State v. Burdette
| Citation | 259 Neb. 679,611 N.W.2d 615 |
| Decision Date | 09 June 2000 |
| Docket Number | No. S-99-1210.,S-99-1210. |
| Parties | STATE of Nebraska, appellee, v. David E. BURDETTE, appellant. |
| Court | Supreme Court of Nebraska |
Thomas C. Riley, Douglas County Public Defender, and Timothy P. Burns, Omaha, for appellant.
Don Stenberg, Attorney General, and Marilyn B. Hutchinson, Lincoln, for appellee.
David E. Burdette was convicted by a jury in the district court for Douglas County on August 20, 1999, of first degree sexual assault, second offense; attempted first degree sexual assault; robbery; and two counts of burglary. Burdette was found to be a habitual criminal and on September 22, was sentenced to 115 to 220 years' imprisonment. Burdette appeals his convictions and sentences. We affirm.
In 1982, Burdette was convicted of two counts of first degree forcible sexual assault and one count of attempted first degree forcible sexual assault. On March 31, 1982, an intruder entered the home of C.P. through a back window after pulling a screen off the window. As C.P. was going to bed, the intruder grabbed her from behind and threw her on the bed. He bound her arms and mouth with duct tape and blindfolded her. He then sexually assaulted her both anally and vaginally and took some money from her billfold before leaving the house. C.P. had recently been featured in a local magazine in a list of the 10 most eligible women in Omaha.
On April 19, 1982, P.G. was awakened by an intruder who tied her hands behind her back and blindfolded her before sexually assaulting her anally and vaginally. Before leaving the house, the intruder asked P.G. where her money was located.
On April 25, 1982, an intruder gained entry to the home of J.B. through a sliding glass door. J.B. was awakened in her bedroom by the intruder, who tied her hands with duct tape, blindfolded and gagged her, and then sexually assaulted her anally and vaginally. The intruder went through her billfold and drawers before leaving the house. At one point, the intruder told J.B. he had seen her picture in a magazine article featuring Omaha's 10 most eligible women. In describing the intruder, J.B. told investigators she thought that he was white but that his voice "sounded black." Burdette is white.
In May 1982, Lynn Mason was a deputy sheriff in Douglas County and a member of a task force investigating sexual assaults of women who had been featured in the local magazine article listing the 10 most eligible women in Omaha. Mason was assigned to guard P.M., one of the women featured in the article. On May 10, Mason was inside P.M.'s house at around 2 a.m. when Burdette attempted to cut the screen on a sliding glass door of the house. While attempting to gain access to P.M.'s house, Burdette saw Mason, and Burdette fled. Burdette was later found hiding in the area of P.M.'s house and was arrested.
Burdette pled guilty to the assaults of C.P. and P.G. Burdette was convicted of the attempted first degree sexual assault of P.M.
On December 1, 1982, Burdette received consecutive sentences of 11 to 15 years' imprisonment for each of the sexual assaults and a concurrent sentence of 3 to 5 years' imprisonment for the attempted sexual assault. Burdette served his sentences at the Omaha Correctional Center and was released on April 30, 1998. Upon his release, Burdette registered with the Douglas County sheriff's office pursuant to the Sex Offender Registration Act, Neb. Rev.Stat. §§ 29-4001 to 29-4013 (Cum. Supp.1998). On June 2, he informed the sheriff's office of a change of address.
In the early morning hours of October 14, 1998, an intruder broke into the rural Douglas County home of A.B. and her two daughters. A.B.'s husband had died in a motorcycle accident on September 30, and October 13 was the first night she and her daughters had stayed by themselves overnight in their home since his death. A.B. had gone to bed with her two daughters at around 10:30 p.m. on October 13. Some time after midnight, A.B. was awakened when the intruder placed his hand, covered in a latex glove, over her mouth. The intruder asked A.B. for her purse and then got A.B. and her daughters out of the bed and led them to the hallway. When A.B. told the intruder her purse was downstairs, the intruder returned A.B. and her daughters to the bed, tied A.B. to her daughters with plastic flexible cuffs, and ordered them to lie face down on the bed.
