State v. Myers

290 N.W.2d 660, 205 Neb. 867, 1980 Neb. LEXIS 806

• Court: Nebraska Supreme Court
• Decided: April 1, 1980
• Docket: 42839
• Status: Published

Opinions

Clinton, J.

The defendant, Fred W. Myers, was charged with murder in the first degree in having shot and killed his father at their home in Louisville, Nebraska. After a court-entered plea of not guilty, the defendant was tried before a jury, found guilty of murder in the second degree, and sentenced to life imprisonment in the Nebraska Penal and Correctional Complex.

On appeal to this court, defendant contends that the trial court erred in two matters: Failure to sequester the jury during a break in the trial, and allowing a nonexpert witness to give opinion testimony as to the sanity of the defendant. We affirm.

The evidence indicates that on the evening of September 12, 1978, the defendant and his father were both at home. The county sheriff and a deputy came to defendant’s house to inform him that his son, John Myers, was going to be placed in a temporary foster home. While John Myers was gathering some of his clothes and personal items, the defendant spoke briefly with the sheriff. He showed the sheriff that his father (John’s grandfather) was passed out from drunkenness again, and stated that he would like to have his father committed for treatment of his alcoholism. A short time later, after the sheriff had left and was en route to Cedar Creek, he received a call telling him that there had been a shooting at the Myers home. Upon returning there, the sheriff talked to the defendant and arrested him without further incident.

The fact that the defendant did shoot his father has never been in issue, since the defendant told both the sheriff and another person about the shooting. However, an issue was raised concerning the sanity of the defendant at the time of the shooting. The defendant claims it was error to allow one of the investigating officers, Sheriff Fred Tesch, to express his opinion as to the sanity of the defendant on the night of the shooting.

The rule in Nebraska has always been that a non-expert with an intimate personal acquaintance may be allowed to testify as to the sanity or insanity of a defendant. In Torske v. State, 123 Neb. 161, 242 N. W. 408 (1932), the court dealt with a similar problem and stated the following: “Nonexpert witnesses who have an intimate personal acquaintance with and an opportunity to observe the actions and demeanor of a person, before, at and after the time in question, may be permitted to testify as to his sanity or insanity when they have stated the primary facts which support their conclusion.” This rule was later approved in Noble v. Sigler, 244 F. Supp. 445 (D. C. Neb., 1964), aff’d. 351 F. 2d 673, cert. den. 385 U. S. 853, 87 S. Ct. 98, 17 L. Ed. 2d 81 (1966). See, also, Bothwell v. State, 71 Neb. 747, 99 N. W. 669 (1904); People v. Wright, 58 Mich. App. 735, 228 N. W. 2d 807 (1975); People v. Gilbert Johnson, 52 Mich. App. 560, 218 N. W. 2d 65 (1974). The jury may weigh this opinion testimony and determine its credibility, but the mere fact that it is given by a nonexpert witness does not make it inadmissible if the witness qualifies as an intimate personal acquaintance of the accused.

The evidence indicates that the nonexpert witness, Sheriff Tesch, had the necessary intimate personal relationship with the defendant. The sheriff had dealt with and known the defendant for some 15 years, having observed the defendant in various emotional states. He conversed with the defendant both shortly before and after the shooting. The non-expert witness in this case clearly fits within the definition of an intimate personal acquaintance. The trial court did not err in allowing him to express his opinion on the sanity of the defendant.

The defendant also contends that the court erred in failing to sequester the jury during trial. The jury was impaneled and sworn on April 12, 1979. Due to the Easter holidays, trial did not begin until April 16, 1979. In State v. Robbins, ante p. 226, 287 N. W. 2d 55 (1980), the court stated that the determination of whether or not a jury should be sequestered during the trial of a criminal case is left to the discretion of the trial court. The defendant has produced no evidence at all that any jury tampering or misconduct occurred during the 4-day break from April 12 to April 16. The trial court did not abuse its discretion in this matter. We find both of defendant’s assigned errors to be without merit.

Affirmed.