State v. Caporale
| Decision Date | 13 October 2020 |
| Docket Number | No. A-20-046.,A-20-046. |
| Parties | STATE OF NEBRASKA, APPELLEE, v. STEVEN M. CAPORALE, APPELLANT. |
| Court | Nebraska Court of Appeals |
(Memorandum Web Opinion)
Appeal from the District Court for Gage County: JULIE D. SMITH, Judge. Affirmed.
Jerry L. Shelton for appellant.
Douglas J. Peterson, Attorney General, and Melissa R. Vincent for appellee.
Following a jury trial, Steven M. Caporale was convicted of distribution of a controlled substance (methamphetamine). The district court for Gage County subsequently imposed a sentence of imprisonment. Caporale appeals his conviction and sentence. For the reasons that follow, we affirm.
Procedural Background.
On January 9, 2019, the State filed a complaint alleging that Caporale distributed methamphetamine within 1,000 feet of a school zone in violation of Neb. Rev. Stat. § 28-416(4)(a)(ii) (Reissue 2016), a Class ID felony punishable by a minimum of 3 years' and a maximum of 50 years' imprisonment. Neb. Rev. Stat. § 28-105 (Reissue 2016). The charge in this case arose from a "controlled buy" in which investigators used a confidential informant to purchase methamphetamine from Caporale in Wymore, Nebraska, on May 19, 2016.
The State had originally charged Caporale on March 2, 2017, and a jury trial was scheduled for May 23, 2018. On May 21, the State moved to endorse an additional witness. Caporale objected, and the district court denied the State's motion. Subsequently, the State filed a motion to dismiss, and the district court dismissed the case without prejudice.
After the State refiled charges against Caporale in the present case, a preliminary hearing was held on February 7, 2019. Investigator Nathan Jacobsen of the Nebraska State Patrol testified about the circumstances surrounding the controlled buy. Based on this testimony, the county court found there was probable cause to believe Caporale had committed the offense charged, and it bound the case over to district court. The State filed an information in district court charging the same offense alleged in the complaint.
On February 19, 2019, Caporale filed a plea in abatement. Caporale alleged that "the State's evidence of identification of [Caporale] at the scene of the alleged offense was insufficient to establish probable cause and further that the evidence presented by the State of chain of custody of alleged contraband was further lacking and insufficient to establish probable cause." Following a hearing, the district court entered an order denying Caporale's plea in abatement.
On July 31, 2019, Caporale filed several pretrial motions. As relevant to this appeal, Caporale filed: a motion in limine to prohibit the State from offering audio recordings of the controlled buy; a motion in limine to prohibit the State from offering the methamphetamine obtained by the confidential informant from Caporale; a motion to suppress Jacobsen's identification of Caporale; and a motion to dismiss the case on due process grounds. Following a hearing and argument by the parties, the district court denied Caporale's motion to dismiss, his motion in limine concerning the methamphetamine, and his motion to suppress. The court granted in part and denied in part Caporale's motion in limine relating to the audio recordings of the controlled buy.
Trial began on September 11, 2019. At trial, Caporale objected to the admission of the audio recordings of the controlled buy, to Jacobsen's in-court identification of him, and to admission of the methamphetamine purchased by the confidential informant from Caporale. Caporale further objected to the admission of a Nebraska certificate of title for a red Ford Mustang that was owned by Caporale and driven by him during the controlled buy. The district court overruled all four objections.
At the conclusion of the State's presentation of evidence, Caporale moved to dismiss on the grounds that the State had failed to introduce any evidence showing he was at least 18 years old at the time of the offense, a required element under § 28-416(4)(a)(ii). The district court found that the State had not met its burden of proof regarding Caporale's age, but elected to instruct the jury on the lesser-included offense of distribution of methamphetamine under § 28-416(2)(a) rather than dismiss the case. Caporale did not object.
During the jury instruction conference, Caporale requested that the court instruct the jury on eyewitness identification testimony and offered a proposed instruction. The court sustained the State's objection on the grounds that the instruction "had no basis in Nebraska law." The district court did give a general credibility instruction.Evidence Presented at Trial.
