Petition — Rife v. Nebraska

83-843 FILED

NOV 21 1983

ALEXANDER L. STEVAS,

CLERK

In The

Supreme Court of the United States

October Term, 1983

No.

KEVIN RIFE,

Petitioner,

vs.

STATE OF NEBRASKA,

Respondent.

Oo 0- 0

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF NEBRASKA

o-——- 00

RICHARD J. BRUCKNER

Penthouse

Farm Credit Building

Omaha, Nebraska 68102

Telephone (402) 422-0800

Attorney for Petitioner

PRIESMAN GRAPHICS — OMAHA, NEBRASKA

QUESTIONS PRESENTED FOR REVIEW

1. Whether the defendant, who was nineteen years of age;

5'-2” tall; weighed 109 pounds; had stopped growing in the 7th

grade and began losing his hair due to a thyroid condition;

was on thyroid medication; was a slow learner; with no pre-

vious arrest record of any kind; and did not know an attorney,

was denied his right to counsel during isolated interrogation

when his request to telephone his parents so they could con-

tact an attorney for him was denied.

2. Whether the police interrogator’s failure to advice the

defendant, during interrogation, that he had the right to cease

the questioning at any time violated defendant’s rights to due

process.

3. Whether the state exhibiting a video tape to the jury

portraying the body of the victim at a gruesome murder scene

and which did not aid the prosecution witnesses or the pa-

thologists, in a trial where voluntariness of confessions was

an issue for the jury, violated defendant’s right to due process.

4. Whether defendant’s confessions were legal.

=

TABLE OF CONTENTS

Page

Questions Presented For Review ...............:ccseeeeeeeseeees i

ESSERE ISRAEL? TO 1

i sedasonsevontinpene

I anand descbsbvseubcnesonaressassncnsonenceee

TNE tind is Lira oeiepinneioaieboeatierndewibedecsounseneneee 15

I. Petitioner’s unlawful detention, illegal arrest,

denial of right to counsel and failure to properly

advise him of his rights was a denial to petitioner

of due process and equal protection of the law:

His subsequent alleged confessions were illegal

ESERIES EAR EC a 15

II"The state’s use of gruesome, inflammatory and

prejudicial photographs and video tapes inflamed

and prejudiced the jury and denied appellant his

I cio cic siiascscennentarnctbubeasabtocbodbens 27

ss cosesitennisostonsorens 29

Appendix to Brief:

Nebraska Supreme Court Judgment .................:ccsc00000 App. 1

TABLE OF AUTHORITIES

CASES CITED

Rs SN CU IUINy FF catpesecoveccescocerecsccecosncscecescvee 15, 23

Dougherty v. Maxwell, 376 U.S. 202 .0.........cccccscceseeeeeees 23

Gallegos v. State, 152 Neb. 841, 43 N.W.2d 1.............. 17

Greenwald v. Wisconsin, 390 U.S. 519, 20 L. Ed. =

a | 27

McLeod v. Ohio, 378 U.S. 582........ , 23

Mallory v. U.S., 354 U.S. 490.......ccccsccccsscssssocosssscessoosoeee 18

TABLE OF AUTHORITIES—Continued

Page

Michigan v. Arizona, 384 U.S. 436 .......cccsssessrsereeeeees 18

Miranda v. Arizona, 384 U.S. 436............:cccceceeeseeseeeeees 18

Rhode Island v. Innis, 466 U.S. 291 (1980) .....2............ 19

Sy ei SEU OI, WU i sa ccsepcninisasensiieenimentnoetin 23

Townsend v. Saine, 372 U.S. 293...........ccccsscceeesseeeees 25

United States v. Alexander, 428 A. 2d 42, 51 (D.C.

i a ho wc nnnbeiieeienniaiesinladiisene 21

STATUTES

ny Sas a Se shemnianiioedanel 2

TEXTS

Creighton Law Review, Vol. 15, p. 213 Criminal Law 21

In The

Supreme Court of United States

oO © 7

October Term, 1983

No.

KEVIN RIFE,

Petitioner,

vs.

STATE OF NEBRASKA,

Respondent.

o-——_-0———0

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF NEBRASKA

o——-0-——0

The petitioner prays that a writ of certiorari issue to

review the judgment of the Supreme Court of Nebraska filed

in the above noted case on August 5, 1983.

o——o-———_-0

OPINIONS DELIVERED BY THE COURTS BELOW

The opinion of the Supreme Court of Nebraska (Appen-

dix A) is reported at Neb. , —N.W.2d_ petition

for rehearing was filed and denied without opinion on Sep-

tember 21, 1983.

o———_o———o

JURISDICTION

Jurisdiction of this Court is invoked pursuant to 28

U.S.C. §1257(3).

o———_0——_—_0

STATEMENT OF THE CASE

On January 24, 1982, petitioner Kevin Rife, was employed

as a bus boy at the Crown Center Restaurant in Bellevue,

Nebraska. He had graduated from high school in Bellevue

and, after being rejected by various branches of the military

services, went to work as a bus boy. He was the product of

retired military parents, and was described by his mother and

police officers as a very timid, frightened individual.

On the date in question, petitioner was 5’-2” tall and

weighed 109 pounds. He had stopped growing in the seventh

grade and began losing his hair due to a thyroid condition.

He wears thick glasses. He was on thyroid medication, was

always a slow learner, and had no previous arrest record of

any kind. His work record was excellent. Detective David

Carlson of the Bellevue Police Department best described ap-

pellant: “He was very timid, very scared of bigger kids, and

adults***. He was just a frightened individual.*** He was

afraid of people” (BE:22; Ex. 1, Page 27).

Among petitioner's co-workers at the Crown Center was

Edel Cook, also 19 years of age, and she lived in the same

apartment complex as appellant, although not in the same

building. Miss Cook and her roommate, Lori Lappin, were

co-workers of petitioner and good friends. They regarded him

as one of the gang and they rode back and forth to work on

occasion together. Kevin was a frequent visitor at their apart-

ment, at least four or five times per week. They were referred

to as “The Three Muskateers”’.

Miss Lappin described Edel Cook as athletic, 5’-10’,

weighing 135 pounds. She was engaged to marry George Mar-

berger, a soldier stationed in Germany, although she dated

other individuals and, on occasion, stayed overnight with

them; both at her apartment and their places. Edel Cook did

drink beer, whiskey, had a bottle of sloe gin in her apartment,

and did smoke marijuana (she had her own bong), but the

witness never saw her take pills (BE:190-197). Detective David

Carlson verified that the victim, Edel Cook, while engaged to

be married, did go with and have sexual relations with various

individuals who were questioned in this case (BE:22, Ex. 1,

Page 70, 71), including soul brothers and one Tony Caneco,

a former heroin addict, who was questioned and whose lie

detector tests were inconclusive (BE:22, Ex. 1, Page 20). Miss

Lappin related to Detective Carlson that Miss Cook and Ca-

neco “had been getting high on pot quite a bit just prior to

January 24, 1982” and that Miss Cook stayed with Caneco

over in Omaha on January 20, 1982 (BE:22, Ex. 1, Page 19,

20). |

On the night of January 23, 1982, Edel Cook and Lori

Lappin attended a party in Bellevue. They returned home

and a girl-friend stayed overnight with them. They drank beer,

ate pizza and drank some whiskey (BE:176-177). On the morn-

ing of January 24, 1982, Edel Cook went to work and Lori

Lappin left the apartment at 11 o’clock A.M. to attend church

with her boyfriend.

