Lotter v. Houston
Citation | 771 F.Supp.2d 1074 |
Decision Date | 25 April 2011 |
Docket Number | No. 4:04CV3187.,4:04CV3187. |
Parties | John L. LOTTER, Petitioner,v.Robert HOUSTON, Warden, Tecumseh State Correctional Center, Respondent. |
Court | United States District Courts. 8th Circuit. United States District Court of Nebraska |
OPINION TEXT STARTS HERE
John L. Lotter, Tecumseh, NE, pro se.Andre R. Barry, Cline, Williams Law Firm, Sean J. Brennan, Brennan, Nielsen Law Firm, Lincoln, NE, for Petitioner.J. Kirk Brown, Jon C. Bruning, Attorney General's Office, Lincoln, NE, for Respondent.
John L. Lotter (“Lotter” or “Petitioner”) seeks a writ of habeas corpus. His petition will be denied, and this matter will be dismissed with prejudice.
Lotter was convicted on three counts of first degree murder, three counts of use of a weapon to commit a felony, and one count of burglary. He was sentenced to death for each murder conviction and to not less than 80 months nor more than 20 years of imprisonment for each use of a weapon conviction and the burglary conviction.
Teena Brandon moved to Richardson County, Nebraska, in the fall of 1993. Brandon was a woman but had been presenting herself as a man by the name of “Charles Brayman.” Brandon became acquainted with Lotter and Thomas M. Nissen through a mutual friend and had attended parties with them. Lotter and Nissen later discovered that Brandon was a woman. Angry that they had been deceived, on December 25, 1993, they drove Brandon to a rural area and raped her in Lotter's car.
Nissen testified on behalf of the State and gave the following account. On Christmas Day 1993, Lotter and Nissen learned that Brandon had reported the rape to the police and began discussing ways to silence Brandon. By December 26, they had decided to kill her.
Nissen and Lotter drove to Lincoln, where they had reason to believe they would find Brandon. They brought a hatchet and some nylon rope, and each brought a change of clothing. According to Nissen, they planned to use the hatchet to chop off Brandon's head and hands so that her body would be difficult to identify. However, their plan went awry when they were unable to locate Brandon.
Having failed to locate Brandon on December 26, 1993, Nissen and Lotter continued to plan Brandon's murder. On December 28, Nissen and Lotter were questioned by Officer Keith Hayes of the Falls City Police Department concerning the allegations stemming from Brandon's rape.
On December 30, 1993, Nissen and Lotter went to the house of Lotter's mother, where Lotter picked up two pairs of gloves. They next went to Bill Bennett's house, where Lotter stole Bennett's handgun. After retrieving the handgun, Nissen and Lotter drove to Linda Gutierres' house to look for Brandon. Apparently thinking that Brandon was at the Gutierres residence, they put on the gloves and Lotter handed Nissen a knife. Lotter had the handgun in his hand as they walked to the door.
Although Brandon was not at the Gutierres residence, Gutierres did tell Nissen and Lotter that Brandon was staying at Lisa Lambert's house near Humboldt, Nebraska. Nissen and Lotter then proceeded to Humboldt to kill Brandon.
At approximately 1 a.m. on December 31, 1993, Nissen and Lotter drove Lotter's car to Lambert's residence. Nissen drove while Lotter gave directions. Along the way, they drove by the deputy sheriff's home, apparently to ascertain whether the deputy would be on patrol that night.
When they reached Lambert's residence, Nissen drove down a long gravel driveway and parked the car by the side of the house. Both were wearing gloves when they got out of the vehicle. Lotter was armed with Bennett's handgun and a knife.
After pounding on the door and getting no response, Lotter kicked in the door and they entered Lambert's home. They entered the bedroom, where they encountered Lambert, who was lying on a waterbed, and her baby, who was in a crib.
Nissen asked Lambert where Brandon was and then noticed there was a person under a blanket on the floor at the foot of the bed. Removing the blanket, Nissen discovered Brandon, who apparently had been trying to hide. Nissen grabbed Brandon by the arm and stood her up. Lotter then shot Brandon, who fell on the bed. Brandon continued to twitch after being shot, so Nissen proceeded to ensure that she was dead by retrieving the knife from Lotter and stabbing Brandon in the abdomen.
After he stabbed Brandon, Nissen picked up the baby and handed the baby to Lambert. As soon as Nissen handed Lambert the baby, Lotter raised the pistol and shot Lambert in the stomach area, but the shot did not kill her. Nissen grabbed the baby and put him back in the crib.
While Lambert was still alive, Nissen asked her if anyone else was in the house. Lambert indicated that Phillip DeVine was present, so Lotter left the room to find DeVine.
Lotter returned to the room with DeVine and shot Lambert again, this time in the eye. DeVine, who had been pleading for his life, was led back to the living room at Nissen's suggestion. Nissen told DeVine to sit down, and DeVine complied by sitting on the couch. As soon as DeVine sat down, Lotter shot him twice.
Lotter then went back to Lambert's bedroom. The record indicates Lotter fired two or three more shots to ensure that everyone was dead. Nissen then went back to the bedroom and suggested that he and Lotter leave. Nissen and Lotter then left the house.
Nissen drove himself and Lotter back to Falls City. During the return trip to Falls City, Lotter threw the knife and a box containing the handgun into the Nemaha River. When they arrived in Falls City, Nissen and Lotter went to Nissen's house, where Nissen's wife, Kandi Nissen, and Rhonda McKenzie, Lotter's girlfriend, were staying. Nissen washed his hands with Clorox because he did not have his gloves on when he stabbed Brandon. Nissen and Lotter then informed Kandi Nissen and McKenzie that if anyone asked, they were home at 1 a.m. It was approximately 3 a.m. at that time.
Prior to Lotter's trial, Nissen was convicted in a separate trial of first degree murder in the death of Brandon and second degree murder in the deaths of Lambert and DeVine. Nissen did not testify at his own trial, but, literally, on the eve of Lotter's trial, he made a deal and testified against Lotter. While Nissen's testimony was extremely important to the prosecutor's case against Lotter, it is also true that the “other” evidence against Lotter was compelling.
A summary of some of that “other” evidence was provided by Lotter's appellate counsel in the direct appeal brief. In part, that defense summary included the following descriptions of the evidence which I quote:
* (Filing No. 49–17 at CM/ECF p. 40.)
* ( Id. at 41.)
* ( Id.)
* ( Id.)
* “Seven .380 cal. bullets and six shell casings were recovered from the residence, a mattress, a pillow, and the bodies of the victims.” ( Id.)
* “Shortly after midnight on January 1, 1994, police officers recovered one pair of gloves, a box containing a handgun, and a buck knife with the name ‘LOTTER’ written on the sheath from the ice of the Nemaha River just south of Falls City.” ( Id. at 42.)
* “William Bennett had purchased the .380 cal. handgun in late 1993 and kept it in a dresser in his bedroom.” ( Id.)
* ( Id.)
* ( Id.)
* “The buck knife tested positive for human blood, type ‘A,’ the same type as both Mr. Lotter and Teena Brandon.” ( Id.)
* ( Id. at pp. 42–43.)
* ...
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