In Ellis, we addressed a defendant's contention that his cross-examination of a prosecution witness was unduly restricted by her assertion of the privileges against self-incrimination and public ignominy in response to questions about prior sexual conduct.Summary of this case from State v. Riensche
Filed March 27, 1981.
1. Venue. Questions of venue may be established by circumstantial evidence as well as direct evidence. 2. Homicide: Circumstantial Evidence: Jury Instructions. Ordinarily, in a case charging first degree murder, where there is no eyewitness to the act, and the evidence is largely circumstantial, the jury should be instructed as to the law governing murder in the first degree, second degree, and manslaughter. 3. Criminal Law: Rules of Evidence. The "other-crimes" rule, Neb. Rev. Stat. § 27-404(2) (Reissue 1979), is a rule of relevance and such evidence is ordinarily prejudicial because prior criminal activity is irrelevant to the proof of a specific crime. 4. Criminal Law: Evidence: Proof. It is competent for the prosecution to put in evidence all relevant facts and circumstances which tend to establish any of the constituent elements of the crime with which the accused is charged, even though such facts and circumstances may prove or tend to prove that the defendant committed other crimes. 5. Criminal Law: Pleas: Evidence. A not guilty plea places in issue every relevant fact, and the prosecution should not be precluded from introducing evidence on a certain element of the alleged crime because there was already some other evidence in the case tending to establish the same, until and unless the trial court, in the exercise of its discretion, determines that further evidence on that point is irrelevant. 6. Criminal Law: Evidence. A purported showing of a paucity of evidence does not prove that a trial court abused its discretion in balancing the probative value against the prejudicial effect of a particular item of disputed evidence. In fact, a lack of other relevant evidence may in some instances increase the probative value of the evidence available. 7. ___: ___. The admissibility of evidence of other crimes lies largely within the discretion of the trial court. 8. ___: ___. Evidence of other crimes, if relevant to the issue, is not made inadmissible simply because they occurred at a time after that of the principal charge. 9. Juror Qualifications. Qualified jurors need not be totally ignorant of the facts and issues involved. It is sufficient as to competency to serve if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court. 10. Witnesses: Self-Incrimination. It is not error for a trial court to limit cross-examination of a witness concerning a subject wherein the witness has claimed the privilege against self-incrimination. 11. Petit Larceny: Impeachment. The crime of petit larceny without proof that the manner in which it was accomplished involved deceit or deception so as to be classified as "crimen falsi" is not such a crime as may be used to impeach a witness' veracity under Neb. Rev. Stat. § 27-609 (Reissue 1979). 12. Prosecutorial Misconduct. Whether misconduct on the part of a prosecuting attorney is prejudicial to the defendant depends largely upon the facts of each particular case. 13. Indictments and Informations: Jury 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.
Appeal from the District Court for Lancaster County: WILLIAM D. BLUE, Judge. Affirmed.
Robert B. Creager of Berry, Anderson Creager for appellant.
Paul L. Douglas, Attorney General, and Sharon M. Lindgren for appellee.
Heard before KRIVOSHA, C.J., BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE, and HASTINGS, JJ.
John R. Ellis appeals to this court from his conviction by the jury of the manslaughter of Deborah A. Forycki. He alleges as principal grounds for reversal: (1) That the Lancaster County District Court lacked jurisdiction to try the action because of improper venue; (2) That the court erred in submitting the case to the jury on the charges of first and second degree murder; (3) That the trial court erred in admitting evidence of other crimes, wrongs, or bad acts committed by him; (4) That the court erred in failing to strike a prospective juror for cause; (5) That it was error to limit his cross-examination of certain witnesses; (6) That error was committed by the admission of purported hearsay testimony; (7) That the trial court erred in failing to grant a mistrial based on the claim of prosecutorial misconduct; and, finally, (8) That the court erred in overruling defendant's motions to dismiss and for a directed verdict. We affirm the District Court.
We first review the facts of this case as revealed by the record, recognizing that most of the evidence adduced was circumstantial in nature. The record is undisputed that Forycki was last seen on October 3, 1974, in Lancaster County, Nebraska, and that her skeletal remains were found in Cass County, Nebraska, on September 13, 1978. At the time of her disappearance, Forycki was a senior at the University of Nebraska-Lincoln, who worked part time at a downtown Lincoln store. On the date of her disappearance, Forycki was to meet a friend for lunch around 11:30 and then be at her place of employment at around 1 o'clock. She was observed leaving her apartment around 11 o'clock that morning, walking toward the downtown area as was her custom, because she did not own or have access to an automobile. She failed to keep her luncheon engagement that day and was never seen or heard from again.
