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06/13/95 STATE NEBRASKA v. ALVIN G. MORRIS

June 13, 1995

STATE OF NEBRASKA, APPELLEE,
v.
ALVIN G. MORRIS, APPELLANT.



Appeal from the District Court for Douglas County: James A. Buckley, Judge.

Sievers, Chief Judge, and Miller-Lerman and Inbody, Judges.

SYLLABUS BY THE COURT

1. Convictions: Appeal and Error. In reviewing a criminal conviction, it is not the province of an appellate 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 trier of fact, and the verdict of the jury must be sustained if, taking the view most favorable to the State, there is sufficient evidence to support it.

2. Verdicts: Appeal and Error. A verdict in a criminal case must be sustained if the evidence, viewed and construed most favorably to the State, is sufficient to support the verdict. Moreover, on such a claim, an appellate court will not set aside a guilty verdict in a criminal case where such verdict is supported by relevant evidence. Only where evidence lacks sufficient probative force as a matter of law may an appellate court set aside a guilty verdict as unsupported by evidence beyond a reasonable doubt.

3. Motions to Dismiss: Directed Verdict: Waiver: Convictions: Appeal and Error. A defendant who moves for dismissal or a directed verdict at the close of the evidence in the State's case in chief in a criminal prosecution, and who, after the court overrules the dismissal or directed verdict motion, proceeds with trial and introduces evidence, waives the appellate right to challenge the trial court's overruling of the motion for dismissal or for a directed verdict, but may challenge sufficiency of the evidence for the defendant's conviction.

4. Constitutional Law: : Trial: Prosecuting Attorneys: Witnesses. In the course of a criminal trial before a jury, the act of a prosecutor in calling a witness to the stand with advance knowledge that the witness will invoke the Fifth Amendment may or may not call for a mistrial; each case must be decided in the light of its own facts and circumstances, and consideration must be given to the motive of the prosecutor in calling the witness and to the likelihood of the jury's drawing unwarranted inferences against the defendant from the fact that the witness has declined to testify on constitutional grounds.

5. Trial: Motions for Mistrial. When a party has knowledge during a trial of irregularity or misconduct, he must timely assert his right to a mistrial.

6. Trial: Photographs: Videotapes. The admission of photographs or videotapes of a gruesome nature rests largely within the discretion of the trial court, which must determine their relevancy and weigh their probative value against their possible prejudicial effect.

7. Trial: Evidence: Appeal and Error. An appellant claiming reversible error as the result of admission of evidence must have made a timely objection stating the specific ground of objection, if a specific ground was not apparent from the context.

8. Trial: Evidence: Appeal and Error. Generally, a party is barred from asserting a different ground for an objection to the admission of evidence on appeal than was offered before the trier of fact.

9. Appeal and Error. An issue not properly presented to and passed upon by the trial court may not be raised on appeal.

The opinion of the court was delivered by: Sievers

SIEVERS, Chief Judge.

As the result of a jury trial in the district court for Douglas County, Alvin G. Morris was convicted of manslaughter in connection with the death of Gregory Kowal. Morris was subsequently determined to be a habitual criminal and was sentenced to a term of incarceration of 20 to 25 years, with credit for 335 days served. Morris appeals his conviction to this court and assigns numerous errors. For the reasons cited below, we affirm.

FACTS

On August 13, 1993, at approximately 9:30 p.m., the victim, Kowal, met three friends at Three Cheers, a bar in Omaha, Nebraska. That evening, Kowal cashed a $50 check at the bar and was seen wearing a gold watch and a Black Hills gold ring. A friend of Kowal, Gregory Bourne, testified that Kowal had driven to the bar himself that night in his blue Geo Metro. Bourne also testified that Kowal smoked Camel filter cigarettes. Kowal left the bar alone around midnight and was later seen at Gilligan's, another bar in Omaha, located approximately four to five blocks from Kowal's apartment. Kowal told the bartender there that he was going to have one drink and then go home; however, the bartender did not see Kowal leave the bar.

A body, later identified as Kowal's, was discovered Saturday morning, August 14, on the steps outside a home near 35th and Parker Streets in Omaha. Kowal's body was first seen at approximately 6:30 a.m. However, the police were not called until 8:30 a.m. James Wilson, a City of Omaha police officer assigned to the homicide-assault unit, testified that based on his investigation, Kowal's body had been in that location anywhere from 6 to 8 hours. Police did not find any cash, a watch, or other jewelry on the body.

Blaine Rothman, a pathologist, performed an autopsy on Kowal and testified that the cause of Kowal's death was a single stab wound to the chest which penetrated the right side of the heart. In addition to the stab wound, Rothman found recent facial injuries, including a blackened right eyelid, an abrasion on the forehead, and a swollen lip. Rothman testified that a stab wound such as he found would cause a person to lose consciousness in 20 to 30 seconds and that death would occur in 2 to 3 minutes. Rothman further testified that a blade of 6 inches or more would have the capacity to cause the injury sustained by Kowal. A chemical analysis of Kowal's blood revealed that he was intoxicated at the time of his death, with a blood alcohol level of .218 gram per 100 milliliters.

