State v. Fletcher

STATE OF NEBRASKA, APPELLEE, v. ROBERT D. FLETCHER, APPELLANT.

No. A-16-1042.

NEBRASKA COURT OF APPEALS

January 30, 2018

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the District Court for Cherry County, MARK D. KOZISEK, Judge, on appeal thereto from the County Court for Cherry County, ALAN L. BRODBECK, Judge. Judgment of District Court affirmed.

Douglas J. Peterson, Attorney General, and Melissa R. Vincent for appellee.

Robert D. Fletcher, pro se.

PIRTLE, BISHOP, and ARTERBURN, Judges.

ARTERBURN, Judge.

I. INTRODUCTION

Robert D. Fletcher appeals an order of the district court for Cherry County which affirmed a county court jury verdict finding him guilty of third degree assault following trial. On appeal, Fletcher argues the district court erred in affirming various rulings by the county court before, during, and after trial. For the following reasons set forth below, we affirm.

II. BACKGROUND

Fletcher was charged by complaint in the county court for Cherry County with assault in the third degree, a Class I misdemeanor, on August 22, 2014. A jury trial was held and the jury rendered a guilty verdict on July 21, 2015. We will set forth the factual basis presented at trial and the evidence adduced that is pertinent to the issues raised on appeal.

At the time of trial, Robert Joseph, the alleged victim, was the proprietor of a restaurant in Cherry County, Nebraska. Joseph was leaving his restaurant by vehicle on the night of August 8, 2014. He had agreed to help a relative bartend a large event at another establishment that evening. Joseph left his restaurant at approximately 10:20 p.m. In order to leave his restaurant and travel to his destination, Joseph had to enter a four-lane divided highway. Joseph turned right onto the highway, traveling west. He entered the northernmost lane, which was the furthest right-hand lane on the highway. At this point, Joseph noticed a fast moving vehicle in the southernmost lane of the westbound highway. He identified the vehicle as a black pickup truck. Joseph described the pickup as following him too closely. He testified that the pickup was following so closely that he could not see the headlights of the pickup behind him.

Shortly after entering the highway, Joseph arrived at the intersection he intended to turn towards his destination. He turned right at a traffic signal off of the highway onto a main thoroughfare in Valentine, Nebraska. Joseph testified that the black pickup caught up with his vehicle and was parallel with his vehicle on the street. He engaged the brakes in order to let the black pickup pass him, when the pickup suddenly entered his lane. Joseph's vehicle struck the rear of the black pickup. The vehicle came to a complete stop on the street.

Joseph began to exit his vehicle. According to Joseph, while he was in the process of exiting, Fletcher appeared at his driver's side door and struck Joseph twice in the face with his fist. Joseph moved towards the rear of his vehicle and attempted to call the police. However, his phone was connected to his vehicle, so he was unable to speak with the 911 operator on the phone until he realized it was connected to his vehicle. Joseph testified that Fletcher was yelling homophobic slurs at him and attempting to entice him into a fight. After Joseph finished the call to the 911 operator he informed Fletcher that he had called the police. Joseph then told Fletcher "I've called the cops. This thing is over. If it would make you feel better, you can hit me again." Fletcher then struck Joseph again. Joseph testified that he did not know Fletcher and that he had no history of incidents with Fletcher.

The State also called Officer Jamon Slama as a witness. Slama testified that he was dispatched to the incident between Joseph and Fletcher on August 8, 2014. Slama indicated that Joseph had a red, swollen cheek. He also detailed that Fletcher's pickup had damage on the rear passenger side bumper and Joseph's vehicle had damage to front driver's side bumper. Slama did not observe any injury to Fletcher. Slama photographed the scene and took a written statement from Joseph. Fletcher was interviewed by Slama but declined to provide a written statement.

Fletcher, acting as his own attorney, called four witnesses. He called his grandniece and his daughter. The girls were passengers in Fletcher's pickup when the incident occurred. Both girls were minors at the time of the incident. Their testimony was consistent with one another, and fairly consistent with Fletcher's own testimony. Fletcher also called his friend, Ron Monroe, who arrived after the incident had occurred. Finally, Fletcher testified in a narrative form as to how the events unfolded that evening.