As was previously mentioned, her remains were discovered in Cass County, Nebraska, on September 13, 1978. The skeleton was found inside an antique water wagon which was being prepared for restoration. The water tank atop the wagon's running gear was approximately 10 feet long by 3 feet wide, having a covered top, the opening therein being roughly 2 feet by 2 1/2 feet. The skeleton was found beneath three logs, 5 feet long and 4 inches in diameter, which were apparently sawed at the ends. Atop these logs were two to three sticks, 4 inches in diameter, and an undetermined number of other sticks 2 inches in diameter. Wedged tightly in the opening of the water tank was a roll of woven wire fencing. The water tank had several holes in its sides which were identified as bullet holes, although the date of the making of such holes and the caliber of weapons involved were not definitely determined.
The skeleton was removed from the water tank by an anthropologist using standard techniques. Before removal, the skeleton was observed to be in roughly anatomical position, lying on its back; the feet extended and together; left arm along the left side, with the left hand where the hip would be; right arm pulled up, with the right hand, facing palm up, where the right ear would be; head slightly turned to the right. The skull was located approximately 1 1/2 feet from the end of the water tank, the abdominal section of the skeleton being located beneath the opening in the top of the water tank. The skeleton showed no signs of trauma or force applied to fracture the bones, with the following exception: The right thumb bone and the right radius at the wrist end had apparent defects.
The cause of the defects was undetermined. A forensic scientist who examined the bones believed the defects were consistent with having been formed by a bullet. The anthropologist was of the opinion that the defects were not caused by a bullet. Notwithstanding the dispute as to the cause of defects, the county coroner's physician testified that a wound to the wrist or finger was usually not mortal.
No jewelry, fasteners, zippers, clasps, buckles, or shoes were found in the water tank. A lead object, which exhibited characteristics of a .22-caliber bullet from a rimfire cartridge, was found beneath the skeleton in the abdominal area where the left kidney would have been had the body not been decomposed. While no cause of death could specifically be established by any witness, the county coroner's physician was allowed to testify, over objection, that the skeleton did not show any evidence of fractures, tumors, or healed fractures; of death from natural disease processes; or of death from an accident caused by force applied to bones to fracture them. However, he could not make a determination of the specific and immediate cause of death from an examination of the skeleton.
Evidence with regard to whether Forycki might have committed suicide was also introduced. Following a description of the observable characteristics which a person with suicidal intent or tendencies exhibits, a psychiatrist, whose specialty was in the area of depression and manic-depressive illnesses, testified that he did not believe Forycki was suicidal at the time of her disappearance. This opinion was in answer to a hypothetical question which ostensibly included the observations of her roommate, friends, family, and acquaintances with regard to Forycki's demeanor prior to her disappearance. He further examined a writing made by Forycki on October 2, 1974, from which he said "describes the young lady who although is having transient problems is functioning in my estimation normally."
A second psychiatrist disagreed with the above-mentioned witness in certain respects. He acknowledged, after reading a transcript of the first psychiatrist's testimony, that the characteristics described by the latter were classical symptoms of a type of depression. However, he testified such characteristics were not commonly found in younger people, and, further, there are other types of depression. Moreover, he was of the opinion that Forycki could have committed suicide noting that a person would not write a note similar to that written by Forycki on October 2, 1974, unless the person was upset. He further stated that Forycki was certainly depressed.
In addition to the foregoing, the State presented evidence to establish a connection between Ellis and Forycki. Business records with regard to the class schedules of Ellis and Forycki at the University of Nebraska-Lincoln were introduced. The records revealed that Ellis and Forycki had classes which apparently met the same 3 days a week on the same floor of the same building at the same time of day in the spring of 1974. Testimony from a police officer who investigated the building in 1978 indicated that the numbered classrooms which corresponded to those wherein Ellis and Forycki had classes in 1974 were 60 to 70 feet apart. Class schedules covering the fall of 1974 indicate that Forycki and Ellis had classes 3 days a week in the same building at the same time of the day, although on different floors of the building.