On the same Saturday that Kowal's body was found, Virgil Combs, a U.S. Postal Service employee, saw a blue Geo Metro hidden in weeds in an alley near 17th and Lake Streets in Omaha at about 1 or 1:30 p.m. Since he suspected that the vehicle was stolen and would soon be stripped, Combs notified the police of the vehicle's location. At the time Combs saw the vehicle, the windows were intact and all tires were on the vehicle. At approximately 4 p.m., Omaha police officer Robert Sedlacek investigated the blue Geo Metro in the area of 17th and Lake Streets. Sedlacek noticed that the doors of the vehicle were locked, the windows were intact, and all four tires were still on the vehicle. However, Sedlacek noticed that the vehicle's radio was missing. Sedlacek ran a check on the vehicle and determined that the owner of the vehicle was Kowal. However, because the vehicle had not been reported stolen, Sedlacek determined that he did not have enough cause to tow it. Sedlacek returned to the area to check on the vehicle at approximately 10 p.m. At that time, the back window of the vehicle had been smashed in and all four tires had been removed. Although the vehicle still had not been reported stolen, Sedlacek decided to have the vehicle towed for safekeeping. As the vehicle was being prepared for towing, Sedlacek received a report that police were looking for a blue Geo Metro which was owned by the victim of a recent homicide. At that point, Sedlacek stopped the tow order and secured the scene where the vehicle was located.

In the area where the car was found, police investigators found some clothing items, registration papers, empty cigarette packages, and Camel "coupons." A fingerprint impressed on a Camel coupon found in the area where the blue Geo Metro was located was later identified as an exact match of Morris' left ring finger.

David Costello of the Omaha Police Division testified that a Kenwood cassette player was pawned at Cashmaster Loans pawnshop at approximately 12:20 p.m. on August 14, 1993, by Raymond Thomas. Thomas is Morris' brother. Kowal's friend Bourne testified at trial that Kowal had a Kenwood cassette player installed in the blue Geo Metro.

Sheila Toles testified that on August 14, 1993, at her boyfriend's request, she gave Thomas and Morris a ride to an area near 17th and Lake Streets "to pick up tires." Upon arrival, Toles saw a blue Geo Metro. Morris told Toles that he had been in the car the night before. Although Toles remained in her car, she heard the sound of glass breaking and saw Morris and Thomas put four tires in her trunk. After an unsuccessful attempt to pawn the tires, Toles took the men and the tires to their sister's house at around 6:20 or 6:30 p.m.

Walter Bray, a twice-convicted felon, testified at trial under a grant of immunity from further prosecution save the robbery charge arising out of this incident for which he was awaiting trial at the time of his trial testimony. We recount Bray's testimony in extensive detail. In August 1993, Bray had no permanent address but had been staying with some friends in a vacant apartment building. At approximately 11 p.m. on August 13, near 18th and Leavenworth Streets, Bray came across Morris. Although Bray had not seen Morris for approximately 4 1/2 years, he recognized Morris when he saw him that evening. Morris suggested to Bray that they "go make some money" and asked Bray to come along and "watch back." Bray testified that he was under the impression that they were going to "hustle fags or . . . rip them off some type of way." Morris and Bray spotted a man sitting in a car by himself near Gilligan's. Morris approached the driver and made him get out of the car and empty his two front pockets. Bray identified pictures of Kowal and the blue Geo Metro as the person and vehicle they approached near Gilligan's. When Morris saw that his pockets were empty, he pushed Kowal into the backseat of the car. Bray also saw Morris pick up a watch from the ground right by the driver's door of the vehicle and saw Morris take Kowal's wallet from Kowal's back pocket. Morris got into the front seat of the car and told Bray to get into the backseat with Kowal.

Bray testified that as Morris drove north on 18th Street, Morris asked Kowal, "Where is the fucking money at[?]" Kowal stated that he did not have any money on him and that they would have to go to his apartment to get it. Kowal gave an address that sounded to Bray like it was located in west Omaha. Morris called Kowal a liar and stated that the address given was an "address where cops live at." Morris also made Kowal give him the ring he was wearing. Morris continued driving, and at some point Kowal stated that "you guys will never get away with this." About 15 seconds later, Kowal tried to grab Morris around the neck. Bray reached to grab Kowal, and Kowal turned and started fighting with Bray. Bray "popped" Kowal in the face a "couple times" and then grabbed his hands to subdue him.

Morris next told Kowal that "if you don't tell me where this fucking money's at . . I'm going to have to stop this car and I'm going to cut your fucking nuts off." At this point, because he was concerned that something worse was going to happen, Bray asked Morris to let him out of the car. Morris continued driving until he reached the area of 33d and Blondo Streets, where he stopped the car and told Bray that this is where he could get out. As Bray started getting out of the car, Kowal started crying, told Morris that he just wanted to get out now, and asked if Morris was going to kill him. When he got out of the car, Bray saw something that looked like a steak knife in Morris' hand. Bray could tell that it was not a pocketknife and that the blade was about 6 inches long and looked silver. Before he left, Morris told Bray to come by his mother's home at 16th and Corby Streets the next day. Bray denied stabbing Kowal or having in his possession any of the items which he said Morris took from Kowal.

Bray testified that the following day, near 17th and Lake Streets, he saw Morris with Thomas stripping Kowal's car. Bray testified that around 3 p.m., he saw Morris and Thomas take the tires off and the radio out of the car. Bray did not talk to Morris at that time. However, 2 or 3 days later, Bray saw Morris and Thomas about to enter Sol's Pawn Shop. At that time, Bray asked Morris about Kowal by asking, "Whatever happened with that guy that you was with when I left[?]" Morris told Bray "Man, I had to do him." Bray testified that he took this to mean that Morris had to kill him. Morris told Bray, "I had to do it, man, because that faggot mother fucker was coming back on us." Morris also said, "Don't worry about it, man. . . . We ain't got nothing to worry about, man. I took and I cleaned the car up and everything." Morris also warned Bray, "Don't tell nobody about this. This is something that we got to die and take to our grave with us."

The last time that Bray saw Kowal alive was when he got out of the car at 33d and Blondo. Bray testified that Blondo is one block north of Parker. Kowal's body was found near 35th and Parker.

After Bray and Morris were both arrested and held in jail in connection with this incident, Bray encountered Morris several times. Each time Morris told Bray to be quiet and that ...


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