Lori Lappin and Mark Hensley returned to the apart-

ment at 8 o’clock P.M. that evening and, upon opening the

door, discovered the body of Edel Cook on the sofa in the

living room. The police were called and the investigation be-

gan.

During the early morning hours (2:30 A.M.) on January

25, 1982, petitioner was interviewed by Detective David Carl-

son at the police station for about 25 minutes (BE:11-12). The

interview consisted of background material on the victim, the

fact they worked together and petitioner’s whereabouts on

Sunday, January 24, 1982. Petitioner was not a suspect at the

time of this interview (BE:11; 7-8).

On Wednesday, January 27, 1982, Detective Carlson and

Officer Jeanette went to petitioner’s parent’s home and in-

terviewed Mr. and Mrs. Carl Rife (BE:25; 1-25). The offices

were checking on appellant’s whereabouts on the day of the

murder. They ascertained petitioner had been at his parent’s

home all day Sunday working on his car and, approximately,

3 o’clock P.M., his mother took him to the grocery store and

then dropped him off at his apartment.

Detective Carlson learned that petitioner had a thyroid

deficiency problem and how it affected him mentally and

physically. He was informed of petitioner’s fears, that he was

timid and afraid of adults and bigger kids, and would readily

take the blame for things others had done. During this half

hour interview, the police officers had a complete picture of

appellant through the willing cooperation of his parents

(BE:28; 1-12). In fact, after the officers left, petitioner’s par-

ents called them back to their home and discussed appellant’s

condition, and the fact that he had been ill that week and

was still sick and vomiting that day (Wednesday, January 27,

1982) (BE:734; 1-17). The parents further described appel-

lant’s grief over the death of his friend, Edel Cook. ©

On Thursday, January 28, 1982, Officers Jeanette and

Stednitz went to appellant’s apartment to discuss alleged dis-

crepancies in appellant’s whereabouts on Sunday, the day of

the murder. Petitioner readily admitted his error in time as

to when his mother dropped him off at his apartment. Peti-

tioner further consented to a search of his apartment and

various items were seized, including clothing, hair samples,

and scrapings from his door (BE:22, Ex. 3, pp. 8-9).

None of the seized items were connected to the murder

and the majority were not used at the trial.

At the conclusion of this interview, Officers Jeanette and

Stednitz asked petitioner to report to the police station at 1

o'clock P.M. on that date. “We’c like to take your finger-

prints” (BE:780; 9-15). “We’re fingerprinting people who had

been in the apartment” (BE:22, Ex. 3, p. 30).

Kevin Rife indicated he was going to Miss Cook’s funeral

and would report to the police station immediately afterwards.

Kevin reported to the police station promptly at 1 o’clock

P.M., was fingerprinted, and taken into the police “interview

room .

Detective David Carlson and Captain Donald J. Carlson

are graduates of the John Reid School of Criminal

Investigation’ and their methods used in this case conform

to the instruction given at the Reid School.

The Bellevue Police interrogation room measures 6 feet

wide by 7 feet long, is windowless, and has a one-way mirror

concealed behind a picture on the wall (BE:479; 2-25) the

room is completely bare and contains a small table (3’ x 4’) in

the corner and two straight back chairs. Detective Carlson

followed his John Reid instructions in interrogation and sat

very close to the subject. He maintained eye contact with the

accused at all times and, prior to the interrogation, he had

obtained the necessary background information on the peti-

tioner’s physical and emotional condition. He hd gained pe-

titioner’s confidence through prior interviews and, in this

setting, began his twelve hour interrogation of Kevin Rife.

He was well aware that Kevin was easily intimidated and was

a follower, that he was afraid of bigger people and adults

(BE:485; 1-25).

The record reflects that Detective David Carlson stands

6'-3” tall and weighed 190 pounds. Petitioner stood 5’-2” tall

and weighed 109 pounds (BE:491; 9-12). The court has only

to look at Exhibit Number 19 to determine appellant’s stature.

Detective Carlson and petitioner were in the interroga-

tion room alone and Carlson commenced the interview by

discussing Edel Cook's funeral. The officer had not at anytime

prior to the interrogation indicated to appellant or his parents

that Kevin Rife was a suspect in a first degree murder case

(BE:485; 18-25). Petitioner was not so advised when he was

‘Miranda v. Arizona, 384 U.S. 436 wherein then chief Justice Warren, in discussing

John Reid's methods of interrogation, stressed that the modern practice of in-custody

interrogation is psychologically, rather than physically, oriented.

fingerprinted (BE:487; 16-18).

At the outset of the interrogation, petitioner was not ad-

vised that he was a suspect in a first degree murder case.

Detective Carlson merely filled out the top portion of a Rights

Advisory form (BE:128; Ex. 11) and handed it to appellant to

read. The officer did not even bother with the rote recitation

of the Miranda warnings. He assumed appellant read the form

and he then had appeliant initial the questions on the bottom

half of the form: “Fill it in and then just put your initials by

it so that it’s, you know, your hand writing” {BE:784; 1-12).

The interrogation followed the Reid prescribed form. The

officer began the interrogation by confronting the appellant

with: “Why are you telling all of these lies?” (BE:492; 14-25).

He told petitioner the police had his boots, clothing and jacket

and they had blood on them (BE:783; 1-3); an untrue fact.

He told petitioner he was lying about the time he returned

to his apartment from his parent’s home on Sunday, and that

he lied about a telephone call from his mother. These facts

had been corrected with the police department on Wednesday

(BE:493; 1-25). They told him they had a witness who saw

him at the apartment; an untrue statement (BE:791; 8-15).

Detective Carlson never, at any time during the first in-

terrogation session, from 1 P.M. until 3 P.M., or during any

other of the subsequent sessions, advised appellant he had

the right to cease the questioning if he so desired (BE:494-

495).

Following prescribed procedure, the officers interrogated

petitioner from 1 P.M. until 2:59 P.M. Then, a tape recording

was brought into the room and a taped statement was taken

fromm petitioner (BE:494), which lasted twenty-five minutes.

At the conclusion of the taped statement, petitioner was told

to write out what he had related on the tape recording.

Again, he was not read his Miranda rights. He was not

under arrest and he was not advised he was being charged

with first degree murder (BE:498-499). He was handed a form

to read. It took appellant an hour to write out the written

statement (Ex. 52, BE:459). For the next five and one/half

hours, Captain Donald Carlson and Detective David Carlson

talked to appellant regarding his taped statement and his

written statement (BE:501-502). Various items were removed

from the confessions; the fact that drugs were involved; the

fact that liquor had been consumed (BE:787, 7-25); the fact

that acid pills were involved. No sexual incidents were men-

tioned in the first tape or the written confession (BE:504,

505) “Q. That was put in the second tared statement?; A.