Ellis was enrolled in a class which met on Tuesday and Thursday afternoons during the fall of 1974. His instructor for that class testified that, although she had no independent recollection of the day, Ellis was absent from class on the first Thursday in October, which was October 3rd, according to her records.
A short time after her disappearance on October 3, 1974, a police officer found a note while examining Forycki's possessions. The note, which was subsequently misplaced by the police so that its whereabouts were unknown at the time of trial, was undated. The police officer testified, over objection, that the contents of the note were as follows: "Meet John Kondowski 10:30 at the Student Union." Subsequent investigation failed to reveal the existence of any person by that name in Lincoln.
In October of 1974, Ellis met a woman who was attending the University of Nebraska-Lincoln, with whom he used the alias of "John Tronzowski." A search of university records and of directories of the area failed to reveal a person by either the name of "Kondowski" or "Tronzowski." The woman appeared at trial and testified, over objection, as to the details of a breakfast date which she had with Ellis on October 17 1974. According to her, when she met him that particular morning, he had a piece of rope trailing from his jacket pocket, which he explained as being used for some class that he was taking. Ellis was rather vague as to where they were going, only saying that a friend had given him permission to use his house where they could cook ham and eggs. It was, in fact, a house rented by Ellis. During the early part of their stay at this house, Ellis brought out some apples which he was cutting with a large knife. He made some advances toward this young woman, which she resisted, and he then grabbed her arm with one hand and the knife with the other, which he held near the level of her throat. He then stuffed a handkerchief in her mouth which she wiggled free, and he then told her to get down on the floor, and threatened to break her arm if she screamed. However, she did scream and became hysterical, and finally was able to leave the house. The police were informed of the incident, but charges were not filed.
The testimony of another witness with reference to her experience with Ellis in 1976, approximately 2 years after Forycki's disappearance, was adduced. This witness testified, over defendant's objection, that in the later afternoon of June 10 she received a telephone call from Ellis making a date with her for that evening to eat at a certain restaurant located on East O Street in Lincoln. He at first suggested that she meet him there in the parking lot, but she insisted that he pick her up at her residence. He then called a second time and arranged for her to meet him at the sidewalk in front of her residence. She then got into his automobile. She was not certain whether it was at that time or during the second phone call that he told her they were going to a barbecue at a friend's house out in the country near Elmwood, instead of to the restaurant.
After turning off the main highway south of Elmwood, Ellis all of a sudden turned into a farm road which was screened on either side by high weeds and trees. Shortly after they stopped, the witness saw or felt a knife at her neck, and Ellis then grabbed the top of her hair and pulled it tightly and tried to grab her left arm and pull it behind her. She managed to struggle free and grabbed the blade of the knife. After some calmer discussion between them, the knife was dropped outside the car. The witness then suggested going into Elmwood, which apparently enraged Ellis, who again grabbed the top of her hair, clutched her arm, and forced it behind her neck. He pushed her down on her knees to the floor of the car and tied her arms behind her back. He then tried to place masking tape over her mouth, but she commenced to scream. This seemed to cause a change in attitude in Ellis, and he freed her bonds, and they drove to Elmwood where the witness was able to leave Ellis' car.
The assault on this witness occurred within 75 feet of the location of the water wagon containing the remains of Forycki. Charges were filed against Ellis, and he was convicted and sentenced to jail time in Cass County for this assault.
The location of the antique water wagon was approximately 20 miles from Lincoln. Ellis did not own an automobile in 1974. However, his wife, whom he married on June 6, 1974, owned an automobile that he had access to and use of. Subsequent investigation of the automobile revealed the presence of certain hairs which, according to the testimony of an expert witness, exhibited the same characteristics as that of Forycki's. There was testimony, however, that the hairs might also have come from the daughter of Ellis' wife from a prior marriage who had access to the automobile.
Further evidence with reference to Ellis' familiarity of the Elmwood area was adduced. A cellmate of Ellis' during his incarceration for the 1976 assault testified that Ellis stated that the people in Elmwood were really stupid; and that "if you ever killed somebody and wanted to hide the body, that would be a really good place to do it, that the police would never find it." Ellis further allegedly stated to this witness that he had found a secluded place outside Elmwood to which he had taken people from college on occasions.
