State v. Tackett

STATE OF NEBRASKA, APPELLEE, v. JEREMY D. TACKETT, APPELLANT.

No. A-17-1247.

NEBRASKA COURT OF APPEALS

October 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 Saunders County: MARY C. GILBRIDE, Judge. Affirmed.

Mark A. Steele, of Steele Law Office, for appellant.

Douglas J. Peterson, Attorney General, and Kimberly A. Klein for appellee.

MOORE, Chief Judge, and BISHOP and ARTERBURN, Judges.

BISHOP, Judge.

I. INTRODUCTION

Following a bench trial in the district court for Saunders County, Jeremy D. Tackett, also known as James M. Tackett, was convicted of third degree assault on an officer, obstructing a police officer, resisting arrest, and two counts of false reporting. The district court ordered concurrent sentences of 1 year of imprisonment in county jail for each conviction, followed by 12 months of postrelease supervision. On appeal, Tackett challenges the district court's decision to partially sustain a motion to quash a "Deposition Notice Duces Tecum," which sought certain personnel records of the deputy with whom Tackett interacted. Tackett also challenges the admission of certain exhibits, the sufficiency of the evidence, the sentences imposed, and the effectiveness of his trial counsel. We affirm.

II. BACKGROUND

1. INITIAL ENCOUNTER AT BOMGAARS

Ken Jackson, Chief of Police at the Wahoo Police Department, testified that on October 18, 2016, he received a dispatch at 3 p.m. to go to the "Bomgaars" store in Wahoo, Nebraska, "in reference to some individuals that they had been watching for and they said they were at the store." Chief Jackson approached "a white Chevrolet with no plates and in-transits, which is what [he] went there to see." According to Chief Jackson, he initially spoke with Steven Boltz, who was in the vehicle. Boltz produced his driver's license; there was also a female in the car who was later identified as Cheyenne Fox. Chief Jackson instructed Boltz to stay there, and Chief Jackson then entered the store and asked the clerks "where the person was that they'd been watching." He went to look for the other individual, and when he returned to the front of the store, a clerk told him that the other individual had gone out the door. Chief Jackson went outside and found the third individual seated inside the white Chevrolet, and when he asked for identification, the person "had none." The third individual identified himself as Jeremy Tackett born in 1983, but Chief Jackson later discovered Tackett's name was James Tackett and his birth year was 1980.

Chief Jackson informed Boltz he was under arrest for an outstanding warrant and that his vehicle would be impounded pending proof of ownership and insurance. Chief Jackson said the other two individuals were released because "[i]t was determined that we did not have enough to show that there had been any theft taken [sic] place on this date." According to Chief Jackson, two deputies from the sheriff's office had arrived on scene and offered to start the inventory of Boltz' vehicle. During the inventory search, "new property," which "still had tags on it," was found within the vehicle. This caused Chief Jackson to want to detain Tackett and Fox for further questioning, so he issued a statement to other officers to detain Tackett and Fox if they were found. Fox was located shortly thereafter, but Tackett was not located "until much later."

2. INCIDENT LATER THAT NIGHT

A witness, who lived a couple miles south and east of Bomgaars, testified that at around 8 p.m. that same night, a man, later identified as Tackett, "knocked on our door." He was "there standing with no shirt on and [was] kind of disheveled or messy." According to this witness (the resident), Tackett told him that his girlfriend had kicked him out of the car, and he wanted to charge his cell phone to ask someone to pick him up. The resident provided Tackett with a USB port and told him he could charge the cell phone on the front porch; the resident also provided Tackett with a sweatshirt to wear. The resident decided to call "911" because he thought the situation was "a little odd."

Brandon Stenger, who at the time was a deputy with the Saunders County Sherriff's Department, testified that he was on duty that night and responded to a dispatch call directing him to the resident's address. Deputy Stenger was informed that a suspicious male was on the porch at the residence and that there was probable cause to arrest the male. When he arrived at the residence, Deputy Stenger saw Tackett sitting in the corner of the porch; he thought Tackett appeared shocked to see him. Tackett testified that he explained to Deputy Stenger that he was just charging his cell phone and the resident knew he was there. Tackett identified himself as Jason Allen, born inOctober 1982. Based on his prior law enforcement experience, Deputy Stenger believed he had been given a false identification.