At trial, Jacobsen testified that he had been employed with the Nebraska State Patrol for 24 years and that at the time of the events in this case, he was a narcotics investigator. Prior to May 19, 2016, Jacobsen spoke with a confidential informant who told him that the informant could conduct a controlled buy of methamphetamine from Caporale. Jacobsen testified he was not familiar with Caporale, but was aware that he drove a maroon or red Ford Mustang convertible. While preparing for the controlled buy, Jacobsen confirmed Caporale had a red Ford Mustang registered in his name. Jacobsen also viewed an enlarged color photograph of Caporale from the Nebraska Department of Motor Vehicles database.
At approximately 1 p.m. on May 19, 2016, Jacobsen met with several other investigators to discuss their roles in the controlled buy operation, which was to take place at Caporale's residence. Investigators Todd Wiley and David Hanselmann were assigned to take photographs and record the controlled buy via audio. Wiley and Hanselmann subsequently traveled to Caporale's residence, where they observed a red Ford Mustang convertible parked outside.
Jacobsen testified that he traveled with two other investigators to meet with the confidential informant. Jacobsen searched the informant to ensure he did not have any illegal narcotics concealed on his person. This search included bodily cavities and orifices, socks, and shoes. After the search was complete, Jacobsen equipped the informant with recording and transmitting devices. Jacobsen activated the devices so that investigators could monitor the controlled buy as it occurred. He also gave the informant $300 to purchase methamphetamine from Caporale.
Jacobsen testified that shortly after the recording devices were activated, Caporale called the informant. Jacobsen did not recognize the caller's voice at that time, but he testified he had become familiar with Caporale's voice since that day. During the phone call, Caporale told the informant to meet him at Casey's gas station in Wymore. The recorded phone conversation was received into evidence and played for the jury. Jacobsen informed Wiley and Hanselmann of the change in location, and they set up surveillance in the park across the street from the gas station.
Jacobsen and the informant drove to the meeting location and parked near the front of the store. Jacobsen testified that he observed a maroon or red Ford Mustang convertible parked a few stalls away from Jacobsen's vehicle. He testified that he recognized the Mustang as Caporale's and that he identified the driver of the Mustang as Caporale.
The confidential informant exited the car and spoke briefly with an acquaintance near the front door of the gas station. Jacobsen testified that the informant then walked to Caporale's vehicle and sat in the passenger side seat. Jacobsen saw the Mustang back out of the parking stall and drive around the block before returning to park at the gas pumps. After a brief conversation, the informant got out of the Mustang and immediately returned to Jacobsen's vehicle. Jacobsen testified that no one besides Caporale and the informant were inside Caporale's vehicle at any point.
After the confidential informant returned to Jacobsen's vehicle, he handed Jacobsen a cigarette box. Jacobsen testified that inside the box was a white baggy with a crystalline substance that he recognized from his training to be methamphetamine. Jacobsen then transported the informant to a different location where he searched the informant again and recovered therecording and transmitting equipment. Jacobsen did not find any contraband on the informant's person, nor did he find any of the $300 of buy money. The State offered the audio recording of the controlled buy during trial and played it for the jury.
Jacobsen testified that after the controlled buy, he sent the white crystalline substance to the Nebraska State Patrol Crime Lab. The substance was positively identified as methamphetamine by a forensic drug analyst.
Wiley testified that he observed the controlled buy from a park across the street from the gas station. He took several photographs of Caporale's red Ford Mustang before and during the buy. The photos showed no one besides Caporale and the informant were inside Caporale's vehicle at any point. Hanselmann testified that he also observed the controlled buy from across the street. He recorded the buy via a hand-held camera. This video was received into evidence at trial. The video showed the confidential informant entering Caporale's red Ford Mustang and driving around the block with Caporale before exiting and returning to Jacobsen's vehicle.
Caporale did not offer any evidence in his defense. After Caporale's motion to dismiss, the court acquitted him of distribution of a controlled substance within 1,000 feet of a school zone and instructed the jury on the lesser-included offense of distribution of a controlled substance. After deliberation, the jury found Caporale guilty of distribution of methamphetamine. A presentence...
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