Finally, evidence was adduced with reference to statements made by Ellis during an interrogation just prior to his arrest in Evanston, Illinois, for the homicide. The police officers testified that initially Ellis was told that they wanted to talk to him about the death of Deborah Ann Forycki, and he replied that he would like to meditate. A period of meditation of approximately 20 minutes passed, and he was again asked about her death, this time specifically as to whether he, Ellis, was present when she died. His reply, according to the testimony, was that he could not do anything that brutal. This statement was made even though no details regarding the finding of her skeleton were made known to Ellis at the time. Another officer who interviewed Ellis separately testified that he had accused the defendant three times of causing the death of Deborah Forycki and the first two times no response was noted. The third time Ellis replied that "he had put that part of his life out of his mind."
One of the officers testified that Ellis, when told that the police knew that he had been involved in offenses against young women, and specifically the incidents involving the two female witnesses previously mentioned, replied that he was "beginning a new life in Evanston and that was a part of his life that he was putting out of his mind and would not remember that portion of his life." He was then asked, according to the officer, if he had killed anyone, could he put that out of his mind; and he replied, "I think so."
Ellis did not testify in his own behalf at trial. However, evidence with regard to Forycki's emotional state prior to her disappearance was adduced. An instructor of a class which she had in the fall of 1974 and a friend both testified that Forycki had exhibited a marked change in attitude within the week before her disappearance. The friend further testified that Forycki had been depressed for much of September 1974. Finally, an acquaintance of Forycki testified that she had seen Forycki between 12 o'clock and 12:30 p.m. on October 3, 1974, in a downtown Lincoln store. However, rebuttal evidence indicated that the witness might have seen Forycki on October 2, 1974, the day prior to her disappearance.
The jury was instructed on the crimes of first degree murder, second degree murder, and manslaughter. Following deliberation, the jury returned a verdict finding Ellis guilty of manslaughter. The court sentenced Ellis to a term of imprisonment of 10 years. Ellis has appealed to this court, assigning various errors to the trial proceedings, as were earlier set forth.
We first discuss Ellis' contention that the court lacked jurisdiction to try the case because of improper venue of the crime, and that the proper venue should have been in Cass County where the body was found. In Hawkins v. State, 60 Neb. 380, 83 N.W. 198 (1900), this court held that in a prosecution for murder, evidence of the finding of the body of the person alleged to have been murdered, in an old well which had been subsequently filled, situated in Frontier County, was sufficient, in the absence of other proof, to warrant the jury in concluding the homicide was committed in that county. That case, however, was decided prior to our current statute with reference to venue in criminal cases. Our Legislature has provided that all criminal cases shall be tried in the county where the offense was committed, with certain exceptions, one of which is: "If any person shall commit an offense against the person of another, such accused person may be tried in the county in which the offense is committed, or in any county into or out of which the person upon whom the offense was committed may, in the prosecution of the offense, have been brought, or in which an act is done by the accused in instigating, procuring, promoting, or aiding in the commission of the offense, or in aiding, abetting, or procuring another to commit such offense." Neb. Rev. Stat. § 29-1301.01 (Reissue 1979).
The evidence is clear from the record that Forycki left her home in Lincoln on the morning of October 3, 1974, with every intention of returning that evening. She had a luncheon engagement with another person, which she failed to keep, contrary to her stated plans and inherent characteristics and habits of being prompt, reliable, and, as testified to, always early for her appointments. Her body was found in a secluded area in Cass County of which she apparently had no knowledge. In addition, she had no automobile or means of transportation of her own, and it is therefore fairly inferable that she was taken from Lincoln to Cass County by someone. In addition, it is clear from the evidence that when her body was found in the water wagon there was no clothing, jewelry, or articles of adornment found in the water wagon with her remains. This lack of clothing, considered in connection with her reputation for promptness and her clear intention of returning to her home that evening, would permit the conclusion that Forycki was taken from Lincoln to Cass County for criminal purposes by someone, and the trial court so found. It has long been the established rule in this state that questions of venue may be established by circumstantial evidence as well as direct evidence. See, Clark v. State, 151 Neb. 348, 37 N.W.2d 601 (1949); State v. Laflin, 201 Neb. 824, 272 N.W.2d 376 (1978). While there was no direct evidence that Ellis transported Forycki to Cass County on that date, there is evidence that he was absent from class on that date and, also, that hairs were found in the automobile used by him which exhibited the same characteristics as hairs taken from Forycki. We therefore believe that there was ample evidence sustaining the action of the court in refusing to dismiss the action on grounds of venue.