Yes” (BE:505; 1-3).

Petitioner was denied permission to telephone his par-

ents:

Q. Did they ever at anytime tell you you could call a

lawyer or call your parents?

A. I’d asked them one time if I could, and if I could call

my parents — Well, he said, you know, ‘If you want

a lawyer, you can get one’, and he said, ‘No, We'll just

have Detective Jeanette go over there—’

Q. Why did you want to call your parents/

A. So they can get a lawyer (BE:787-788).

Petitioner informed the police prior to the first taped

confession that he wanted to telephone his parents so they

could contact an attorney. He did not know any attorneys and

had never used an attorney (BE:788; 1-18).

The foregoing facts are corroborated in the record be-

cause Detective Jeanette went to petitioner’s parent’s home

at 4:30 P.M. on the date in question. Jeanette did not recall

if he advised the parents that they could talk to their son or

if he was entitled to an attorney (BE:22, Ex. 3, p. 10).

Detective Carlson corroborated the foregoing when he

testified petitioner would have been allowed to use the tele-

phone to call an attorney only. He was so advised by two

deputy county attorneys (BE:506, 18-19).

Petitioner’s parents requested permission to see Kevin

on Thursday, and officer Jeanette said no, they could not see

their son. Detective Carlson said he had to check the matter

with the county attorney (BE:693-694). These officers even

advised appellant’s parents it was not necessary for them to

attend the arraignment and bond setting (BE:698-699). These

officers d._ request the parents obtain clothes for appellant

to wear to his arraignment, but, specifically, said “don’t bring

them to the police station, we'll come pick them up at your

house” (BE:699; 20-22). Appellant was kept completely iso-

lated in the police station for over twenty-four hours (BE:22,

Ex. 1, p. 64).

On Friday afternoon, just prior to petitioner’s court ap-

pearance, he was permitted to telephone his father and, as

related by his father:

A. It sounded something like he thought ‘I did it’ or, ‘they

say I did it’ or ‘because’ or something, I don’t know

(BE:702-703).

10

The father .mmediately advised his son to plead not

guilty, and make them get him a lawyer. When the parents

were finally permitted to eee their son on the following Mon-

day, his first words were I didn’t do it.

Petitioner had no prior experience with police. When

questioned on direct examination regarding his interrogation,

he answered:

Q.

Okay. But are those your words on that tape recording

or is this something that Officer Carlson was telling

you?

. [don’t know what you mean.

. Well, did you just go in cold and start making that

tape, or did you talk with Officer Carlson?

He talked to me for a while.

. And that’s for how long a period of time; do you know?

I can’t remember.

More than an hour?

I’m really not sure.

Do you have an independent recollection of what went

on in that room that day?

A. Kind of, not really.

Q.

All right. Do you recall making a written statement,

Kevin?

A. He told me that was formality, is what he said. He

told me — Well, after I'd said | had done it and all

that, he went over it with me twice and he talked to,

>

Q

A.

Oo > OD >

11

what was it —

Did you write all that stuff out in that statement?

Yes, sir.

. Were you in the room alone when you wrote it out,

or was someone with you?

. He was standing there for a while, watching. Then he

left and he’d come back in at some times.

. All right. And then later at night, about 9:30 or 9:50

or 10 o'clock at night, there’s a second tape recording.

You heard that played in the courtroom?

. Yes, sir.

. Is that your voice on there?

Yes, sir.

. Were you saying those when the the thing was being

recorded?

They were — Well, when he asked me about like I

don’t look like the type of person that would take

drugs, to drink, to smoke pot and this and that, and

I don’t look like the one that would want to ruin my

life and all that, and I just agreed with him.

Had both Officers Carlson talked to you prior to the

Yes, sir.

Q. Did you ever at any time — did they ever at any time

tell you you could call a lawyer or call your parents?

12

I'd asked them one time if I could, and if I could call

my parents — Well, he said, you know, ‘If you want

‘ a lawyer, you can get one.’ and I said, ‘Well, I don’t

> O > ©

©

© >OD > © >

know any. Can I call my parents and get them?’ He

said, ‘No, we'll just have Detective Jeanette go over

there —’

. Why did you want to call your parents?

So they can get a lawyer.

. Did you make that clear to Officer Carlson?

I told him, and he just said, ‘Well, we’re going to have

Detective Jeanette go over there and talk to them.’

Was this early before you gave the first tape recording

that you said you wanted to call your parents?

. Yes, sir.

. Did you know any lawyers in Bellevue?

. No, sir.

. In Nebraska? Had you ever used a lawyer before?

No, sir.

. How long did you stay in the little room; do you re-

member, Kevin?

I'm not sure.

I mean, again, do you have a good independent rec-

ollection of what went on in the room that day?

A. Somewhat.

mie ie

13

Do you remember many forms being given you, rights

advisory forms?

©

. Yes, sir.

. Did you ever make a phone call to your parents?

No, sir. They wouldn’t allow me.

. Did you ever make a phone call to a lawyer?

No, sir.

re? @ P

And again, you said that Officer Carlson, when he

said you can call if you need a lawyer, you can call

one, and you said, ‘Let me call my parents so they

can get one’?

A. Yes, sir.

Q. After the second tape recording, then where were you,

where did they take you?

A. To jail. To the jail.

Q. Okay. Again, did you ask to make any telephone calls?

A. I asked them if I could call my parents, and they said,

‘No. They probably won’t know what to say to you,

wouldn't want to talk to you, anyway.’

The witnesses at the trial were foundational witnesses,

with the exception of Detective David Carlson who related

his version of the confessions.

The taped confessions were played for the jury and the

written statement was given to the jury, all over objection of

the defendant.

14

A video tape was made of the murder scene on the date

of the incident. It shows the victim’s body and the blood splat-

tered area. This video tape, over objection, was not only played

for the jury in the court room, it was run a second time for

the audience in the court room.

Considering all of the exhibits received in evidence, and

excluding the two taped and one written confession, the only

exhibits directed to petitioner were: Exhibit 61, a hair taken

from a washcloth (Exhibit 34) found in Miss Cook’s apart-

ment.

The state’s expert testified the hair was similar to peti-

tioner’s hair but she could not positively state it was peti-

tioner’s hair (BE:590; 1-16). She had no idea how many people

in the world, or the Sarpy County area, had similar type hair

(BE:599; 12-21).

Exhibit 15 was a handle to a German beer mug and expert

testimony by the state indicated it contained a latent palm

print that was similar to the palm print of petitioner (BE:618;

17-19). However, the record reflects the testimony of the vic-

tim’s roommate, Lori Lappin, and petitioner, that he visited

the apartment four or five times per week, and had discussed

and handled the mug in question on various occasions.

Other than exhibits 61 and 15, which were explained, the

state had no evidence linking appellant to the crime. The state

needed and secured the confessions to make its case. Without

the confessions, the charge could never have been filed.

