State v. Lessley

301 Neb. 734

919 N.W.2d 884

STATE of Nebraska, Appellee,

v.Tyeric L. LESSLEY, Appellant.

No. S-18-096.

Supreme Court of Nebraska.

Filed November 30, 2018.

Thomas C. Riley, Douglas County Public Defender, Matthew J. Miller, and Natalie M. Andrews for appellant.

Douglas J. Peterson, Attorney General, and Stacy M. Foust, Lincoln, for appellee.

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

Heavican, C.J.

INTRODUCTION

Tyeric L. Lessley was convicted of first degree murder, first degree assault, two counts of use of a weapon to commit a felony, and possession of a deadly weapon by a prohibited person. Lessley appeals, arguing that the evidence was not sufficient to support his convictions and that he was entitled to a manslaughter instruction. We affirm Lessley’s convictions and sentences for first degree murder and first degree assault, affirm his convictions and vacate the sentences for use of a weapon to commit a felony and possession of a deadly weapon by a prohibited person, and remand the cause for resentencing.

BACKGROUND

Events of October 29, 2016.

Between 4 and 4:30 a.m. on October 29, 2016, Curtis Goodwin was awake in the home shared with his fiance, Suzanne Pope. The home was located on North 39th Street in Omaha, Nebraska, at the corner of 39th and Kansas Streets. Goodwin was paying bills on his laptop computer, and Pope was sleeping in a bed in the main floor living room of the residence, which the couple used as their bedroom. Also in the home was Pope’s 7-year-old daughter.

During this time, Goodwin left the home through the back door to investigate a knocking sound he heard at the front of the house. Goodwin testified that family and friends never used the front door of the residence, which faced North 39th Street, but instead entered and exited through the rear door. Indeed, pictures of the scene show that the front door was blocked from the inside by Goodwin and Pope’s bed.

Goodwin grabbed a baseball bat before leaving the house. Goodwin then walked around to his front door, where he discovered a male knocking on the door. Goodwin asked the male if he could help him. The male pointed a gun in Goodwin’s face and responded, "Yeah, n- - - - -, I’m your worst mother fucking nightmare." The male, whom Goodwin testified he did not recognize, then told Goodwin to get into the house.

The two walked around the side of the house to the back entrance. Goodwin testified that at some point along the way, he dropped the bat. Once inside, the male told Goodwin to "give me all your money and your shit." Goodwin woke Pope to tell her that someone was there to rob them. According to Goodwin, both he and Pope told the intruder they did not have any money. At that point, the intruder shot Pope, took Goodwin’s laptop, and shot Goodwin as Goodwin lunged at him.

Goodwin was able to follow the intruder out of the house and into the backyard, where Goodwin collapsed as the intruder ran down the street carrying Goodwin’s laptop. At this time, Goodwin noticed an unfamiliar dark-colored Chevrolet Suburban or Tahoe parked in his driveway, which was located in the backyard of the residence and opened onto Kansas Street. Goodwin testified that this vehicle had no license plates and described the back doors as opening "like kitchen cabinets." The intruder walked back past Goodwin. By this time, Goodwin had retrieved the bat he dropped earlier and swung it in the direction of the intruder. Goodwin testified that he hit "something," but did not know if it was the intruder. The intruder then shot Goodwin again, dropped the laptop, and drove away in the vehicle, westbound on Kansas Street.

Pope was killed and Goodwin was injured in this incident. Goodwin was in a coma for nearly 3 months and sustained the loss of one of his kidneys, his spleen and gallbladder, and several feet of his small intestine. Goodwin has been diagnosed with short bowel syndrome, which requires liquid nutrition and a colostomy bag. Complications from his injuries caused Goodwin to fall into a second coma, during which he nearly died.

"ShotSpotter" evidence corroborated the timing of the gunshots. ShotSpotter is a technology utilized by the Omaha Police Department to determine the location of gunshots based upon sounds captured by microphones positioned in certain parts of the city. Here, ShotSpotter captured the sound of two gunshots, 20 seconds apart, sounding from outside Goodwin and Pope’s residence at 4:30 and 4:31 a.m. Neighbors also testified they heard gunshots around that time.

In addition, neighbors witnessed a vehicle travel west from the residence after they heard the gunshots. One neighbor testified that she saw a dark blue, green, or black Suburban or Tahoe. A second neighbor testified that he witnessed a dark-colored Suburban or Tahoe with a loud exhaust, custom wheels, and tinted windows, and that based upon his experience with vehicles, he estimated the vehicle was between a 1996 and a 1999 model due to its more squared frame.

