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03/17/89 STATE NEBRASKA v. VELMA BATISTE

March 17, 1989

STATE OF NEBRASKA, APPELLEE,
v.
VELMA BATISTE, APPELLANT



Appeal from the District Court for Adams County: Bernard Sprague, Judge.

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

SYLLABUS BY THE COURT

1. Speedy Trial: Time. The time between the dismissal and refiling of a charge is not includable in calculating the 6-month time period set forth in Neb. Rev. Stat. § 29-1207 (Reissue 1985).

2. Convictions: Appeal and Error. In reviewing the sufficiency of the evidence to sustain a criminal conviction, it is not the province of the Supreme Court to resolve conflicts in the evidence, pass on the credibility of witnesses, determine the plausibility of explanations, or weigh the evidence. Such matters are for the finder of fact, and the verdict must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support it.

3. Homicide. A person commits murder in the first degree if he kills another purposely and with deliberate and premeditated malice.

4. Homicide. When it is claimed that a killing was upon a sudden quarrel, there are three elements of the crime of manslaughter: (1) the killing of another, (2) upon a sudden quarrel, and (3) without malice. Neb. Rev. Stat. § 28-305 (Reissue 1985).

5. Intent: Words and Phrases. "Malice," in a legal sense, denotes that condition of mind which is manifested by the intentional doing of a wrongful act without just cause or excuse.

6. Homicide: Intent. To constitute manslaughter, the slayer must have no intention of doing the wrongful act of killing another without just cause or excuse.

7. Words and Phrases. "Purposely" means intentionally.

8. Intent: Proof: Evidence: Circumstantial Evidence. Intent, like any mental process or other state of mind of a defendant, may be proved not only by direct but also by circumstantial evidence and the inferences to be drawn therefrom.

9. Intent: Evidence. The law is settled that independent evidence of specific intent is not required. The intent with which an act is committed is a mental process and may be inferred from the words and acts of the defendant and from the circumstances surrounding the incident.

10. Convictions: Juries: Circumstantial Evidence. In finding a defendant guilty beyond a reasonable doubt, a jury may rely upon circumstantial evidence and the inferences that may be drawn therefrom.

11. Homicide: Words and Phrases: Intent. "Premeditated" means to have formed a design to commit an act before it is done. A person kills with premeditated malice if before the act causing the death occurs, he or she has formed the intent or determined to kill the victim without legal justification.

12. Homicide: Juries: Intent: Time. The question of premeditation is for the jury to determine. No particular length of time for premeditation is required, provided that the intent to kill is formed before the act is committed and not simultaneously with the act that caused the death. The time needed for premeditation may be so short as to be instantaneous; the intent to kill may be formed at any moment before the homicide is committed.

13. : Trial: Evidence. A motion to reopen a criminal case to allow introduction of further evidence is addressed to the discretion of the trial court.

14. Motions for New Trial: Appeal and Error. A motion for new trial on the ground of newly discovered evidence is addressed to the discretion of the trial court, and unless an abuse of discretion is shown, its determination will not be disturbed.

15. : Motions for New Trial. In any criminal case where it shall be made to appear upon the motion of the defendant for a new trial, supported by affidavits, depositions, or oral testimony, that the defendant has discovered new evidence material to his or her defense which he or she could not with reasonable diligence have discovered and produced during the term within which the verdict upon which he was sentenced was rendered, the district court may set aside such sentence and grant a new trial. Neb. Rev. Stat. § 29-2103 (Reissue 1985).

16. Motions for New Trial: Evidence. New evidence in support of a motion for a new trial must be so potent that, by strengthening evidence already offered, a new trial would probably result in a different verdict. The new evidence must be relevant and credible, and not merely cumulative.

The opinion of the court was delivered by: Fahrnbruch

Velma Batiste appeals her first degree murder conviction resulting from the strangulation death of Patty Wolzen in Hastings, Nebraska. She was sentenced to life imprisonment. We affirm the defendant's conviction and sentence.

In her appeal to this court, Batiste's seven assignments of error may be summarized as follows: The trial court erred in failing to (1) grant her a speedy trial, (2) find there was insufficient evidence to convict her, (3) permit the defendant to reopen her case before the close of the trial, and (4) grant a new trial based on newly discovered evidence.

On Sunday morning, December 5, 1982, Patty Wolzen's 4-year-old daughter found her mother's lifeless body in the first floor bathroom of their apartment. The daughter alerted a neighbor. An ambulance was called, and the victim was taken to a hospital. After a pattern of contusions and abrasions was discovered on the dead woman's neck, the police were contacted. An autopsy disclosed that Wolzen had been manually strangled and had died from asphyxia.

