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STATE NEBRASKA v. PAUL L. KENNEDY

April 16, 1996

STATE OF NEBRASKA, APPELLEE,

v.

PAUL L. KENNEDY, APPELLANT.



Appeal from the District Court for Lancaster County: Bernard J. McGinn, Judge. Affirmed.

Hannon, Sievers, and Inbody, Judges.

Hannon, Judge.

FOR PUBLICATION

[#Comment: State v. Kennedy]

Filed April 16, 1996.

1. Criminal Law: Trial: Proof. An accused in a criminal prosecution should be free from shackles during his trial unless they are necessary to prevent violence or escape. It is the State's burden to show the necessity for physical restraints.

2. Criminal Law: Trial. It is within the court's discretion whether to shackle a defendant at trial.

3. Trial: Evidence: Appeal and Error. Error cannot be predicated on the admission of evidence to which no objection was made when the evidence was adduced at trial.

4. Trial: Witnesses: Testimony. Ordinarily, cross-examination is proper as to anything tending to affect the accuracy, veracity, or credibility of a witness.

5. Trial: Evidence: Witnesses: Impeachment: Appeal and Error. A ruling on evidence of a collateral matter but intended to affect the credibility of a witness falls within the discretion of a trial court, and absent an abuse of discretion, a trial court's ruling on such evidence is not grounds for reversal.

6. Trial: Rules of Evidence. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.

7. Homicide: Photographs. In homicide cases, gruesome photographs are admissible for purposes of identification, to show the condition of the body or the nature and extent of the wounds, or to establish malice or intent.

8. Rules of Evidence: Juries. Injured parts of a victim's body may be displayed to a jury when relevant under Neb. Rev. Stat. #s 27-401 (Reissue 1995) and when not unduly prejudicial under Neb. Rev. Stat. #s 27-403 (Reissue 1995).

9. Rules of Evidence. To exclude evidence under Neb. Rev. Stat. #s 27-403 (Reissue 1995), it is not enough that the evidence is merely prejudicial, for most of the evidence of one party is intended to be prejudicial to the other party, but the evidence must be unfairly prejudicial.

In this action, Paul L. Kennedy appeals from his convictions for attempted first degree murder, conspiracy to escape, and use of a weapon to commit a felony, and for being a habitual offender. Kennedy alleges that the trial court denied him a fair trial by improperly keeping him in restraints throughout the trial, limiting his cross-examination of a coconspirator testifying for the State, allowing the State to adduce testimony from a coconspirator after allegedly promising not to call him as a witness, and by allowing the victim of the attack to display injuries he received during the incident. We affirm.

THE INCIDENT

Kennedy does not dispute the sufficiency of the evidence to support his convictions. Therefore, only a brief summary of the incident itself will be set out.

The record establishes that in the months preceding August 31, 1991, Kennedy, Richard Schwartz, Thomas Fleming, and other inmates conspired to escape from the Nebraska State Penitentiary.

At approximately 8 a.m. on Saturday morning, August 31, 1991, Max Fredrickson began his garbage route through the penitentiary. He was met at the front gate by a correctional officer who was assigned to escort the truck through the penitentiary. At one of the garbage pickup stations, Kennedy, Schwartz, Fleming, and other inmates attempted to commandeer the garbage truck. Schwartz scared off the correctional officer escorting the truck by throwing liquid accelerant in his face, while Kennedy climbed into the cab and threw liquid accelerant onto Fredrickson. Fredrickson turned sideways and began kicking Kennedy, who began stabbing at Fredrickson's legs with an ice pick. Fleming then grabbed Fredrickson from behind and pulled him to the ground, stabbing and hitting him on the way down.

As he was being dragged from the truck, Fredrickson reached up and turned off the truck, pulling the keys from the ignition and throwing the keys away from the truck. Fredrickson then stood up, and Kennedy, who had gotten out of the truck, threw more liquid accelerant on him, lit a ...


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