Ellis also contends that the court erred in submitting the case to the jury on charges of first and second degree murder. He does not assign as error the court's instruction with reference to the crime of manslaughter. We believe the court was proper in submitting all three degrees of homicide for the determination of the jury. In Bourne v. State, 116 Neb. 141, 216 N.W. 173 (1927), we held that, ordinarily, in a case charging first degree murder, where there is no eyewitness to the act, and the evidence is largely circumstantial, the jury should be instructed as to the law governing murder in the first degree, second degree, and manslaughter. Likewise, in Moore v. State, 148 Neb. 747, 29 N.W.2d 366 (1947), we held that where an information charges the crime of murder in the first degree, murder in the second degree and manslaughter are included in the charge, the degree ordinarily being for the jury, and where the evidence and circumstances of the killing are such that different inferences may properly be drawn therefrom as to the degrees, it becomes the duty of the court to submit the different degrees to the jury for them to draw the inferences. See, also, Vanderheiden v. State, 156 Neb. 735, 57 N.W.2d 761 (1953); State v. Marion, 174 Neb. 698, 119 N.W.2d 164 (1963); Kraus v. State, 102 Neb. 690, 169 N.W. 3 (1918). In view of the fact that in this case there were no eyewitnesses to the death of Forycki, and that the evidence adduced was largely circumstantial, the court was correct in instructing the jury as to the law governing murder in the first degree, second degree, and manslaughter.
Ellis principally contends that the trial court committed error in admitting evidence of other crimes, wrongs, or bad acts committed by him. The statutory rule with regard to admissibility of such evidence is: "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." Neb. Rev. Stat. § 27-404(2) (Reissue 1979).
The evidence of which the defendant complains, of course, is that of the two assaults as reflected by the testimony of the two young women, earlier set forth in some detail in this opinion. The evidence was introduced, it would seem, to prove the identity of the assailant of Miss Forycki, knowledge by the defendant of the secluded area where the victim's body was found, and plan or scheme or modus operandi.
"The `other-crimes' rule is a rule of relevance and such evidence is ordinarily prejudicial because prior criminal activity is irrelevant to the proof of the commission of a specific crime. Where such evidence, however, is in fact relevant the `other-crimes' rule does not apply. As recently as in State v. Knecht, 181 Neb. 149, 147 N.W.2d 167, we stated the rule as follows: `The defendant cites cases holding that a mistrial should be granted where evidence of other crimes is brought into the record. It is not necessary to discuss these cases here. It is competent for the prosecution to put in evidence all relevant facts and circumstances which tend to establish any of the constituent elements of the crime with which the accused is charged even though such facts and circumstances may prove or tend to prove that the defendant committed other crimes.'" State v. Riley, 182 Neb. 300, 305, 154 N.W.2d 741, 744 (1967). See, also, State v. Nielsen, 203 Neb. 847, 280 N.W.2d 904 (1979). And it is no answer for the defendant to claim that the evidence as to knowledge of the location was unnecessary because the witness Burns had already testified that Ellis had knowledge of the area. This fact should not and does not foreclose the State's introduction of additional evidence on a disputed question of fact. It is elementary that a plea of not guilty places in issue every relevant fact to prove the State's case, and until and unless the trial court, in the exercise of its discretion, determines that further evidence on a point is irrelevant, the State is entitled to attempt to prove its case.
As stated in People v. Condon, 26 N.Y.2d 139, 142, 257 N.E.2d 615, 616, 309 N.Y.S.2d 152 (1970): "[S]o long as the evidence adduced as to the Suffolk County crime was relevant on the issue of identity, the People should not have been precluded from introducing evidence of that crime merely because there was some other evidence in the case tending to establish the identity of the defendant."
This court does not require that the prior or subsequent activity be identical to the act charged to be admissible. As stated by the Eighth Circuit Court of Appeals: "It is enough that the evidence be of similar involvement reasonably related to the offending conduct and be presented in a manner in which prejudice does not outweigh its probative value." United States v. Gocke, 507 F.2d 820, 825 (8th Cir. 1974). Section 27-404(2) is identical to Fed. R. Evid. 404(b). The advisory committee's note to that rule states: "The determination must be made whether the danger of undue prejudice outweighs the probative value of the evidence, in view of the availability of other means of proof and other factors appropriate for making decisions of this kind under Rule 403." Id. at 92.