The Motion to Suppress was good and should have been

sustained.

15

The jury returned a verdict of guilty of murder in the

second degree. Appellant was sentenced.

ARGUMENT

Petitioner’s unlawful detention, illegal arrest, den-

ial of right to counsel and failure to properly advise

him of his rights was a denial to petitioner of due proc-

ess and equal protection of the law: His subsequent al-

leged confessions were illegai and void.

The issue for determination is whether, considering the

“totality of the circumstances” Kevin Rife was illegally de-

tained, arrested, denied his right to counsel and denied his

right to due process of law. Clewis v. Texas, 386 U.S. 707, set

forth the guidelines followed by this Court.

1. Illegal Detention and Arrest

On January 24, 1982, Edel Cook was murdered in her

apartment in Bellevue, Nebraska, with ferocious atrocity. Her

body was found at 8 o’clock P.M. that evening by her room-

mate. The Bellevue Police were summoned; the investigation

and the trampling on this petitioner’s constitutional rights

began.

The principal investigators in this case, schooled in the

John Reid techniques, were Captain Don Carlson and Detec-

tive David Carlson. Petitioner was initially interviewed early

on the morning (2 A.M.) of January 25, 1982. This was merely

an interview to determine people who knew the deceased and

because they (police) had learned petitioner was a friend, co-

worker, and lived in the same apartment complex as the de-

ceased.

16

On Wednesday, January 27, 1982, Detective Carlson and

another officer visited petitioner’s parents and were fully ad-

vised of his emotional, physical and psychological condition.

They were well advised petitioner had been ill all week, could

not eat and was vomiting.

He presented a picture of a person 5’-2” who weighed 109

pounds. He suffered from a thyroid condition that severely

affected him emotionally and psychologically. He was fright-

ened of people and adults and was a slow learner, who, at 19

years of age, was losing his hair and wore thick glasses. He

was a very timid, frightened individual who had no previous

contact with the police. He was referred to as “the worm” by

his contemporaries.

Armed with these facts, four police officers went to pe-

titioner’s apartment on the morning of January 28, 1982, at

9 A.M., to discuss certain matters concerning appellant’s

whereabouts on the date of the incident. Petitioner was not

a suspect at this time. He corrected a previous statement to

the police concerning the time of his return to his apartment

on Sunday. He consented to a search of his apartment, items

were taken by the police and, at sometime, he was advised of

his rights. At the conclusion of that “interview and search”,

petitioner, who was still not a suspect, was directed to report

to the police station, after the funeral of Miss Cook.

Petitioner attended the funeral of his friend and then

reported to the police station “to be fingerprinted. We are

fingerprinting all persons who had been in the apartment.”

When petitioner reported to the police station, he was

immediately turned over to Detective Carlson and remained

-

17

in his custody from 1 P.M. on Thursday, February 28, 1982

until he was taken to the Sarpy County jail at about 1:30 P.M.

the next day (BE:507) and was arraigned and had the public

defender appointed at about 3:30 P.M.

Appellant was held and detained for over 25 hours.

Nebraska Statutes 29-406, et seq., R.R.S. Neb. 1979 com-

mand the bringing of an arrested person before a magistrate

when an arrest warrant has been issued. No warrant was is-

sued in this case. The primary purpose for taking a person

before a magistrate is so that a determination can be made

as to whether there is probable cause to believe an offense

has been committed. Section 29-506, R.R.S. Neb. 1943, Gal-

legos v. State, 152 Neb. 841, 43 N.W.2d 1.

In this case, petitioner was detained and held from 1 P.M.

on January 27, 1982 until 3 P.M. on January 28, 1982; and

the only reasonable explanation for the delay in taking the

appellant before a magistrate was: “A. (David Carlson) Be-

cause we felt we wanted to talk to him some more” (BE:22,

Ex. 1, p. 57).

It is apparent from all of the evidence here that the only

reason in detaining petitioner and not taking him before a

magistrate was so that the police could further their efforts

in attempting to obtain probable cause.

No complaint could have been filed, no warrant could

have been issued, or probable cause shown, at the time ap-

pellant reported to the police station. The police had to detain

appellant for over 25 hours, isolate him from an attorney and

his family and, through techniques and methods diametrically

opposed to our constitutional sense of justice, extract from

18

him the grounds necessary to obtain what our system of law

first requires before a person can be detained.

This court held, in applying the requirement of taking a

person before a magistrate, that delays simply to elicit ad-

missions to support the arrest, and ultimately the guilt, can-

not be upheld. Mallory v. U.S , 354 U.S. 499.

In this case, it is undisputed, and uncontradicted and

Detective Carlson testified he had extracted 1) an oral ad-

mission of guilt from petitioner prior to 2:59 P.M.; then he

taped a confession 2) commencing at 2:59 P.M. and lasting

until 3:39 P.M.; he then had petitioner write out a statement

commencing at 4:34 P.M.; 3) finally, after further interroga-

tion, changing, deleting, and adding matters, he again taped

a confession 4) commencing at 9:50 P.M. Petitioner appeared

before a magistrate the following day at 3:30 P.M. (BE:Ex. 1,

p. 65). During that period of time, he had talked only to the

police, Carlson brothers, had not been permitted to make a

telephone call and was isolated (BE:22, Ex. 1, p. 64, Lines 22-

25) with only police officers around him.

Petitioner was illegally detained and the record is unclear

as to when he was arrested, but it appears to be approximately

8 P.M. on February 28, 1982 (BE:22, Ex. 1, p. 56).

2. Denial of the Right to Counsel

One principal of law is now clear. In Miranda v. Arizona,

384 U.S. 436, this court ruled the accused must be appraised

of his constitutional right against self-incrimination and his

right to counsel before custodial interrogation can be con-

ducted by the police. The Court has also established the pro-

cedure to be followed subsequent to the warnings: if the

19

accused indicates he desires to remain silent, or if he requests

an attorney, the interrogation must cease.

The standards were further established that once in cus-

tody a person’s rights to cut off questioning must be scru-

pulously honored by the police. Michigan v. Mosley, 423 U.S.

96. Furthermore, if there is a waiver of rights, that waiver

must be freely, voluntarily and knowingly made. 384 U.S. 436.

The Miranda Court spoke of “custodial interrogation”

and that Court reconsidered the meaning of this phrase in

Rhode Island v. Innis, 466 U.S. 291 (1980).

In Innis, the defendant had been advised of his consti-

tutional right against self-incrimination upon arrest and had

requested an attorney. While enroute to the station, the two

arresting officers discussed a missing shotgun, which allegedly

had been used in the commission of the crime. One of the

officers stated that there were “‘a lot of handicapped children

in this area,” and “God forbid one of them might find a

weapon with shells and *** hurt themselves.” Innis then told

the offices he would show them where the gun was located.

Upon returning to the scene of the arrest, Innis was again

informed of his right to remain silent. He replied that he

understood his rights, but “wanted to get the gun out of the

way because of the kids in the area of the school.” Id. at 295.