A.B. then heard the intruder going through the bedroom and other rooms of the house. He subsequently returned to the bedroom, blindfolded and gagged A.B., and tied her legs apart with some ripped sheets. The intruder digitally penetrated A.B. both anally and vaginally and fondled her breasts. A.B. then heard the intruder take off his pants, and he penetrated her with his penis. As he was assaulting A.B., the intruder told her daughters he was not hurting their mother and that "mommy liked this." After 5 to 10 minutes, A.B. heard the intruder say he was not "going to waste the bucket." He then withdrew and put his pants back on. The intruder went downstairs, searched for A.B.'s purse, then returned upstairs before leaving to hit A.B. and her daughters on the buttocks and to tell them not to call the police or he would kill them.
After the intruder left, A.B. freed herself and called her brother-in-law at approximately 2 a.m. She then called the 911 emergency dispatch service. A.B.'s brother-in-law and a deputy sheriff arrived shortly thereafter. A.B. was unable to identify the intruder because she never got a good look at him, but based on the sound of his voice, she thought he might be a black male. She also noted that he smelled of cigarette smoke. A.B. determined that some money and a gun were taken from her home. Investigators determined that the home had been entered through a window in the living room where a screen had been ripped off the frame.
The following day, after hearing about the break-in and assault, Jane Frost, a neighbor of A.B.'s, reported to the sheriff's office that she was driving home at around 12:30 a.m. on October 14, 1998, and noticed a black Ford Bronco with a red stripe parked on the side of the road by the driveway to A.B.'s home. Frost reported that she slowed down and read the license plate number which she thought to be
On October 17, 1998, a deputy sheriff saw a black Ford Bronco with a red stripe and a license plate number of 1-HH87 heading west on Maple Street. The deputy pulled the vehicle over because of a traffic violation and because the vehicle matched the description of the vehicle observed by Frost. The driver of the vehicle was Burdette, and Burdette identified himself to the deputy as a registered sex offender. The deputy passed the information on to investigators in the sheriff's department.
When that information reached investigators, Burdette became a suspect in the assault of A.B. Investigators began a 24-hour surveillance on Burdette on October 22, 1998, and obtained a court order from the district court for Douglas County on October 24 to install a tracking device on Burdette's vehicle. Investigators learned that subsequent to the time Burdette had completed his sex offender registration, he had changed his employer and his vehicle. In order to gain access to Burdette's vehicle to install the tracking device, investigators put out a "locate" to have Burdette stopped in his vehicle and to have investigators notified when he was stopped.
At around 5 p.m. on October 27, 1998, in reliance on the locate, deputy sheriffs stopped Burdette in his vehicle and notified two of the investigators, Deputy Sheriff William Jackson and Deputy Sheriff John Pankonin. Although the stop was based on the locate, one of the deputy sheriffs told Burdette that the stop was for the purpose of having Burdette update his sex offender registration. Jackson and Pankonin proceeded to the area where Burdette had been stopped. Jackson requested that Burdette come to the sheriff's headquarters in order to update his sex offender registration. Burdette agreed to ride with the deputies to the headquarters. Burdette's vehicle was towed to the impound lot, where an electronic tracking device was installed on the vehicle.
As the tracking device was being installed, Burdette was at the sheriff's headquarters completing the sex offender registration. Pankonin began Burdette's registration process with a blank form and went over the questions with Burdette. Pankonin asked Burdette only those questions that were on the registration form. Burdette answered the questions and volunteered additional information. Burdette told Pankonin about the sexual assaults he had committed in 1982. Burdette stated that in 1982, Burdette and his girl friend saw an issue of a local magazine featuring a list of the most eligible women in Omaha. Burdette told his girl friend the women on the list were probably better than the girl friend, and she replied that he would never know. Burdette told Pankonin that he took her reply as a challenge and that he proceeded to rape two or three of the women on the list.
Burdette went on to tell Pankonin that in 1998, he was 43 years old, and that he was too old and not in good enough shape to do something like that again. However, Burdette told Pankonin that during the 1982 sexual assaults, he was not wearing a condom but that in 1998, he would wear a condom because of sexually transmitted diseases and because police would need only a small sperm sample to make a DNA identification. Burdette also told Pankonin that during the 1982 assaults, he did not use a weapon because he believed he could physically overpower the victims with his hands and did not need a weapon.
As Pankonin went over the questions with Burdette, Jackson monitored the progress of the installation of the tracking device. When Jackson...
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