The trial court must balance between the danger of unfair prejudice to the defendant and the probative value of that evidence. It is for this court to determine whether the trial court abused its discretion, taking into consideration all factors and other means of proof. The defendant contends that the admission of the two independent assaults was prejudicial because of an alleged lack of other reliable evidence of the defendant's guilt.
"[A] purported showing of a paucity of evidence does not prove that trial court abused its discretion in balancing the probative value against prejudicial effect of a particular item of disputed evidence. . . . In fact, a lack of other relevant evidence may in some instances increase the probative value of the evidence available. [Citations omitted.]" State v. Cott, 283 N.W.2d 324, 329 (Iowa 1979). All factors must be put in the balance, and the trial court has a large amount of discretion in this regard.
This court has consistently stated the rule that the admissibility of evidence of other crimes lies within the discretion of the trial court. State v. Costello, 199 Neb. 43, 256 N.W.2d 97 (1977); State v. Moore, 197 Neb. 294, 249 N.W.2d 200 (1976); State v. Ray, 191 Neb. 702, 217 N.W.2d 176 (1974).
"The extent to which the discretion of the trial court will be allowed to be exercised in this regard has not been fixed by any decision of this court. Probably it cannot be but depends upon the facts in each case. . . . In State v. Siddoway, 61 Utah 189, 211 P. 968, it was held: `No exact limitation of time can be fixed as to when another offense tending to prove the intent of the act charged is remote. The decision of that question must depend upon the circumstances of the particular case, and whether evidence is too remote or not is a question whose decision is largely in the sound discretion of the trial court.' [Citations omitted.] The doctrine generally accepted is that remoteness in point of time may weaken the evidential value of the evidence but does not justify its exclusion. [Citations omitted.]
"Likewise it is a matter left to the discretion of the trial court as to whether the prior offenses are sufficiently similar to the one charged in the case on trial so that evidence thereof has probative value." Sall v. State, 157 Neb. 688, 697-98, 61 N.W.2d 256, 262 (1953). (Emphasis supplied.)
It cannot seriously be contended that the other offenses must have preceded the principal charge as to time of occurrence. The State v. King, 111 Kan. 140, 206 P. 883 (1922). Likewise, there is no magic in the amount of time by which the other offenses must have preceded or followed the case being tried, e.g., a period of 15 months did not affect the relevancy of the evidence. Umbaugh v. Hutto, 486 F.2d 904 (8th Cir. 1973).
We are well aware of the responsibility which falls upon the shoulders of the judicial system to protect the rights of a defendant in excluding evidence whose probative value is far outweighed by its unfair prejudice. However, it is no answer for us to stick our heads in the sands of caution and exclude all evidence of other crimes because of the mere possibility of prejudice. After all, any evidence offered by the prosecution in a criminal case is assumed to be prejudicial, otherwise it would not be offered. Nevertheless, as stated in 70 Yale L.J. 763, 773 (1961): "[W]here the highly prejudicial evidence also has great probative worth and plays a crucial role in the prosecutor's case, exclusion of the evidence may destroy his case and result in an unjustified acquittal." In this instance, we cannot say that the trial court abused its discretion when it determined that the probative value of the evidence of other crimes in the facts and circumstances of this case was not outweighed by the prejudicial effect. The evidence was properly received.
A juror by the name of Wilson was called as a member of the panel to constitute the jury in this case. Mr. Wilson was at the time of the trial a member of the Lincoln Police Department, and had been for approximately 5 years. He was acquainted with many of the officers who would be testifying and had heard the case discussed to some extent within the department, but had not done any work on it himself. He did state, in answer to questions on voir dire, that it was his opinion that Miss Forycki was murdered, but that he did not have any opinion as to whether or not John Ellis was the one responsible for that murder. Finally, the juror stated that if instructed to do so, he could set aside any opinions about the case that he held at that time. The defendant's challenge for cause was overruled. However, Mr. Wilson was not one of the jurors who was retained on the jury which actually heard the trial.