Deputy Stenger testified that after the identification discussion, he believed he "asked [Tackett] for [a] pat search for weapons, which [Tackett] freely gave." Tackett testified that he had a lighter in his sock. Deputy Stenger testified that he found the lighter and Tackett's cell phone during the pat-down search. Deputy Stenger said that he gave the lighter back to Tackett, something Tackett denied.

Deputy Stenger directed Tackett to sit in the back of his patrol vehicle while he ran an identification check, but Tackett would not cooperate. Deputy Stenger acknowledged that he had not placed Tackett under arrest at that time, and when asked whether he told Tackett he was not free to leave, Deputy Stenger replied, "The conversation happened so quick, I don't believe we were able to get to that." Deputy Stenger told Tackett that he believed Tackett "was the individual that was involved at Bomgaars" and that he was "wanted from the Bomgaars incident." Deputy Stenger said that Tackett's demeanor changed and he became erratic and took off running. However, Tackett testified that he asked whether he was under arrest at this point and that Deputy Stenger had replied that he was not. Tackett said he did not want to get in the car because he was "not feeling good," but he agreed to talk with Deputy Stenger. Tackett said Deputy Stenger was holding him by the sleeve of "the hoodie that the owner had given [him]," and Tackett "made the decision that [he] was going to leave the area." According to Tackett, he then "reached down with both hands" and "pulled the hoodie up over [his] head." Deputy Stenger said that Tackett took off running across the road, through a ditch, then fell; Deputy Stenger ordered Tackett to stop. Tackett testified that Deputy Stenger could not get ahold of him during the chase because Tackett was shirtless and was "basically able to squirm out of [the deputy's] grip and run away."

According to Deputy Stenger, he eventually reached Tackett and tried to get on top of him to restrain him. Deputy Stenger characterized this part of the incident as a "ground fight," saying Tackett continued to "struggle and fight with me." However, Deputy Stenger admitted that he did not recall Tackett ever punching, hitting, kicking, kneeing, head-butting, or threatening him. After the resident observed what he described as a "struggle on the ground," he said he called 911 again.

Deputy Stenger said that Tackett was able to get off the ground at some point, and Deputy Stenger was behind him. Deputy Stenger put his arms around Tackett in a "bear hug," which the deputy claimed was an effort to restrain Tackett. Deputy Stenger testified that as the struggle continued, he felt a tug at his belt around the gun area and a sharp pain in his left hand so he tried to take Tackett to the ground. He said, "When we went down to the ground, that's when I saw a lighter pop out and I looked at my hand and saw a burn mark." Deputy Stenger was able to get Tackett's hands behind his back, but while trying to retrieve handcuffs, "all of a sudden, the fight was back on." They were struggling on the ground, and at one point while "face to face," Deputy Stenger felt another tug to his belt and thought Tackett was going for his gun again, so he "disengaged to avoid a deadly situation." Deputy Stenger said that Tackett ran away again despite his order to stop.

According to Tackett, he never wrestled with nor tried to grab ahold of Deputy Stenger; rather, Tackett claimed he was just trying to pull away. Tackett did admit to giving a false name and to resisting the deputy, but he testified that he did not have a lighter after he gave it to the deputy on the porch. Tackett said he ran "quite a ways" and up over a hill in a field, and "[a]t somepoint [he] felt like [he] was having a heart condition," and his legs gave out. He fell down, but got back up and tried to run some more, but could not, so he "laid there," thinking that if he wasn't seen, "they'd go back."

Deputy Stenger said he tried to run after Tackett, but he had to walk because he experienced shortness of breath and chest pains. The resident saw the deputy in pursuit of Tackett and it did not appear that the deputy would catch up to Tackett, so the resident picked the deputy up in his "SUV" and proceeded up a hill. When they caught up with Tackett, Deputy Stenger exited the vehicle and handcuffed Tackett. Tackett said that he told Deputy Stenger he was experiencing heart complications, so Deputy Stenger called an ambulance for Tackett. The Chief Deputy for the Saunders County Sheriff's Office, Steven Malina, rode with Tackett in the ambulance to the hospital. Deputy Malina testified that Tackett was "free to leave" when he was being transported, and that Tackett was not arrested that day.

After Deputy Stenger gave custody of Tackett to another officer, he walked to the bottom of the hill to pick up...