The Court in Innis clarified Miranda’s definition of cus-

todial interrogation, holding that the Miranda protections

against self-incrimination are applicable whenever a person

in custody is subjected to either express questioning or its

“functional equivalent.” 466 U.S. 300-01. The functional

equivalent of express questioning refers to police words or

20

actions (excluding those normally attendant to arrest and cus-

tody) that the police should know are reasonably likely to

elicit an incriminating response from the suspect.

This more comprehensive definition of custodial inter-

rogation serves to counter the numerous police “techniques”

which do not involve express questioning of the defendant.

Hence, when a police practice is designed to elicit an incrimi-

nating response from a person, it is most likely one which the

police should know is reasonably likely to have that effect.

The Court’s interpretation of custodial interrogation,

however, does not hold police accountable for the unforesee-

able results of their words or actions. This limitation is sig-

nificant because it allows the police to expose a person to

“subtle compulsion” without violating the fifth amendment

protection against self-incrimination. To suppress a confes-

sion made during interrogation, it is necessary to establish that

a suspect’s incriminating response was the product of the subtle

compulsion that the officers should have known was reasonably

likely to elicit an incriminating response.

The Court requires an objective inquiry into the likely

effect of police conduct on a typical individual, taking into

account any special susceptibility of the suspect to certain kinds

of pressure of which the police know or have reason to know.

The Court conceded that Innis was exposed to subtle com-

pulsion, but held that fact is not controlling in the absence

of evidence establishing that the officers should have known

the defendant. The Court reviewed the record and found no

evidence that the officers were aware of Innis’ susceptibility to

21

an appeal to his conscience concerning the safety of handi-

capped children. Similarly, there was no indication that the

officers knew Innis was unusually disoriented or upset at the

time of his arrest. Thus, the Court concluded that the officers’

dialogue regarding the shotgun within the hearing of Innis

was merely an expression of their own concern and ot in-

tended to be interrogation (Emphasis supplied) c.f. Creighton

Law Review, Vol. 15, p. 213, Criminal Lew: the Miranda De-

cision and its Progeny.

The police here were well aware of petitioner’s condition,

they had investigated it prior to their custodial interrogation,

yet, in view of all of those factors, Detective Carlson did not

bother to read the Rights Advisory form to appellant. He felt

appellant understood it because his eyes traveled over the

paper.

Once Detective Carlson had petitioner in their 6 feet by

7 feet windowless, bare, interrogation room, he commenced

asking petitioner why are you telling me all these lies. we have

your boots, jacket and clothing and they have blood un them,

we have a witness, we know what happened. All of the fore-

going was untrue but was a “Reid technique” to exert subtle

compulsion on the will of appellant. c.f. United States v. Alex-

ander, 428 A. 2d 42, 51 (D.C. 1981) (during cross-examination

the interrogating officer admitted that his statement to the

accused “we know what happened,” was a technique utilized

to try to coerce the accused to talk and was thus held to be

inadmissible).

From the outset, this petitioner was not advised he was

a suspect in a first degree murder case. Carlson assumed he

read the form which indicated a homicide investigation.

Q.

A.

22

But did he understand when he filled this thing out

at about 1 o'clock on that afternoon that he was a

suspect in connection with this homicide? Did you

ever use those words?

(Carlson) No, I don’t believe I used those words

(BE:22, Ex. 1, p. 31).

If the petitioner did not understand he was a suspect in

a homicide how could he voluntarily, knowingly waive his

rights to counsel?

Q.

Okay, at that point when he indicated to you he killed

her and he started to shake and was upset did you at

that time say, ‘Well, Kevin, you’ve given a confession,

or you confessed to a murder, you have the right to

an attorney?

(Carlson) No.

. Did you go over the Rights Advisory form again with

him?

. (Carlson) No, I did not.

Q.

A.

Or tel] him he could call his parents?

No (BE:22, Ex. 1, p. 38).

Detective Carlson had conferred with the county attorney

during the interrogation and “***on him making any calls,

and that was only to an attorney he could make a phone call

to after he was arrested. This was later in the afternoon”

(BE:22, Ex. 1, p. 39).

It would appear the officer was under the mistaken

impression petitioner could only call an attorney after he had

23

been arrested, and later in the afternoon.

Petitioner’s testimony, unrebutted, was that he did not

know an attorney. “Can I call my parents and get them, and

he said no”. He did not know a lawyer, had no prior contact

with police, and always relied upon his parents. Yet, he was

not permitted to call them so they could call an attorney for

him.

The burden of proving a voluntary, knowingly and valid

waiver of counsel is still on the state. Rice v. Olson, 324 U.S.

786; Dougherty v. Maxwell, 376 U.S. 202; McLeod v. Ohio, 378

U.S. 582. That burden here was never met by the state.

This Court in Miranda, states that no amount of circum-

stantial evidence that a person may have been aware of his

rights will suffice.

This Court, in Clewis v. Texas, 386 U.S. 707, in discussing

the “totality of the circumstances” stated among the factors

which require a conclusion that the “confession” was not vol-

untary are:

a) During the long period of custody, petitioner was never

fully advised that he could consult counsel and have counsel

appointed if necessary; and that anything he said could be

used against him, and that he fully understood these rights.

b) The first statement was secured following an initial

taking into custody which was not supported by probable

cause, followed by 38 hours of intermittent interrogation.

c) The record inspires substantial concern as to the ex-

tent to which petitioner's faculties. were impaired by inade-

quate sleep, food, sickness and long subjection to police custody,

24

with little or no contact with anyone other than police (Em-

phasis supplied).

_ 3. Illegal Confessions

The police in this case readily admit they knew all about

petitioner when they placed him in their small interrogation

room. They had his background and Detective Carlson, who

was twice the size of petitioner readily admitted petitioner

was a frightened individual. Carlson had him in the room

alone: sat real close to him; facing him; and (approximately

2 feet away) accused him of lying. Maintained constant eye

contact.

Detective Carlson used the methods taught by John Reid

in connection with interrogation (BE:479). He knew peti-

tioner was easily intimidated and a follower (BE:485, 18-21).

Straight-back chairs were used so the suspect could not lean

back or be distracted. The interviews were not taped until

Carlson got his desired results (BF:491; 22-23). Petitioner was

never advised he was 2 suspect, never told him he could cease

the interrogation anytime he desired (BE:495; 1-4).

Carlson agreed one method of interrogation is to gain the

confidence of the accused, and sit with your knees between

his, although he stated he was one or two feet away from

appellant. Petitioner said Carlson had his knees between his

and Carlson admitted he comforted petitioner.

Given the fact that the room was only 6’ x 7’ and Carlson

was 6-3” and 190 pounds as opposed to appellant’s 5’-2” and

109 pounds, and a table in the room was 3’ x 4’, there was

very little room left to move around.

25

Petitioner was never advised he was under arrest or that

he was confessing to a crime for which he could get the death

penalty until 10 P.M. at night, 10 hours after the interrogation

began (BE:499; 11-25).

