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August 5, 1983


Appeal from the District Court for Sarpy County: Ronald E. Reagan, Judge.

Krivosha, C.j., Boslaugh, McCown, White, Hastings, Caporale, and Shanahan, JJ.


1. Confessions. To be admissible, a statement or confession must be free and voluntary. It must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence. The determination of whether a statement was voluntarily made necessarily turns on the consideration of the totality of the circumstances in any particular case.

2. Confessions: Appeal and Error. A finding of 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.

3. Venue: Appeal and Error. 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.

4. Juror Qualifications. The true object of challenges, either peremptory or for cause, is to enable the parties to avoid disqualified persons and secure an impartial jury. When that end is accomplished, there can be no just ground for complaint against the rulings of the court as to competency of the jurors.

5. Motions for Mistrial: Juror Qualifications. In the absence of a showing of prejudice, a trial court is correct in denying a motion for mistrial. Opportunity for prejudice or disqualification of jurors does not raise a presumption that prejudice or disqualification exists.

6. Video Tapes. Admission of video tapes is generally within the trial court's discretion, subject to the same requirements for admission of still photographs.

7. Homicide: Photographs. 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.

8. Homicide: Photographs. A photograph which illustrates or makes clear some controverted issue in a homicide case may be received even if it is gruesome, where a proper foundation has been laid.

The opinion of the court was delivered by: White

This is an appeal from the District Court for Sarpy County, Nebraska, from a verdict of guilty to second degree murder and a sentence of 30 years. Appellant appeals and assigns that the trial court erred in (1) failing to sustain appellant's motion to suppress statements given by appellant to the Bellevue police; (2) failing to sustain appellant's motion for change of venue or continuance; (3) failing to grant a mistrial based upon jury misconduct during the trial; (4) failing to grant a mistrial based upon the introduction and viewing by the jury of a video tape of the murder scene; (5) allowing prejudicial and inflammatory photographs and testimony into evidence; and (6) failing to give appellant's requested instruction regarding Miranda warnings. We affirm. A statement of the facts is necessary.

On Saturday night, January 23, 1982, Lori Lappin and two friends attended a party in Bellevue, Nebraska, arriving home at 1 a.m. Edel Cook remained behind at the apartment she shared with Lori and went to work at the Crown Court restaurant, which was also in Bellevue, on Sunday morning, January 24, 1982. Lori left the apartment with her boyfriend, Mark Hensley, that day at 1:30 p.m. and did not return until 8 p.m. Upon opening the door they discovered the body of Edel Cook on the sofa against the north wall in the living room. There was a large amount of blood on the face of Edel and the north wall of the apartment. Edel's body was covered with a quilt which left uncovered her feet at one end and from the shoulders up at the other end. Edel's face did not have normal symmetry and had the appearance of being crushed from a severe beating. There was a deep laceration extending across her throat, and a serrated steak knife was found on the floor near the sofa. Around Edel's body were pieces of a ceramic vase and mug which had been broken. These pieces were lying next to and underneath Edel's body and also on the floor in front of the couch and by the hallway on the south side of the couch.

The shorts that Edel had been wearing at the time of her death had been cut in two at the crotch area and her panties had been partially pulled down, with blood smeared in the area of her thighs. The Bellevue police were called.

The police could find no visible signs of forced entry or attempted forced entry into the building, and the lock on the apartment door was in good working order. In a kitchen drawer the plastic divider that contained knives was stained with blood, as was one steak knife ...

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