DNA and Other Evidence.

Multiple items were located at the scene of the shooting. In particular, one firearm projectile was found in the driveway of the residence; another was dug from a wall of the living room of the residence; and a third was retrieved from Pope’s body during autopsy. A firearms examiner determined that all three projectiles were fired from the same firearm. No firearm was ever recovered in this case.

Goodwin’s laptop computer was found in the backyard near the driveway. It had a partial shoeprint on its cover. A tread expert testified that the shoeprint was consistent with a Nike "Shox" tennis shoe. The laptop was swabbed for DNA, but the only profiles recovered were Goodwin’s and Pope’s; testing as to Lessley was inconclusive.

Various items of evidence were also recovered from the scene and tested. A substance appearing to be blood was found on the driveway and on a section of the bat. In addition, a swab was taken from the end of the bat. The State’s DNA expert testified that the blood found on the driveway was a match to Lessley’s profile and that the probability that the DNA belonged to another person was 1 in 1.67 quintillion. Lessley could also not be excluded as a contributor to the DNA found at the end of the bat, and the probability that the DNA belonged to a person other than Lessley was 1 in 6.60 quadrillion. Finally, Lessley could not be excluded as a contributor to the DNA from the blood found elsewhere on the bat, with the probability of that DNA belonging to another person being 1 in 23.9 trillion.

Initially, the DNA profile obtained was from an unidentified male, but a DNA database eventually identified the male as Lessley. Based upon that identification, law enforcement determined that on October 12, 2016, Lessley had purchased a 2001 green Chevrolet Suburban from an Omaha dealership. That dealership had global positioning system (GPS) records placing the Suburban less than a mile southeast of the Goodwin-Pope residence at 4:18 a.m. on October 29. One of the investigating officers testified that it had taken him about 2 minutes to drive from the residence to the location noted in the GPS records.

Lessley was arrested in January 2017. At the time of arrest, Lessley was wearing a pair of Nike Shox shoes, which were consistent with the shoeprint found on the laptop computer.

Lessley’s Suburban was impounded at the time of his arrest. The Suburban still had in-transit signs and no license plates. It also had tinted windows, "barn-door" style rear doors, and a louder-than-stock exhaust. A search of Lessley’s residence recovered custom aftermarket rims.

At the time of the shooting, Lessley and his girlfriend lived a 3-minute drive northwest of the Goodwin-Pope residence. Lessley’s girlfriend testified that Lessley returned from work on October 28, 2016, between 11:45 p.m. and 12 a.m. She fell asleep shortly after Lessley returned home and was awoken before 5:30 a.m. by Lessley talking on the telephone. At this time, Lessley’s girlfriend noticed a "hole" in the right side of Lessley’s forehead that he did not have when he came home from work. Lessley’s cell phone records show that he was on the cell phone between 4:58 and 5:06 a.m. on October 29. Lessley later told his girlfriend during a jailhouse telephone call that she did not have to say anything at his trial.

Lessley was charged with first degree murder for Pope’s death, under alternative theories of premeditated murder or felony murder during the commission of a robbery or attempted robbery. Additionally, Lessley was charged with first degree assault for Goodwin’s injuries, possession of a deadly weapon by a prohibited person, and two counts of use of a weapon to commit a felony.

On the first day of trial, the State amended the information by interlineation to remove the premeditated murder theory.

Trial proceeded under the State’s felony murder theory. The jury was instructed only on felony murder and was not instructed as to any other theory of first degree murder, or as to any other degree of murder. Lessley did not object to the instructions as given and did not offer any proposed instructions. Lessley was found guilty on all five counts in less than 2 hours.

The district court initially sentenced Lessley to consecutive sentences of life imprisonment for felony murder, 20 to 20 years’ imprisonment for first degree assault, 3 to 3 years’ imprisonment for possession of a weapon by a prohibited person, and 5 to 5 years’ imprisonment on each use conviction. Following a discussion with counsel for the State and for Lessley, the court added 1 day to the maximum term of each sentence (except the life sentence), so that the minimum and maximum terms would not be the same.

Lessley appeals.

ASSIGNMENTS OF ERROR

On appeal, Lessley assigns that (1) there was insufficient evidence to support his convictions and (2) the district court erred in not instructing the jury on the lesser-included offense of manslaughter.

STANDARD OF REVIEW

In...