This Court has long held the principal of law that state-

ments which are not the product of a free will or a rational

intellect are involuntary. Involuntary statements must be ex-

cluded. Townsend v. Saine, 372 U.S. 293.

Not only is such a statement inadmissible, but all other

evidence obtained, either as a direct or indirect consequence

of it is inadmissible. The time has come to again impress these

principles of law on law enforcement authorities of the state.

The John Reid methods were deplored in Miranda:

From these representative samples of interrogation

techniques, the setting prescribed by the manuals and

observed in practice becomes clear. In essence, it is this:

to be alone with the subject is essential to prevent dis-

traction and to deprive him of any outside support. The

aura of confidence in his guilt undermines his will to

resist. He merely confirms the preconceived story the

police seek to have him describe. Patience and persist-

ence, at times relentless questioning are employed to ob-

tain a confession the interrogator must ‘patiently

maneuver himself or his quarry into a position from

which the desired object may be obtained’. When normal

procedures fail***the police resort to deceptive strata-

gems***. It is important to keep the subject off balance,

by trading on his insecurity about himself or his surround-

ings.

ie

26

Even without employing brutality, the third degree

or the specific strategems described, the very fact of cus-

todial interrogation exacts a heavy toll on individual lib-

erties and trades on the weaknesses of individuais.

(Emphasis supplied) 309 U.S. 227.

In the present case, Detective Carlson achieved his de-

sired results without the efficiency of the rack or thumbscrew.

He isolated and held petitioner incommunicado for 25 hours,

traded on his weaknesses, applied his “Reid technique” and

claimed victory!

4. Credibility and Reliability of the Confessions

The issue for determination is whether, considering the

‘totality of the circumstances’ petitioner’s four distinct state-

ments or confessions are credible and reliable. This can best

be illustrated by showing that in the oral admission there was

no reference to touching the victim sexually in any manner.

This was added after further interrogation. In the oral ad-

mission, drugs and acid were mentioned and included in the

first taped statement because the officers did not believe pe-

titioner was that kind of person.

It took officers Carlson 6 hours to move the sexual in-

cident into the last statement and completely removed any

reference to acid, pills or liquor from the final statement.

A complete reading of all four statements will indicate

to this Court that they are not credible or trustworthy. From

the first oral admission to the last taped statement we lose a

marijuana bong, consumption of alcohol, freaking out, con-

sumption of acid pills and have a statement showing an alleged

murder, with premeditation and malice, and completion with

27

an alleged sexual touching out of curiosity.

In Greenwald v. Wisconsin, 390 U.S. 519, 20 L. Ed. 24 77,

88 S. Ct. 1152, in a separate opinion by Mr. Justice Stewart,

he pointed out that the state hs the burden of proving “beyond

a reasonable doubt” that appellant’s decision to confess was

the product of his own unfettered will; and, in the present

case, we submit, from a totality of the circumstances, the state

wholly failed in its burden to prove beyond a reasonable doubt

that petitioner alleged statements were the product of his free

unfettered will.

Il.

The state’s use of gruesome, inflammatory and

prejudicial photographs and video tapes inflamed and

prejudiced the jury and denied appellant his right to a

fair trial.

The admission into evidence of gruesome photographs

rests in the sound discretion of the trial court, which must

determine their relevancy and weigh their probative value

against their possible prejudicial effect. 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.

In the present case, the prosecution was plowing new

ground, not only did they introduce gruesome photographs

(Ex. 21, 22 and 34) they played a video color tape (Ex. 39) of

the crime scene portraying the body of the victim, from several

angles, and the blood stained wails, sofa and floor. Addition-

28

ally, the video tape was played, not only for the jury, it was

played again for the general audience. For what purpose we

will never understand.

The photographs and video tape were cumulative evi-

dence. The autopsy report had been stipulated to and the

crime scene described in all its gruesome detail by four police

investigators. We feel the court must draw the line someplace

and the video color tape in this case went too far. Any pro-

bative value the video may have had was greatly outweighed

by the nature of the area and body depicted and so inflamed

the jury that appellant could not have had a fair trial

In essence, the state here simply used the photographs

and the video tape to orchestrate an inflamed atmosphere of

prejudice against this petitioner.

It must be remembered that the issue of voluntariness of

the confessions was an issue for the jury. The only evidence

the state had to attempt to link appellant to the crime scene

was a “similar” palm print, and a “similar” hair. These items

had been explained by appellant’s constant visits to the Cook

apartment. The state realized its evidence on the confessions

was weak and, in all probability, that it had not met its burden

of proving voluntariness. It, therefore, introduced the grue-

some pictures and the equally gruesome video tape to inflame

the jury and cement appellant’s fate.

2

29

CONCLUSION

For the foregoing reasons we urge this Court to grant the

writ prayed for.

KEVIN RIFE,

Petitioner,

By: RICHARD J. BRUCKNER

Penthouse

Farm Credit Building

Omaha, Nebraska 68102

(402) 422-0800

Attorney for Petitioner

App. 1

APPENDIX A

OPINION SUPREME COURT

OF NEBRASKA

State v. Rife

No. 82-659 — filed August 5, 1983.

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 im-

plied promises, however slight, nor by the exertion of any

improper influence. The determination of whether a state-

ment was voluntarily made necessarily turns on the consid-

eration 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 disquali-

fication of jurors does not raise a presumption that prejudice

App. 2

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‘ evi-

dence 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. ; . A photograph which illustrates or makes

clear some controverted issue in a homicide case may be re-

ceived even if it is gruesome, where a proper foundation has

been laid.

Krivoshs C.J., Boslaugh, McCown, White, Hastings, Ca-

porale, and Shanahan, JJ.

WHITE, J.

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 ap-

pellant’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 beeed upon jury misconduct during the trial; (4) fail-

ing to grant a mistrial based upon the introduction and view-.

ing 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 instruc-

tion regarding Miranda warnings. We affirm. A statement of

App. 3

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

App. 4

with blood, as was one steak knife in the drawer. The bath-

room sink and faucet were stained with blood.

During the ensuing police investigation, Kevin Isaac Rife,

a friend of the deceased, was interviewed by Det. David Carl-

son of the Bellevue police at approximately 2:30 a.m. on Mon-

day, January 25, 1982. The interview lasted 25 minutes and

related to the fact that appellant worked with the victim at

Crown Court and was living in the apartment building next

door, and to the appellant’s activities on the date of the hom-

icide, Sunday, January 24, 1982. Appellant was not a suspect

at the time the interview took place, and he told police that

he was at his parents’ home in Bellevue all day Sunday until

7 p.m.

On Wednesday, January 27, 1981, Detective Carlson and

Officer Joseph Jeanette questioned appellant’s parents, Mr.

and Mrs. Carl Rife, in an attempt to verify appellant’s where-

abouts on the date of the murder. They ascertained that ap-

pellant had been at his parents’ home until 3 p.m., when his

mother dropped him off at his apartment.