Law enforcement officials immediately began an extensive murder investigation, but had no suspect for over 3 years. It was in February 1986, that Leonard Batiste, a brother-in-law of the defendant's, contacted the Adams County sheriff's office. He told authorities that Velma Batiste admitted to him that she had killed Wolzen. Leonard Batiste also said that the defendant, on more than one occasion, told him "she got what she deserved" for having a sexual relationship with the defendant's husband.

Leonard Batiste further told law enforcement officials that a Geraldine Wallace was present when Wolzen was killed. Law enforcement officers, who had previously interviewed Wallace, reinterviewed her. At the second interview, she was known as Geraldine Wallace McGhee. She admitted being present at the beginning of the strangulation of Wolzen. McGhee said she lied during earlier interviews about the killing because she was afraid of Velma Batiste. McGhee was charged with, and convicted of, false reporting, and thereafter was charged with failure to appear for her sentencing.

Velma Batiste was arrested and charged with killing Wolzen "purposely and with deliberate and premeditated malice," in violation of Neb. Rev. Stat. § 28-303(1) (Reissue 1985). An initial information setting forth the first degree murder charge was filed March 18, 1986, in the Adams County District Court. On October 27, 1986, the defendant filed a motion for discharge, claiming that she had not been brought to trial within 6 months from the filing of the information on March 18, 1986. On October 29, 1986, the State dismissed the case without prejudice because McGhee could not be found for the scheduled December 1, 1986, trial. Batiste was released from jail.

McGhee was apprehended on February 23, 1987. The first degree murder charge against Velma Batiste was refiled in the Adams County Court on June 18, 1987. On August 3, 1987, the defendant waived her right to a preliminary hearing and was bound over to the Adams County District Court for trial. A second information charging Batiste with murder in the first degree was filed in the Adams County District Court on August 11, 1987. On October 1, 1987, the defendant again filed a motion for discharge, claiming she had not been brought to trial within 6 months from March 18, 1986, the date when the first information was filed. The motion was denied.

Following a 5-day trial, the jury, on November 2, 1987, returned a verdict finding the defendant guilty of murder in the first degree. On December 16, 1987, she was sentenced to life imprisonment.

The defendant first complains that she was not given a speedy trial and, therefore, should have been set free. Neb. Rev. Stat. § 29-1207 (Reissue 1985) provides that a defendant must be brought to trial within 6 months from the date the information setting forth the charge is filed. In the computation of the 6-month period, the statute permits exclusion of any delay attributable to the defendant. Attributable to the defendant in this case were those times she used to depose witnesses and to process motions to suppress evidence, motions in limine, and motions to continue.

According to the trial court, the State was chargeable with 81 days from the time the first information was filed until it was dismissed. The court found that an additional 48 days were chargeable to the State for the period between when the second information was filed and the commencement of the trial. Thus, the State used a total of 129 days before bringing the defendant to trial, well within the allotted 6-month period.

The defendant does not complain that the court's time computations are inaccurate but, rather, that at least a portion of the time between the dismissal of the first information and the filing of the second information should be included in calculating the 6-month period. Batiste argues that once the witness McGhee was located, the information should have been refiled. She claims that the time between locating the witness and the filing of the second information should be included in the 6-month period.

In State v. Torrence, 192 Neb. 720, 224 N.W.2d 177 (1974), cert. denied 420 U.S. 928, 95 S. Ct. 1127, 43 L. Ed. 2d 399 (1975), the defendant, on March 6, 1972, was charged with possession of heroin. On March 15, 1972, following a preliminary hearing, the charges were dismissed. Thereafter, this court, in State v. McElroy, 189 Neb. 376, 202 N.W.2d 752 (1972), decided December 8, 1972, clarified the law regarding possession of controlled substances. The charge against Torrence was refiled on April 9, 1973. He was convicted at a trial that began October 22, 1973. On appeal, Torrence claimed he was denied a speedy trial. This court found that the period between the dismissal of the original charges and the refiling of the charges was not includable, even though the State waited 4 months from the McElroy decision before refiling the charges.

In Batiste's case, the time between the dismissal and refiling of the charge is not includable in calculating the 6-month time period set forth in § 29-1207. The defendant's first assignment of error is without merit.

Next, we address whether there was sufficient evidence to support a first degree murder conviction. Section 28-303(1) (Reissue 1985) provides that murder in the first degree is committed when a person kills another ...


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