State v. Fletcher, No. A-08-723 (Neb. App. 9/1/2009)

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STATE OF NEBRASKA, APPELLEE, v. BARRY W. FLETCHER, APPELLANT.

No. A-08-723.

Court of Appeals of Nebraska.

Filed September 1, 2009.

Appeal from the District Court for Lancaster County: JEFFRE CHEUVRONT, Judge. Affirmed.

Dennis R. Keefe, Lancaster County Public Defender, and Robert G. Hays for appellant. Jon Bruning, Attorney General, and Kimberly A. Klein for appellee.

INBODY, Chief Judge, and SIEVERS and CASSEL, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

INBODY, Chief Judge.

I. INTRODUCTION

Barry W. Fletcher appeals his convictions of burglary, theft by unlawful taking, possession of burglar's tools, and two counts of theft by receiving stolen property and the sentences imposed thereon.

II. STATEMENT OF FACTS

In the early morning hours of March 19, 2007, Matthew Hitzel discovered a stranger in the kitchen of his Lincoln, Lancaster County, Nebraska, duplex. Earlier that morning, at about 12:30 a.m., one of Hitzel's three roommates, Josh Compton and Compton's girlfriend, Nicole Schultz, were leaving the duplex through the front door, when Schultz saw a man standing in front of the kitchen window of the duplex about 12 to 15 feet away from her. Schultz did not know the man, but she could see him from the lights in the kitchen, allowing her to get a good look at his face. As Schultz watched the man, he pretended to fumble with something and then walked to his vehicle. Compton then exited the duplex, and they left in his car, observing the man sitting on the driver's side of his vehicle, a compact, red four-door car, as they passed by. During the 2-minute encounter, Schultz testified that the man looked directly at her three times—twice by the window and maybe once on his way to his car. After Compton and Schulz started driving away, Compton looked in the rearview mirror and saw the man get out of the vehicle and walk toward the duplex. A little while later, Compton called Hitzel and told him that he had seen a man wandering around outside their duplex and that he thought the man might have gone inside the duplex.

Hitzel left his room to investigate. He entered the kitchen, which was well-lit, and he encountered a man who had just opened the door and stepped inside the kitchen. Hitzel, who was about 6 feet away from the man, stared at him for 10 to 15 seconds before the man fled. Hitzel immediately noticed that an amplifier was missing and ran upstairs and told another roommate, Brett Ketter, that they had been robbed. Ketter ran outside to try to locate the intruder and saw a small, red four-door car leaving the area. Hitzel reported the incident to police shortly before 1 a.m. and described the intruder as a black male, about 5'10" and 170 pounds, having a shaved head, wearing jeans and a jean jacket, and in his late 20's or early 30's. Hitzel later noticed that he was missing the amplifier head, cords, and pedal switch.

Shortly after 2 a.m., Officer Steven Berry responded to a report of a larceny from an automobile that was in progress at 28th and U Streets in Lincoln. The report indicated that a person seen breaking into cars had been observed driving a small, red four-door car. Berry was in the area of the report and observed one red car in that area with only one party in the car. Berry turned off the headlights of his cruiser to try to observe the red car without alerting the driver to his presence, but as soon as he reactivated his cruiser's headlights, the driver's door opened and the driver took off on foot. The driver left the car door open and left the car running and the lights on. Berry pursued the driver, shouting that he was a police officer and that the party should stop, but Berry briefly lost sight of the individual. Berry encountered another officer on T Street, and since that officer had not seen anyone run by, the officers moved parallel eastbound, Berry in the alley and the other officer on T Street. Almost immediately, Berry found the party lying face down on the porch of a house and another officer commanding the subject to show his hands. Berry estimated that from the time the subject jumped out of the car until the time he heard the officer giving commands to the subject, "probably less than 45 seconds" had passed, and that it was "[d]efinitely less than a minute." Berry testified that Fletcher was the person who was apprehended on the porch and was the person that he saw flee from the red car.

Among the items discovered in the vehicle were several car stereos, an amplifier pedal and cords which were identified by Hitzel as belonging to him, several car stereos, a flashlight, a hammer, gloves, a blue jacket, and a screwdriver.