Neb. Rev. Stat. § 29-2006 (Reissue 1979) provides that it is a good cause for challenge of a juror who has "formed or expressed an opinion as to the guilt or innocence of the accused . . . ." (Emphasis supplied.) However, the statute goes on to provide that if the juror states under oath that notwithstanding such opinion he can render an impartial verdict, the court may in its discretion "admit such juror . . . as competent to serve in such case." The defendant in his brief concedes that "[t]he granting of a challenge of a prospective juror for cause is within the discretion of the trial court, and is generally not reversed unless clearly wrong." This position is supported by Bemis v. City of Omaha, 81 Neb. 352, 116 N.W. 31 (1908); Ward v. State, 58 Neb. 719, 79 N.W. 725 (1899); and Kitts v. State, 153 Neb. 784, 46 N.W.2d 158 (1951). In Murphy v. Florida, 421 U.S. 794, 799-800, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975), the Court said: "Qualified jurors need not, however, be totally ignorant of the facts and issues involved. `To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.' [Citations omitted.]" There is no merit to defendant's complaint.
Defendant also contends that he was unduly restricted in his cross-examination of the witness who testified about being assaulted by the defendant in the Elmwood area. The defendants' counsel attempted to cross-examine her on relationships with Ellis, including past sexual conduct. At the time to be covered in such cross-examination, the witness was married to another man. She claimed her privilege against self-incrimination and public ignominy, and the trial court sustained the objection. This ruling was fully in accord with Neb. Rev. Stat. § 25-1210 (Reissue 1979) which states in part: "When the matter sought to be elicited would tend to render the witness criminally liable, or to expose him to public ignominy, he is not compelled to answer . . . ."
The defendant also complains that the trial court prohibited the defendant from inquiring of the witness Burns as to a prior petit larceny conviction as constituting an act of dishonesty within the meaning of Neb. Rev. Stat. § 27-609 (Reissue 1979). He also claims that he was not permitted to inquire as to the different times that Burns had been in jail before the incident involving the conversation with Ellis about which he testified. The answer to the second contention is that, in the final analysis, the trial court did not direct the defendant's attorney not to make such inquiry, but the defendant chose not to cross-examine Burns in that regard. The other problem, whether the crime of petit larceny is one involving "dishonesty or false statement" within the meaning of 27-609, cannot be disposed of in such a summary fashion.
At first blush, it might appear that to steal is to be dishonest; therefore, larceny is a crime involving dishonesty. However, that conclusion does not necessarily follow. The specific language of 27-609 was taken from Fed. R. Evid. 609, 28 U.S.C. at 563 (1976). Referring to Notes of Conference Committee, House Report No. 93-1597, we find this language at 565: "By the phrase `dishonesty and false statement' the Conference means crimes such as perjury or subornation of perjury, false statement, criminal fraud, embezzlement, or false pretense, or any other offense in the nature of crimen falsi, the commission of which involves some element of deceit, untruthfulness, or falsification bearing on the accused's propensity to testify honestly." That report was discussed in United States v. Smith, 551 F.2d 348 (D.C. Cir. 1976), and the term "crimen falsi" was defined at 362-63: "Even in its broadest sense, the term `crimen falsi' has encompassed only those crimes characterized by an element of deceit or deliberate interference with a court's ascertainment of truth." The court then goes on to say at 363-64: "Two recent Third Circuit cases, decided the same day, have argued convincingly that petty larceny is not ordinarily a crime involving dishonesty or false statement under Rule 609(a)(1)."
One of the two cases referred to was Government of Virgin Islands v. Toto, 529 F.2d 278 (3d Cir. 1976). At page 281 of that opinion appears the following: "For our purposes here, we have no difficulty in accepting the government's formulation of the concept: `Although the term "Crimen Falsi" has been subject to many definitions, the generally accepted scope of the term would be crimes that are in the nature of perjury or subornation of perjury, false statement, criminal fraud, embezzlement, false pretense or any other offense the commission of which involves some element of deceitfulness, untruthfulness, or falsification bearing on the accused's propensity to testify truthfully.' Appellee's Brief at 4. Absent special circumstances, and as the district court so aptly put it: `Petit larceny is just not that.'" (Emphasis supplied.) See, also, footnote 3: "It is conceivable that a conviction for petit larceny might subsume a crime in the nature of crimen falsi, e.g.,`petit' stealing by false pretenses. There is no indication that the petit larceny involved here was other than ordinary stealing. If appellant's prior conviction was for petit larceny which might be classified as crimen falsi, it will be incumbent upon the prosecution to bring that point to the trial court's attention if evidence of the conviction is sought to be introduced on retrial."