Fletcher testified that he, his daughter, and grandniece were leaving a family friend's property in his black Dodge pickup the night of August 8, 2014. They had been riding Fletcher's horses which were kept on the property. As they were driving on the highway towards Fletcher's place of business, a white pickup truck entered the highway and cut Fletcher off. Fletcher testified he stated, "Okay, I'm not going to put up with that kind of nonsense, and I don't have to." He thenproceeded to follow the white pickup. The two vehicles reached a traffic signal where the white pickup turned right from the right-hand lane. Fletcher then turned right from the left-hand lane. Fletcher stated that he did not know who was driving the white pickup at the time, but, "I knew he was somebody I wanted to have a little chat with." Fletcher contemplated how he would be able to stop the white pickup. He testified that "[h]e would have to stop. And at that time, when he did stop, I'll guarantee, I'm going to get him out of that pickup one way or another." Fletcher attempted to pull in front of the white vehicle and then engage his brakes. At this point, the white pickup collided with Fletcher's pickup.

Fletcher began to exit his vehicle. He testified that when he exited the vehicle, he looked around because, "When you're getting out to knock someone on their butt, you always look around." Fletcher stated that the driver of the white pickup, who he now knows to be Joseph, started coming towards him. Joseph threw a punch at Fletcher, but missed. Joseph's fist caught a leather strap attached to Fletcher's front pocket and Fletcher's cellular phone. This resulted in Fletcher's front shirt pocket being ripped. Fletcher stated that he then struck Joseph, which knocked him down. Joseph got up from the ground and told Fletcher he was driving too fast past his business. Fletcher could not recall if Joseph attempted to strike him. Fletcher did strike Joseph a second time at that point. He stated that Joseph moved to the rear of Joseph's pickup and began to call 911. Fletcher could not recall if he struck Joseph a third time.

After deliberations, the jury returned a guilty verdict. Fletcher filed a motion for a new trial on July 31, 2015, which was overruled on December 4. Fletcher was represented by counsel on this motion only. Thereafter he resumed representing himself. Fletcher filed a "Motion to Set Aside Denial of New Trial" on December 7, which was overruled on February 4, 2016. Fletcher also made several oral motions during his sentencing hearing, which were overruled. He was sentenced to 24 days' jail time on February 4. Fletcher filed an additional motion for new trial on February 25. He filed his notice of appeal to the district court for Cherry County on March 3. The county court for Cherry County held a hearing on the second motion for new trial on March 10, but never ruled upon it. The district court held a hearing on Fletcher's appeal on July 15. The district court affirmed the jury verdict and the county court's pretrial and posttrial rulings on October 6. Fletcher filed the instant appeal on November 3.

III. ASSIGMENTS OF ERROR

Restated and consolidated, Fletcher assigns the district court erred in affirming the county court in the following manner: (1) denying Fletcher's pretrial motion to dismiss based on speedy trial grounds; (2) allowing impermissible evidence to be given to the jury during deliberations; (3) failing to find that he received ineffective assistance of counsel on his first motion for a new trial; (4) finding the State had produced adequate discovery under the discovery order; (5) overruling his motion to continue trial; and (6) overruling his motions for a new trial.

In addition, Fletcher assigned, but did not argue the following assignments of error: (1) that the district court erred in affirming the county court's ruling to exclude hearsay evidence and (2) that the district court erred in affirming the county court's refusal to hold a witness in contempt of court for perjury. An alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error to be considered by an appellate court. State v. Chacon, 296 Neb. 203, 894 N.W.2d 238 (2017). Therefore, we will not consider these assignments of error.

IV. STANDARD OF REVIEW

In an appeal of a criminal case from the county court, the district court acts as an intermediate court of appeals, and its review is limited to an examination of the record for error or abuse of discretion. State v. Pester, 294 Neb. 995, 885 N.W.2d 713 (2016). Both the district court and a higher appellate court generally review appeals from the county court for error appearing on the record. Id. When reviewing a judgment for errors appearing on the record, an appellate court's inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. Id.

In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by such rules; judicial...