At 3:53 a.m., back at his duplex, Hitzel was shown a photographic array and identified the picture of Fletcher as the man that had been in his kitchen. Hitzel stated that he was 90 percent sure of his identification. After looking at the photograph for a few more minutes, Hitzel stated that he was 90 to 100 percent sure. Approximately 1% weeks after the events, Schultz was shown a photographic lineup and she identified Fletcher as the man that she saw outside of the duplex. Schultz described the suspect as a black male, 5'8" and approximately 170 to 175 pounds, not particularly skinny, with short hair. Prior to viewing the photographic lineup, both Hitzel and Schultz read and signed an advisement form that stated:

You are about to view a collection of photographs.

You will be shown these photographs one at a time. You may look at a photograph for as long as you wish before moving onto the next.

If you know someone from these photographs, tell me where you recognize this person from. If you recognize the person who is responsible for the offense being investigated, tell me how sure you are.

I may not know who any of the individuals are in this group of photographs.

In any investigation it is just as important to clear the innocent as to identify the guilty. In any event, whether you recognize someone or not, the investigation will continue.

Once we have finished, I will ask you not to discuss the collection of photographs or the results of the procedure with anyone in order to protect the investigation. Do you understand these instructions?

As a result of the aforementioned events, Fletcher was charged with burglary, theft by unlawful taking, possession of burglar's tools, and three counts of theft by receiving stolen property. The information also alleged that Fletcher was a habitual criminal. He filed a motions to suppress any in-court or out-of-court identifications by Hitzel and Schultz. Following a hearing thereon, the district court found that there was no evidence that the identification procedures used were suggestive and, in fact, noted that the procedures used were "not the least bit suggestive" and that the advisement form negated any kind of suggestiveness. The court found that the witnesses had ample opportunity to view Fletcher, as his presence caused the witnesses to focus their attention on him; their descriptions were all sufficiently similar to Fletcher; the time between the witnesses seeing Fletcher and their identifications were reasonable; and Shultz' and Hitzel's levels of certainty were "more than adequate." Further, all of the photographs used in the array were of black men with various degrees of similarity and comprised a fair selection. Thus, the court found that the identification process did not violate Fletcher's due process rights.

Trial was held on April 1 through 4 and 7, 2008, on all charged counts except for one count of theft by receiving stolen property which was dismissed by the State. At trial, Schultz testified that she was 95 percent sure that Fletcher was the same person she saw outside the residence on March 19, 2007, even though Schultz had only stated that she was about 70 to 80 percent sure when she viewed the photographic lineup only weeks after the events. Schultz attributed the increase in her certainty in her identification at the time of her trial testimony to seeing Fletcher in person which reassured her that she had picked the right person out of the photographic lineup. Schultz further testified that her identification of Fletcher was based upon her memory of March 19 because she would remember Fletcher's physical features. Likewise, Hitzel identified Fletcher as the intruder that he saw in his kitchen in the early morning hours of March 19, and he stated that he was 100 percent certain of his identification. He stated he was basing his identification of Fletcher on his memories of March 19.

Berry testified that a small pry mark was found on the inside of a blue Caprice from which a stereo was taken, the width of which was similar to that of the screwdriver found in the red car. Berry testified that he has investigated approximately 100 vehicle break-ins and that screwdrivers are commonly used tools in committing that crime.

Although Hitzel was able to identify the amplifier pedal and cord found in the red car as his, Hitzel's amplifier and amplifier head were never recovered. Hitzel purchased the amplifier in December 2006 for $390.56 and the amplifier head for $695.49. A salesperson with experience in buying and selling musical equipment testified that he would offer to pay between $640 and $800 for such an amplifier and amplifier head that were 4 months old and in pretty good condition, similar to the ones stolen from Hitzel. He further testified that he would offer to sell the items for between $800 and $1,000.

Mphatso Bokosi testified that on the evening of March 18, 2007, she parked her 1996 white Chevrolet Cavalier in front of her apartment building in Lincoln and locked the door. The next morning, Bokosi noticed her car's trunk was open, the dash was taken out, the compact disc (CD) player had been removed, and there was a strip gone on the door. Bokosi identified one of the car stereos that was removed from the red car from which Fletcher was caught fleeing as...