Although the statements set out above were dictum in that case, we agree with the reasoning of the court. The defendant, in his offer of proof, having failed to show that the petit larceny offense of which the witness had been convicted involved deceit or deception so as to be classified as "crimen falsi," the District Court was correct in prohibiting its introduction into evidence.
The defendant insists that the testimony of the two witnesses who testified as to the contents of a note containing the name of "John Kondowski," found among Miss Forycki's possessions, should have been excluded as hearsay. Neb. Rev. Stat. § 27-1004 (Reissue 1979) provides in part: "The original is not required, and other evidence of the contents of a writing . . . is admissible if: (1) All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith . . . ." The record supports the admission of the testimony under the authority of that section. However, the defendant urges us to find that note itself constituted hearsay because it was claimed to have been written by Miss Forycki. However, the testimony was not offered to prove the truth of any statement made by the victim, but, rather, that the name "John Kondowski" appeared on a piece of paper in Miss Forycki's handwriting. The evidence of the writing itself supported a logical inference that the two were acquainted and was not hearsay.
We next turn to defendant's complaint of misconduct on the part of the prosecuting attorney in asking certain questions and in comments made during final summation. We should observe at the outset that this was a very long, complicated, and hard-fought trial, filled with innumerable objections by defense counsel in conscientiously defending his client, which in turn spawned increasingly aggressive questioning by the prosecutor in performing his lawful duties. For example, in the final closing, the county attorney stated that the defense had made him prove every detail of the crime. Defendant urges that this is tantamount to saying that guilt can be inferred because the defense required the State to prove its case, which he insists is an overzealous misstatement of the law. It was that, and it was perhaps a bit unartful. "Although the prosecutor was less than artful at times, it does not appear that his conduct was meant to, or did, inflame the prejudices or excite the passions of the jury against the defendant." State v. Tiff, 199 Neb. 519, 529, 260 N.W.2d 296, 302 (1977). Also, one must look to the prior remarks of defense counsel in closing, during which he inquired of the jury, in effect, why did the prosecutor spend so much time in proving the identity of the victim, in proving that she did not die of self-inflicted wounds or of natural causes. One cannot leave questions dangling and then object because answers are attempted. The prosecutor's laudatory remarks about the quality of the investigational work done by the Lincoln Police Department were quite irrelevant, but hardly rise to the level of inflammatory remarks tending to prejudice the jury. The other questions or remarks simply consisted of logical inferences that could be deduced from the record, even though not directly supported by specific evidence. We have examined the record carefully in this regard, and conclude that the remarks complained of did not rise to a level sufficient to have required the granting of defendant's motion for a mistrial. "Whether misconduct on the part of a prosecuting attorney is prejudicial to the defendant depends largely upon the facts of each particular case." State v. Costello, 199 Neb. 43, 53, 256 N.W.2d 97, 104 (1977).
Finally, we must examine the defendant's claim that the evidence did not support the jury's verdict and that the court erred in failing to sustain his motion to dismiss or for a directed verdict. The trial court gave as its instruction No. 13, NJI 14.50, concerning circumstantial evidence. We have held that "the law is well settled that a person charged with a crime may be convicted on circumstantial evidence only" but "that if circumstantial evidence is used to convict a defendant in a criminal case, it must be of such weight and character as to establish proof of guilt beyond a reasonable doubt." State v. Payne, 205 Neb. 522, 531, 534, 289 N.W.2d 173, 178, 179 (1980).
We have set forth the relevant evidence earlier in this opinion. The following language from State v. Williams, 205 Neb. 56, 72-73, 287 N.W.2d 18, 27-28 (1979), is particularly appropriate here: "For almost a century it has been the rule in this state that: `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' [Citation omitted.]
"While the evidence in this case may be entirely circumstantial . . . there can be no real doubt that it was more than sufficient to go to the jury, and the trial court did not err in overruling the motion for directed verdict."
The defendant's various assignments of error are not sustainable. The judgment and sentence of the District Court are affirmed.