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02/01/85 STATE NEBRASKA v. LORAY S. SMITH

February 1, 1985

STATE OF NEBRASKA, APPELLEE,
v.
LORAY S. SMITH, ALSO KNOWN AS LARIE JOHNS, ALSO KNOWN AS MARLA WILSON, APPELLANT



Appeal from the District Court for Douglas County: James M. Murphy, Judge.

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

SYLLABUS BY THE COURT

1. Directed Verdict. In a criminal case the trial court may properly direct a verdict of not guilty only where there is a total failure of competent proof 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.

2. Convictions: Appeal and Error. In reviewing the sufficiency of the evidence supporting a finding of guilt, this court neither determines the plausibility of explanations nor weighs the evidence, such matters being for the trier of fact; the conviction must be sustained if, viewing the evidence most favorably to the State, there is sufficient evidence to support it.

3. Verdicts: Appeal and Error. A jury verdict of guilty will not be overturned on appeal unless it is so lacking in probative force that it can be said as a matter of law that the evidence was insufficient to support it.

4. Homicide: Proof: Intent. Proof of a purpose to kill is not required to establish felony murder because it is not an element of the crime. The only intent required is the intent to do the act which constitutes the felony during which the killing occurred.

5. : Jury Instructions: Witnesses: Convictions. Where the jury has been properly instructed that the testimony of an accomplice should be scrutinized closely for possible motives of falsification, the uncorroborated testimony of an accomplice who has given false testimony concerning a material matter may be sufficient to sustain a conviction.

The opinion of the court was delivered by: Caporale

Loray S. Smith, also known as Larie Johns and Marla Wilson, appeals her conviction, following a trial by jury, of the first degree felony murder of Laura LaPointe. Smith assigns as error the trial court's failure to dismiss the charge against her or, in the alternative, to direct a verdict in her favor. We affirm the conviction which resulted in a sentence of imprisonment for life.

The victim's mutilated corpse was found by a passer-by beside the Canyon Road in the Hummel Park area of Douglas County on Monday morning, April 11, 1983. The death was caused by injuries resulting from multiple blows from a blunt instrument to the head and to many other parts of the body. The victim had been a prostitute in Omaha, and after an investigation by the police, suspicion was focused on four other Omaha prostitutes.

On June 28, 1983, the police began arresting the four suspects. One of these suspects, Geraldine Carr, became the State's primary witness against Smith. Carr's testimony revealed to the jury that she was a prostitute and had also been charged with first degree murder as a result of the same incident. She was awaiting sentence and testified that "no promises of leniency" had been given to her. She then described how she, Smith, and two other prostitutes, Carol Joy and Jo Helen Robertson, first robbed the victim and then beat her to death. Joy's conviction was overturned and the cause remanded for further proceedings in State v. Joy, 218 Neb. 310, 353 N.W.2d 23 (1984).

More specifically, Carr testified that at about 10 p.m. on April 10, 1983, a Sunday, she drove to the downtown area of Omaha in order to ply her trade. Smith joined Carr in the latter's automobile and the two sat and talked, being joined a short time later by Joy and Robertson. The four then went to a liquor store, purchased a bottle of brandy to share, and returned to the downtown area. According to Carr, while sitting in her automobile and drinking the brandy, they all decided to "rob us a trick." While this Discussion was going on, the victim walked by. Smith then called the victim over to the automobile and asked how business had been. When the victim replied that she had had "four or five dates," the four looked at one another, from which Carr "assumed that we could rob" the victim. Smith then invited the victim into the automobile. The victim entered and sat in the back seat between Joy and Robertson.

After Carr drove away from the downtown area, Robertson told the victim that she was being robbed. When the victim replied she had no money, Robertson made her take off her coat and jeans and proceeded to look through them. Joy then checked the victim's clothes, followed by Carr and Smith. During this search, Joy found $25, which Carr snatched, giving Joy $5 and keeping $20 for herself. Robertson took a necklace from the victim, obtained a razor from Joy, and began cutting the victim's hair.

Carr further testified that after the victim told Robertson she had some more money in her hotel room, Joy and Smith got out of the automobile to search the room, but they became frightened and returned to the vehicle before they had made any search. Following this unsuccessful attempt to obtain more money, Robertson began hitting the victim, who then told Robertson if the hitting stopped she would "turn a trick" and give the money to Robertson. Robertson left the car but was unsuccessful in locating a "trick."

Carr further testified that Robertson made the victim perform an act of oral sex on Joy while Carr, Smith, and Robertson watched from the front seat. While this activity was in progress, Robertson hit the victim on the head with Joy's razor, causing the victim to bleed. Carr slapped the victim across the face for bleeding in her car and then gave the victim a blanket to stop the bleeding.

On the way to Hummel Park another bottle of brandy was purchased, but Carr could not remember who went into the liquor store to buy it. They reached Hummel Park after 1 a.m. Once at the park, all five got out of the automobile. Robertson then began hitting the victim, grabbing from Carr the stick which Carr had planned to use for that purpose. Carr also testified that Smith was holding the brandy bottle and said she was going to hit the victim with it. Smith never did this, however, since at Carr's suggestion Carr and Smith got back into the car. Joy then began kicking the victim.

Carr testified that while sitting in the car she asked Smith whether she should leave Robertson, Joy, and the victim. Smith replied that it was Carr's automobile and, therefore, it was up to Carr. Carr did not leave, and Robertson and Joy later got back into the vehicle, leaving the victim in the ditch. Once in the automobile, Robertson and Joy decided they might just as well kill the victim. This time Robertson, armed with a baseball bat, and Joy got out of the car. Robertson beat the victim with the bat, and Joy used the stick. After Joy also beat the victim with the bat, Robertson and Joy got back ...


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