At 9:15 a.m. on Thursday morning, January 28, 1982,

Officer Jeanette and Det. Dick Warren went to appellant’s

apartment to discuss the discrepancy regarding appellant’s

whereabouts on Sunday, the day of the murder. The appellant

stated that he was nervous and scared when police came over

and he just told them that he was not at his apartment that

day. The officers then read the appellant his rights per Mi-.

randa. The appellant consented to a search of his apartment,

and the officers asked him if he would come to the police

station at 1 p.m. so he could be fingerprinted and interviewed

by Detective Carlson.

ar

App. 5

At approximately 1:15 p.m. on Thursday, January 28,

1982, the appellant met Detective Carlson at the Bellevue

police station to be fingerprinted, which took roughly 20 min-

utes. Following the fingerprinting, Detective Carlson directed

the appellant to an interview room, where he was again ad-

vised of his Miranda rights. Detective Carlson filled in the

appellant’s name, address, date of birth, highest grade of ed-

ucation, and that the interview was being conducted in con-

nection with a homicide. The rights advisory form was handed

to the appellant and he was asked to read the top portion

that had been filled in. Detective Carlson testified that ap-

pellant appeared to read the top portion of the form and he

then read to appellant each of his rights from a blank form

and asked him to follow along on the filled-in form. Appellant

was further directed to answer aloud after each question and

mark his answer under each question in the space provided.

The appellant acknowledged that he was aware of each of his

rights and stated that he was willing to make a statement and

waive the services of an attorney.

Detective Carlson confronted the appellant with several

statements he had made that conflicted with information the

Bellevue police had. The appellant was questioned for about

15 minutes. When asked, “Why are you telling all these lies?”

the appellant responded, “Because I killed Edel.” The ques-

tioning continued for 45 to 50 minutes to determine the details

of the murder. The appellant stated he saw Edel’s car outside

and a light on in her apartment. He went in and Edel gave

him some acid or speed, and he began to freak out. At this

time Edel was on the couch and rolled over as if she were

going to go to sleep. He became angry and hit Edel several

times over the head with a vase, until it shattered. He then

App. 6

picked up a larger vase, and as he struck her again the second

vase also broke. The appellant stated that he realized what

he had done and that if Edel lived he would be in big trouble.

He went into the kitchen to get a knife, took the knife out

of the top drawer in the kitchen, and went back to Edel and

cut her throat twice from left to right. He then went into the

bathroom to wash the blood from his hands.

Detective Carlson obtained a tape cassette recorder upon

which the appellant and he repeated basically the same con-

versation. Appellant was again read his Miranda rights. The

tape-recorded statement was concluded at approximately 3:25

p.m. The appellant was asked to make a written statement

pertaining to the crime, and to sign it. The appellant agreed.

The appellant was furnished a meal and was then questioned

again at 9:30 p.m. to clear up inconsistencies about the drugs

he had taken and whether or not he had sexually assaulted

Edel. The appellant was again given the Miranda warnings.

In the 9:30 p.m. confession, which was taped, the appellant

stated that he had not taken any drugs and that he had cut

Edel’s shorts with the knife, after her throat had been cut,

and placed his middle finger in her vagina. Appellant did not

at any time request an attorney or that the questioning stop.

The appellant was charged with first degree murder, subse-

quently convicted of second degree murder, and sentenced to

30 years of hard labor.

We will discuss the assignments in order.

“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.

—

App. 7

The determination of whether a statement was voluntarily

made necessarily turns on the consideration of the totality of

the circumstances in any particular case.” State v. Hunsberger,

211 Neb. 667, 669-70, 319 N.W.2d 757, 759 (1982); State v.

McDonald, 195 Neb. 625, 240 N.W.2d 8 (1976).

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. State v. Thompson, 198 Neb.

48, 251 N.W.2d 387 (1977).

The appellant argues that “Detective Carlson did not

bother to read the Rights Advisory form to appellant. He felt

appellant understood it because his eyes traveled over the

paper.” Brief for Appellant at 31. This contention is simply

not borne out by the record. Appellant was verbally advised

of his constitutional rights on at least four separate occasions.

Both the testimony of the appellant and Detective Carlson

concur that appellant was asked to read the top portion of

the advisory form, which contained information personal to

himself, and then was verbally advised of his constitutional

rights and asked to acknowledge yes or no after each question.

The appellant also argues that because the police knew

before they questioned him that he was 5 feet 2 inches tall,

weighed 109 pounds, lost his hair due to a thyroid condition,

was a follower and very timid, that these facts, coupled with

a small, windowless interrogation room, rendered his confes-

sion involuntary under the totality of the circumstances. We

do not agree. The trial court found that the appellant was at

all times fully advised of his constitutional rights during ques-

tioning, and found that he freely and intelligently chose to

waive those rights. Appellant’s alleged requests to speak to

we

ed

App. 8

his parents could not be construed as a request for an attorney.

The appellant did not sound intimidated during his two taped

confessions, and, in fact, he went to great lengths to duplicate

for Detective Carlson the surprised sound of the victim’s voice

when he first struck her about the head with the vase before

she lost consciousness. There were no leading questions asked

or promises or threats made to the appellant in return for his

confession. The finding of the trial court is amply supported

by the record. The question of whether the appellant's state-

ments were voluntary was also submitted to the jury under

full and complete instructions. The first assignment is with-

out merit.

The appellant next alleges that the trial court erred in

failing to grant his motion for a change of venue or contin-

uance. 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. State v. Boyer, 211 Neb. 139, 318 N.W.2d

60 (1982); State v. Anderson and Hochstein, 207 Neb. 51, 296

N.W.2d 440 (1980); State v. Williams, 205 Neb. 56, 287 N.W.2d

18 (1979).

An examination of the newspaper clippings and affidavit

in support of the motion reveal no animosity or hostility di-

rected toward the appellant. While the substance of the ap-

pellant’s confession was discussed, the appellant made no

effort to have the hearing closed, and the information that.

was disseminated was nothing more than that conventionally

reported in news accounts of a trial, with the exception of one

article. The Bellevue Leader published an extensive article in

regard to the suppression hearing prior to its completion. The

App. 9

July 7, 1982, article quotes extensively from direct interview

comments made to the Bellevue Leader by Deputy Sarpy

County Attorney John Irwin: “Irwin expressed his confidence

in the confession obtained from Rife by these officers and the

techniques used with the alleged murderer. “They’re good wit-

nesses, good policemen and they follow good techniques ...

They did their job just fine. There’s nothing you could find

that they did wrong (in regard to obtaining a confession from

Rife.)’”

The public comments by Mr. Irwin appear to constitute

a serious violation of Canon 7, DR 7-107(B)(3) and (5), of the

Code of Professional Responsibility, which provides: “A law-

yer or law firm associated with the prosecution or defense of

a criminal matter shall not, from the time of the filing of a

complaint, information, or indictment, the issuance of an ar-

rest warrant, or arrest until the commencement of the trial

or disposition without trial, make or participate in making

an extrajudicial statement that a reasonable person would

expect to be disseminated by means of public communication

and that relates to:

“3. The existence or contents of any confession, admis-

sion, or statement given by the accused or his refusal or failure

to make a statement.

