State v. Kidder

299 Neb. 232

908 N.W.2d 1

STATE of Nebraska, appellee,

v.Matthew J. KIDDER, appellant.

No. S-16-1124

Supreme Court of Nebraska.

Filed March 9, 2018.

Thomas C. Riley, Douglas County Public Defender, L. Robert Marcuzzo, Omaha, Douglas A. Johnson, Lincoln, and Natalie M. Andrews for appellant.

Douglas J. Peterson, Attorney General, and Austin N. Relph, Lincoln, for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

Stacy, J.

Matthew J. Kidder appeals his convictions for first degree murder and use of a deadly weapon to commit a felony. We affirm his convictions, but find plain error in the sentence imposed on the conviction for use of a deadly weapon to commit a felony. We therefore vacate that sentence only and remand the cause with directions.

FACTS

On June 25, 2015, Jessica Nelson's mother received a telephone call advising that Nelson had not shown up for work. Her mother went to Nelson's house to check on her and discovered Nelson's body partially submerged in the bathtub, unclothed, with the water running. She was curled up in a fetal position, and one hand was clutching a cell phone charging cord. Nelson's clothes were piled in the tub near her feet. Blood was pooled under Nelson's head, and there was a ligature mark on her neck.

Police officers arrived and processed the scene as a homicide. Investigators found no point of forced entry into the home. They took photographs and collected Nelson's cell phone, the charging cord, and the clothes from the bathtub. Blood was found outside the bathroom, in the living room, and in Nelson's bedroom. Swabs were taken of the cell phone cord and the various biological substances found throughout the house. Investigators noticed Nelson's right thumbnail was bent back, so they also swabbed under her fingernails and took fingernail clippings.

An autopsy revealed bruises and abrasions on Nelson's neck, hemorrhaging in her eyes, and a ligature mark on her neck that was consistent with the cell phone cord. The cause of death was strangulation. There was also evidence Nelson had been sexually assaulted. She had a laceration and bruising in her vaginal area, as well as contusions to her head, abdomen, and bowel.

TEXT MESSAGES FROM KIDDER

Nelson's cell phone was analyzed, and detectives found what they described as "eerie" text message conversations with a telephone number later confirmed to belong to Kidder. Nelson and Kidder had known each other since childhood.

The text conversation began on February 4, 2015. The first message arranged for Kidder to shovel snow from Nelson's driveway. For the next several months, Kidder texted Nelson, often suggesting they meet up. Typically, Nelson either turned Kidder down or did not respond.

On April 16, 2015, Kidder texted saying he needed someplace to "h[a]ng out" while he waited to run an early morning errand, and he asked if he could stop at Nelson's house. Nelson agreed, but stated she would likely still be asleep and would leave the door unlocked. She told Kidder he could watch television, nap on the couch, or use the chairs outside while he waited. Later, the following text conversation occurred:

[Kidder:] Ill admit, a little part of me wanted to run in and doggy pile you, but i didnt feel like being stabbed or beat up. Lol.

[Nelson:] Lol yeah that def would've happened. Im a grouch when my sleep is interrupted unless you're [my son], then I'm less grouchy lol[.]

[Kidder:] Lol.

Maybe next time.

[Nelson:] If you want to die.

I do keep a good sized knife in my nightstand drawer.

[Kidder:] Challenge accepted.

....

We will need to lay down some ground rules though. No hair pulling, no biting. Lol.

[Nelson:] Or you could just leave me alone when I'm sleeping. Save us all the hassle[.]

Kidder continued to text Nelson regularly, and some of Kidder's messages were sexual in nature. On June 19, a few days before the murder, Kidder sent Nelson the following sequence of text messages:

[Kidder:] Scale of feeling playful stabby to murdered on my sleep.

Yeah. Trying to make a joke, and now shes mad at me. Lol.

In*

I figured itd be a funny "breaking the ice" joke since every other guy sends dick pics for their first or all communication and im the one who asked off the wall questions.

Nelson did not respond to these text messages; nor did she respond to the text message Kidder sent several days later, on the evening of June 24, asking, "Who's down to hang out or catch a movie saturday night?"

DNA EVIDENCE

Forensic analysts found two DNA profiles on the cell phone cord collected from the crime scene. Nelson could not be excluded as one of the contributors, and Kidder could not be excluded as the other contributor. The probability of someone other than Nelson and Kidder being the contributors of the DNA profiles on the cell phone cord was 1 in 254 million for Caucasians, 1 in 14.3 billion for African Americans, and 1 in 1.68 billion for American Hispanics.

