State v. Ammons
| Decision Date | 15 May 1981 |
| Docket Number | No. 43450,43450 |
| Citation | 208 Neb. 797,305 N.W.2d 808 |
| Parties | STATE of Nebraska, Appellee, v. Willie AMMONS, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Criminal Defendants: Witnesses. Just as an accused has the right to confront the prosecution's witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.
2. Criminal Defendants: Witnesses. The constitutional right of a defendant to call witnesses in his defense mandates that they must be called without intimidation.
3. Prosecuting Attorneys: Witnesses. A prosecutor may impeach a witness in court but he may not intimidate him in or out of court.
Rodney W. Smith, Omaha, for appellant.
Paul L. Douglas, Atty. Gen. and G. Roderic Anderson, Asst. Atty. Gen., Lincoln, for appellee.
Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE, and HASTINGS, JJ.
The defendant was found guilty by a jury of robbery and use of a firearm in the commission of a felony, and was sentenced to imprisonment for not less than 8 nor more than 15 years on the robbery count and not less than 2 nor more than 3 years on the firearm count, the sentences to run consecutively.
On November 6, 1979, a Safeway store in Omaha, Nebraska, was robbed by two black males. One man approached the courtesy booth in a corner of the store with a gun and demanded all the money from the clerk in the booth. The clerk put $700 to $800 in an envelope and the robber left the store with his accomplice, who had been standing a few feet away. The man with the gun was described as being approximately 5 feet 6 inches tall and weighing approximately 140 pounds. The accomplice was described as quite a bit taller, 6 feet at least and perhaps 6 feet 2 inches. The robbery took approximately 3 minutes and the only evidence against the defendant was the eyewitness testimony of the clerk in the courtesy booth.
Following the robbery the clerk called the police and gave them a description of the robbers. The day following the robbery the clerk was shown a spread of approximately 8 to 10 photographs of police suspects. The clerk picked a photograph of Glen Harrington as looking like the robber, but made no positive identification. No police record was kept as to what other pictures were included in the spread, nor whether the defendant's picture was included. On November 29, 1979, the clerk viewed a police lineup of four black males. Michael Harrington, a brother of Glen Harrington, was one of the individuals in the lineup. The clerk was unable to identify anyone in the lineup. Both Glen and Michael Harrington are approximately the same height and size as the defendant. On December 4, 1979, the clerk was again shown a spread of eight police photographs. The clerk picked one photograph as a possible suspect but could not make a positive identification. On December 19, 1979, the police held a lineup of three individuals, including the defendant. The defendant was the only short man in the lineup. The clerk immediately identified the defendant as the man with the gun who had robbed him, and identified him again at preliminary hearing and at the trial. He testified that his identification was based on his observation of the defendant at the time of the robbery.
An information against the defendant was filed and on January 10, 1980, a plea of not guilty was entered and the cause was set for trial to the next jury panel. On March 7, 1980, the defendant filed a motion to suppress all pretrial identifications of the defendant, and the motion was scheduled for hearing on March 24, 1980. On March 11, 1980, the defendant was advised that his case would be called for trial the following morning and suppression hearing would be held prior to the commencement of trial. The defendant made a motion for continuance which was overruled on March 12, 1980, together with the motion to suppress identifications.
Trial commenced and the State presented its case which rested entirely on the identification of the defendant by the clerk. At the conclusion of the State's case a hearing was held in chambers outside the presence of the jury and a record made of the proceedings. The prosecutor, defendant and his counsel, and a prospective witness, Michael Harrington and his counsel were present. At the request of the defendant, Harrington had been brought to court from the penal complex where he was incarcerated.
Harrington's counsel stated that he had been notified a day or two previously that the defendant intended to call Harrington as a witness, and that he understood that the testimony of Harrington, if he took the stand, would incriminate him with respect to the offense for which the defendant was being tried. He also stated that Harrington was presently serving a 3-year sentence in the penal complex which began approximately 1 month before. Harrington's counsel also stated that that sentence was the result of pleading guilty to the charge of assault in the second degree and that there was an agreement made with the prosecutor in that case that two burglaries would be dismissed, and further that Harrington would clear up some robberies in which he was a suspect. Harrington's counsel also stated, and Harrington confirmed, that in Harrington's discussions with the prosecutor in the assault case he admitted his guilt in the robbery for which the defendant was being tried, and was assured by that prosecutor that no prosecution would result as long as he pleaded guilty to the second degree assault.
The trial judge in this case, who had also been the judge at the time of Harrington's guilty plea, in response to an inquiry by Harrington, stated that his recollection was:
Harrington's counsel had advised Harrington that he was not positive whether or not the State would treat Harrington's testifying in this case as a nullification of the agreement and file charges against Harrington based on the admissions he made on the witness stand, and that he had advised Harrington that the only way he could assure him there would be no prosecution would be for Harrington to take the fifth amendment if he was called as a witness.
The trial judge explained to Harrington that the court had nothing to say about whether the State brought a charge or not and that such decisions were entirely up to the prosecution, and advised Harrington that he could not tell him whether or not the county attorney was going to file a charge if Harrington testified. The prosecutor then stated for the record that the State would prosecute. The prosecutor stated his feeling that any agreement the prosecutor in the Harrington case made was "out the window" if Harrington took the stand in the present case and testified in open court that he committed the robbery.
Harrington then decided that he would take the fifth amendment and refuse to answer any questions. The prosecutor requested that Harrington not be sworn in front of the jury, and the court asked Harrington if he was called as a witness would he refuse to answer any questions about the robbery involved in this...
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State v. Oldson
...the witness off the stand and had thereby deprived the defendant of due process of law under the 14th Amendment.We similarly held in State v. Ammons,115 that the defendant was deprived of due process when the prosecutor drove a material defense witness off the stand by threatening that the ......
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State v. Higgins
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...Court in Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967), and recognized by this court in State v. Ammons, 208 Neb. 797, 305 N.W.2d 808 (1981). Before we can determine whether this right was abridged, it must first be established that this evidence is relevant to the......
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State v. Laymon
... ... The Court stated: ... Although our research has revealed no cases where the issue of the acceptance of expert testimony regarding eyewitness identification has arisen in Louisiana, we have noted such cases in other jurisdictions. In State v. Ammons, 208 Neb. 797, 305 N.W.2d 812 (1981), the 756 So.2d 1176 Supreme Court, in a case which involved a robbery, affirmed the trial court's refusal to allow a psychologist to testify to prove that eyewitness identification testimony tends to be inaccurate and unreliable. The trial court held that ... ...