“5. The identity, testimony, or credibility of a prospective

witness.”

However, the record shows that the trial court was thor-

ough in its questioning in order to insure that none of the

App. 10

veniremen had a preconceived notion of the appellant’s guilt

because of the media coverage, and no person was allowed to

serve on the jury who was a subscriber to the Bellevue Leader,

or who had read the article.

The appellant has failed to show that the jury was not

impartial. Further, counsel accepted the jury without ex-

hausting all of his peremptory challenges. Thus, counsel must

have been satisfied that the jurors were fair and impartial.

The People v. Speck, 41 Ill. 2d 177, 242 N.E.2d 208 (1968);

State v. Lejeune, 248 La. 682, 181 So. 2d 392 (1965), cert.

denied 385 U.S. 845, 87 S. Ct. 37, 17 L. Ed. 2d 77 (1966).

In Bufford v. State, 148 Neb. 38, 42-43, 26 N.W.2d 383,

386 (1947), this court stated: “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 ju-

”

rors.

The trial court did not abuse its discretion in denying a

change of venue or a continuance. The motion for a contin-

uance was attached to the motion for a change in venue, as

an alternative remedy. We note from the record that appel-

lant’s motion for a continuance was more in the nature of a

procedural step to preserve his right to complain of the pre-

trial publicity rather than a genuine desire to have the trial

delayed to permit the advance effect of publicity to wane. We.

make this conclusion based upon the fact that appellant’s

counsel was satisfied with the court’s ruling which took the

combined motion under advisement until it could be deter-

mined whether an impartial jury could be selected. Once the

App. 11

jury was impaneled, the appellant did not renew his motion

for a continuance before the start of trial. Each time the mo-

tion was argued, the appellant’s counsel stressed the need for

a change in venue but did not discuss the need for a contin-

uance. The second assignment is without merit.

During the trial one of the jurors indicated that she had

watched a television report on Omaha channel 3. The appel-

lant complains that the trial court erred in failing to grant

his motion for mistrial based upon this alleged juror miscon-

duct. There is no showing in the record of the content of the

television report. One other juror during trial was found to

have had the same employer as the appellant and the deceased.

The juror stated to the court that she had worked there on

the late shift, after the murder had occurred, as an auditor.

The parties agreed to excusing her, and an alternate juror

replaced her. In the absence of a showing of prejudice, the

trial court was correct in denying the motion for mistrial.

Opportunity for prejudice or disqualification of jurors does

not raise a presumption that prejudice or disqualification ex-

ists. State v. Beasley, 183 Neb. 681, 163 N.W.2d 783 (1969).

The appellant next argues that the trial court erred in

admitting color photographs of the deceased and a black and

white video tape which showed the body as it was discovered

at the crime scene. The basis for appellant’s contention is

that in addition to the relevancy of the exhibits being out-

weighed by their prejudice, the photographs and video tape

were also unnecessarily cumulative because the autopsy report

had been stipulated to.

Admission of video tapes is generally within the trial

court’s discretion, subject to the same requirements for ad-

App. 12

mission of still photographs. State v. Brooks, 30 Wash. App.

280, 633 P.2d 1345 (1981).

Only four of the still photographs offered into evidence

were pictures of the deceased and could be considered grue-

some. Other photographs of the crime scene will not be dis-

cussed, due to the fact that counsel for the appellant also

introduced a proof sheet or series of small photographs of the

crime scene himself.

Two of the color photographs at issue show the head area

of the body of Edel Cook as it was found shortly after police

were summoned to her apartment. Detective Warren, who was

the first person to the crime scene after the murder was re-

ported, testified that both photographs accurately depicted

the body as he saw it on January 24, 1982. The third pho-

tograph and duplicate slide were taken just prior to the au-

topsy of the deceased. The pathologist testified that the

photograph and slide would be helpful in assisting him in

explaining his findings to the jury. The slide was shown to

the jury, but only the photograph was permitted to go to the

jury room. As the jury viewed the slide the pathologist pointed

out that the deceased had received several blows to the face

resulting in multiple fractures of the top portion of the skull,

with the brain exposed, fracture of the nasal bones, broken

teeth, and severe hemorrhaging about the head. He concluded

that Edel Cook was still alive from her head wounds but died

as a result of a deeply penetrating laceration in her neck,

which severed her windpipe, trachea, and jugular vein. He

testified that his conclusion regarding the cause of death was

based upon the fact that the neck wound was covered with a

red, foamy material that occurs when the trachea is severed

App. 13

and a person is still breathing. The last still photograph de-

picts the body of Edel Cook and is illustrative of the fact that

she was sexually assaulted at the time of her death. The video

tape showed the body as it was discovered at the crime scene.

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. State v. Jones, 213 Neb. 1, 328 N.W.2d 166 (1982);

State v. Williams, 205 Neb. 56, 287 N.W.2d 18 (1979).

The appellant does not challenge the foundation laid for

the video tape or photographs, and we are not persuaded that

the relevance was outweighed by the prejudice they may have

caused. 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.

State v. Jones, supra; State v. Partee, 199 Neb. 305, 258 N.W.2d

634 (1977).

Each of the photographs and the video tape that were

admitted into evidence were relevant to prove the condition

of the victim’s body, the cause of death, intent and malice,

and to corroborate the confession of the appellant that he was

intimately familiar with the details of the murder.

The appellant stipulated that the body that was found

was indeed Edel Cook and that the death certificate con-

cerning Edel Cook could be introduced into evidence without

further foundation. We have searched the record and are un-

able to find any stipulation to the cause of death in the au-

topsy, nor that the appellant had the requisite intent or malice

App. 14

for the crime. Further, appellant does not cite this court to

any such stipulation.

Under similar facts the Washington Court of Appeals

held that the admission of five photographs and a video tape

of a murder victim was not an abuse of discretion on the

grounds that they were gruesome or that they were unnec-

essary because the defendant was willing to stipulate that the

victim died of gunshot wounds. State v. Tharp. 27 Wash. App.

198, 616 P.2d 693 (1980), aff'd 96 Wash. 2d 591, 637 P.2d 961

(1981).

Further, we are unable to find anything in the record to

show that the photographs or video tape were unnecessarily

cumulative or admitted soley to influence the passions of the

jury. There was no abuse of discretion.

Finally, the appellant urges this court to find reversible

error by the trial court’s failure to add to the NJI 14.52A to

include “(e) That the interrogation may terminate at anytime

he (the accused) may desire.” Brief for Appellant at 40.

We held in State v. Price, 202 Neb. 308, 275 N.W.2d 82

(1979), that a court, even if requested, is not required to give

NJI 14.52A. The appellant was given the benefit of submitting

to the jury questions of law concerning the admissibility of a

confession under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct.

1602, 16 L. Ed. 2d 694 (1966). He will not be heard to complain

that the court did not submit additional questions of law to

the jury. The assignment is without merit.

The judgment is affirmed.

AFFIRMED.