The swab taken from under the fingernails on Nelson's left hand revealed similar results: Two profiles were present, Nelson could not be excluded as the contributor for one, and Kidder could not be excluded as the contributor for the other. The probability of someone other than Nelson and Kidder being the contributors to the DNA found under Nelson's left fingernail was 1 in 101 million for Caucasians, 1 in 10.6 billion for African Americans, and 1 in 936 million for American Hispanics.

A mixture of DNA was found under Nelson's right thumbnail, which was bent back. Nelson could not be excluded as the major contributor, and Kidder could not be excluded as the minor contributor. The probability of someone other than Kidder being the minor contributor was 1 in 1,550 for Caucasians, 1 in 33,330 for African Americans, and 1 in 5,800 for American Hispanics. The analyst testified that the lower probabilities were a function of the fact that only a partial DNA profile was developed.

HISTORICAL CELL SITE LOCATION INFORMATION

Detectives obtained Kidder's cell phone records from his service provider. Using historical cell site location information, detectives determined that Kidder's cell phone used a cell tower in the area near Nelson's home at 11:56 p.m. on June 24, 2015, and again at 12:02 a.m. on June 25. Almost 30 minutes later, at 12:29 a.m., Kidder's cell phone used cell towers in the vicinity of his residence.

KIDDER'S STATEMENTS

Several days after the murder, police interviewed Kidder. They noticed he had a cut on his hand, consistent with a fingernail. Kidder said he received the cut while working on June 24, 2015, but he did not report it to his employer. Kidder explained that he worked from 3 to 11:40 p.m. most weekdays and that he checked Facebook during his breaks. Kidder's workplace was near Nelson's house. Kidder provided police with a DNA sample and exemplar fingerprints and allowed police to download information from his cell phone.

Several weeks later, Kidder was taken to a police station for additional questioning about Nelson's murder. After waiving his Miranda¹ rights, Kidder was asked about Nelson and stated:

I kinda classify women into like three stages: ones I could be friends with, ones I just want to see naked, and ones I

want to sleep with.... [Nelson] was kinda in between I want to see her naked and no feelings ... just because she had a nice rack.... She had nice boobs.

Kidder repeatedly denied visiting Nelson's home on June 24, 2015—the night of the murder. But he told police he was at her home on June 23 to help her move furniture, and he made a point of mentioning he sweated heavily on Nelson's couch and mattress. At the conclusion of the interview, Kidder was arrested for Nelson's murder.

While Kidder was in jail, he called his father. The jail call was recorded. During the call, Kidder admitted he was at Nelson's house for about 20 minutes on the night she was killed.

KIDDER'S STATEMENTS TO CELLMATE

While in jail, Kidder shared a cell with Randy Anderson for approximately 20 hours. Afterward, Anderson contacted police and offered to testify about statements Kidder made to Anderson while they were cellmates. When Anderson contacted police, he was awaiting sentencing on plea-based convictions for burglary and making terroristic threats.

At trial, Anderson testified that Kidder told him the following: On June 24, 2015, Kidder saw Nelson's Facebook post about being home alone. After getting off work around midnight, Kidder went to Nelson's home and knocked on the side door. Nelson unlocked the chain on the door and let him in. Almost immediately, Kidder somehow caused an injury to Nelson's face. She screamed, and Kidder began strangling her with his hands. As they struggled, Nelson cut Kidder's hand with her fingernail. Eventually Nelson lost consciousness. Kidder then took her to the bedroom and removed her sweatpants. Kidder did not directly admit that he sexually assaulted Nelson, but he did admit that he strangled her to death with the cell phone cord, then placed her in the bathtub and ran the water to "rins[e] DNA."

Anderson also knew several details about the crime and the crime scene before they became public knowledge. For example, Anderson knew that (1) after the murder, Kidder washed his shoes and stuffed them with newspaper to dry them; (2) Nelson had a chain lock on her door; (3) Nelson was in the fetal position in the bathtub; (4) Nelson had an L-shaped sectional couch that was cut during the assault; and (5) Nelson was wearing sweatpants the night she was killed.

EVIDENCE FROM KIDDER'S LAPTOP COMPUTER

After Kidder was arrested, police obtained a warrant to search Kidder's home. One of the items seized pursuant to the warrant was a laptop computer found in Kidder's bedroom. A few days later, police obtained a second search warrant, authorizing an examination of Kidder's laptop computer to search and copy the following data: user account information, media files such as images and videos, document files, Internet browsing history and associated cache files, email...