence: Trial: Appeal and Error.Generally, it is within the trial court's discretion to admit or exclude evidence, and such rulings will be upheld on appeal absent an abuse of discretion.

5.Trial: Rules of Evidence: Hearsay: Words and Phrases.Hearsay is a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted.Neb.Rev.Stat. § 27-801(3)(Reissue 1985).

Thomas M. Kenney, Douglas County Public Defender, and Timothy P. Burns, Omaha, for appellant.

Robert M. Spire, Atty. Gen., Lincoln, and Marie C. Pawol, Omaha, for appellee.

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

BOSLAUGH, Justice.

The defendant, Thomas A. Wilson, was charged with first degree murder in the shooting death of his son, Robert Paul Wilson, and with use of a firearm in the commission of a felony.He was found guilty of second degree murder and sentenced to imprisonment for 35 years on count I and 6 to 20 years on count II, the sentences to run consecutively.He has appealed and contends the trial court erred (1) in allowing the testimony of Christine Wilson and Joseph Lang, Sr., regarding their knowledge of a Florida robbery; (2) in receiving exhibits 1 through 4; and (3) in receiving exhibit 37 into evidence.

The victim, who was known as Bobby Wilson, died from a single gunshot wound to his chest inflicted while visiting the defendant's Omaha, Nebraska, home on August 31, 1983.The only surviving witnesses to the incident, the defendant and Christine Wilson, the defendant's wife at the time of the shooting, originally reported that Bobby had shot himself following an argument with the defendant.Similar stories were reported in taped statements by the Wilsons the day after the shooting.Following these statements, the police closed the case as a suicide.

In September of 1985, Christine Wilson came forward with a different version of the shooting.According to Christine's testimony at trial, she and the defendant were in bed on August 31, 1983, when Bobby Wilson knocked on the front door.The defendant answered the door and after 5 to 10 minutes, the two men began to argue.The defendant yelled at Bobby, "[H]ow could you do that" and "there were other people that had to be paid and it wasn't right."Bobby responded that "Tommy was too old, he couldn't handle it any more, he couldn't do the job any more."

When Christine walked through the dining room on the way to the bathroom, she saw the two men near the front door in the living room.They stopped arguing as she passed by.After she had returned to the bedroom, Christine heard the two men begin to argue again.Bobby became very angry and stated that he was leaving.Christine heard the front door open and then the defendant, in a conciliatory tone of voice, asked Bobby to stay.Bobby said okay and the door was closed.Then Bobby screamed, "[D]ad, no," and there was a shot fired.Christine ran to the dining room and saw Bobby on his knees leaning against the wall by the front door.Bobby was pleading with his father, who was holding a gun 5 inches from Bobby's head, not to kill him.

Christine began screaming at the defendant not to shoot.The defendant backed away from Bobby, who then began to plead for an ambulance.Christine started toward the telephone, but was ordered to stop by the defendant.The defendant then offered to call an ambulance if Bobby promised to say he had shot himself.Bobby agreed, and an ambulance was summoned.Christine was instructed to say that Bobby had shot himself.By the time the rescue team arrived, Bobby's state of consciousness was confused.Upon his arrival at the hospital emergency room, Bobby stated that he did not wish to die.Rescue efforts were unsuccessful, and Bobby died at 8:54 that evening.Christine testified that on the following day the defendant demonstrated how he had shot Bobby.

Apparently, the argument leading to Bobby's death stemmed from the robbery of a drug dealer in Florida during the summer of 1983, in which the defendant, the victim, and Joseph Lang, Sr., were involved.Lang and the defendant flew to Miami, Florida, that summer, where they met Bobby.According to Christine, the defendant had been hired to rob a drug dealer there.About a week after arriving in Florida, the defendant returned to Omaha alone, stating to Christine that he had come home to rest, but was planning to return to commit the robbery.

Lang and Bobby remained in Florida another 2 or 3 weeks before Bobby individually obtained the sought-after money.After the two men returned to Omaha, Bobby gave Lang $6,000 for himself and an envelope for the defendant.Bobby then left town.Lang delivered the envelope to the defendant the next day.The defendant became angry when he received the envelope because it contained only $6,000.According to Christine, the defendant could not understand how Bobby could "do that to him" when it was his (the defendant's)"deal."Less than a month prior to the shooting, the defendant went to New Hampshire to see Bobby and to "get something resolved or taken care of."While there, the two men physically fought over the share of money the defendant received.

Christine's testimony indicates that her marriage to the defendant began to deteriorate after Bobby's death.By June of 1985, she determined that she must leave the defendant because of the shooting.

After her separation from the defendant, he began to harass and threaten Christine and her family.On one occasion, the defendant came at Christine with a gun, but she was able to defend herself.Following an incident on July 4, 1985, Christine filed for divorce.Three to four weeks after the filing, Christine began seeing the defendant twice weekly for "sexual relations."Christine testified that she was forced to make those visits because of the defendant's death threats against her family and herself.Christine also testified that on several occasions after Bobby's death, the defendant threatened her with statements to the effect that she had better not push him (the defendant) because Bobby had done so and she saw what happened to him.Christine also said the defendant told her that "rats" or "snitches" always die and that she could not testify against him because she was his wife.

Finally, after a threat by the defendant against her father's life, Christine Wilson sought out FBI agent Tom Murphy, to whom she told her story.Eventually she talked with the Omaha police.After making her own taped statement, Christine was asked to have a recording device placed in her purse to record conversations between herself and the defendant.

Christine agreed to carry such a device on December 17, 1985, but the defendant was unusually quiet that day and, according to Christine, hardly talked at all.She agreed to return to the defendant's home on January 2, 1986, with another listening device in her purse.On this occasion the conversation was monitored and recorded by an Omaha police officer in a nearby unmarked car.Four cassette tapes were used to record the conversation.In this conversation the defendant alluded to Bobby's death as Christine said that he frequently had.The defendant was arrested 1 week later on January 9, 1986, and subsequently charged with first degree murder and the use of a firearm to commit a felony.

Trial to a jury began July 8, 1986.At trial, defense counsel objected unsuccessfully to the testimony of Christine Wilson and Joseph Lang, Sr., regarding their knowledge of the Florida robbery, on grounds of relevance and that it related to other crimes, wrongs, or acts.

Defense counsel also objected unsuccessfully to the admission of two portions of exhibits 1 through 4, the tape-recorded conversations between Christine Wilson and the defendant on January 2, 1986.This objection was that the two portions in question related to other crimes, wrongs, or acts and were therefore inadmissible.

Additionally, exhibit 37, photocopies of nine records of complaints received by the Bellevue, Nebraska, police department are said to have been received over the objection of defense counsel.These records indicate complaints were received from Christine Wilson's parents' home between July 4 and 8, 1985.The record of each complaint includes a remarks section which reflects the statements which were made by the complaining party when the call was made.

As to the first assignment of error, the defendant concedes that the testimony regarding the Florida robbery was relevant under Neb.Rev.Stat. § 27-404(2)(Reissue 1985), to show the motive to commit the crimes alleged.Clearly, that was the State's purpose in offering the testimony.

Section 27-404(2) provides:

Evidence of other crimes, wrongs, or acts is...