State v. Carter, s. 86-442
| Decision Date | 16 October 1987 |
| Docket Number | 86-445,Nos. 86-442,s. 86-442 |
| Parties | STATE of Nebraska, Appellee, v. George E. CARTER, Appellant. STATE of Nebraska, Appellee, v. Victor L. CARTER, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Trial: Evidence: Pretrial Procedure: Appeal and Error. After a motion to suppress has been overruled, an objection to the evidence must be made at trial in order to preserve any error in the ruling on the motion to suppress.
2. Motions for Continuance: Appeal and Error. This court will not reverse an order granting or refusing a continuance except where there has been an abuse of sound legal discretion by the lower court.
3. Plea in Abatement: Appeal and Error. Any error in ruling on a plea in abatement is cured by a subsequent finding at trial of guilt beyond a reasonable doubt.
4. Evidence: Hearsay: Witnesses. A witness is unavailable if the proponent of his statement has been unable to procure his attendance by process or other reasonable means. A witness is not unavailable unless the prosecutorial authorities have made a good faith effort to obtain the witness' presence at trial.
5. Evidence: Hearsay: Witnesses: Appeal and Error. It is within the sound discretion of the trial court whether unavailability of a witness has been shown. Absent a showing of an abuse of discretion, the trial court's decision will be upheld.
6. Evidence: Appeal and Error. If properly admitted evidence exists to establish that which improperly admitted evidence also establishes, the error in receiving the inadmissible evidence is not grounds for reversal.
7. Evidence: Appeal and Error. The admission or exclusion of evidence is a matter within the sound discretion of the trial court and will be upheld absent an abuse of discretion.
William J. Elder of McCormack, Cooney, Mooney & Hillman, and Raymond J. Hasiak of Dowd, Fahey, Dinsmore & Hasiak, Omaha, for appellants.
Robert M. Spire, Atty. Gen., and William L. Howland, Lincoln, for appellee.
The defendants, Victor L. Carter and George E. Carter, were charged in separate informations with first degree murder, with use of a firearm in the commission of a felony, and with being habitual criminals. In the trial court the cases were consolidated for trial. In this court they were consolidated for briefing and argument.
The jury returned verdicts of guilty, and the defendants were each sentenced to life imprisonment on the murder count and to a consecutive term of 10 years on the use of a firearm count.
On appeal the defendants contend that the trial court erred in overruling their motion to suppress identification testimony of Peggy Hatfield and Scott Reynolds, in failing to sustain their motion for a continuance, in failing to sustain their pleas in abatement, in permitting the State to introduce the preliminary hearing testimony of an absent witness, in that the trial was tainted with racial prejudice, in that numerous evidentiary rulings were erroneous, and in granting the State's motion in limine to suppress prior inconsistent evidence.
The record shows that the victim, Jeffrey R. Peterson, died as the result of being shot during the early morning hours of October 9, 1985. A single .38-caliber bullet entered the left chest of the victim and penetrated both lungs and his heart.
The record further shows that between the hours of midnight and 1:30 a.m. on October 9, 1985, the deceased, Jeffrey Peterson, and his cousin, John Flynn, drove to the 19th and Lothrop Streets area in Omaha, Nebraska. They had been asked by a friend of theirs, Gerald Kincaid, to give a message to Janelle Anzalone to either call Kincaid or come to his house because Anzalone owed Kincaid money for pills she had purchased from him. Upon their arrival, Peterson and Flynn met two black males in a blue and white Cadillac parked in front of Anzalone's residence. Flynn inquired as to the whereabouts of Anzalone and was told by the person in the driver's seat that she was not around. During the conversation Flynn was threatened by someone in the Cadillac, and threats were made also against Kincaid or the Kincaid house. Later, Flynn was able to identify only one person in the Cadillac, that being Chester Carter, a brother of the defendants. Flynn could not positively identify Victor Carter as being present in the Cadillac and admitted that it was only his speculation that the individuals at 19th and Lothrop had anything to do with the later shooting.
After this attempt to contact Anzalone, Flynn and Peterson returned to Kincaid's residence at 39th and Young Streets and told Kincaid what had occurred. Peggy Hatfield, Scott Reynolds, and Ross Little were outside the Kincaid house, working on Flynn's car.
Just before 3 a.m. Hatfield, Reynolds, and Little decided to drive to a nearby convenience store for coffee and sandwiches. The three got into Hatfield's car, which was parked facing south on 39th Street. Before they pulled away from the curb, a car came up 39th Street, going north. Hatfield testified that the car contained two or three black males and that the car slowed down as it passed Kincaid's house. The car turned at the intersection of 39th and Young, backed up, and began to drive south on 39th Street. By this time Hatfield had also begun to drive south on 39th Street. The other car was now behind Hatfield and began honking its horn, so Hatfield pulled over to the curb. The car (later described by Reynolds as a blue/light blue-gray Buick) pulled alongside Hatfield's car at about an arm's-length distance. The passenger in the car, whom Hatfield later identified as Victor Carter, pointed a gun toward Hatfield and asked if she knew Jerry Kincaid. She replied that she did not. Victor then said something to the effect of "[d]on't come messing around in our neighborhood or with our people." Hatfield again started to drive south on 39th Street. She looked in her rearview mirror and did not see the car following her. Hatfield drove to a phone booth on 30th Street, located 10 to 15 blocks away from the Kincaid residence. Reynolds made a phone call to the Kincaid residence and was told that Peterson had just been shot.
After Peterson and Flynn had returned from 19th and Lothrop, Kincaid received two or three unpleasant phone calls from Janelle Anzalone. During the second or third phone call, it was brought to Kincaid's attention that a blue car was coming around the corner. He looked out the window and said, "That's them," and then hung up on Anzalone. Flynn testified that Kincaid said, "They just went by" and that he (Flynn) understood Kincaid to mean the Carters. Flynn decided to go across the street to his grandmother's house, where he thought it would be safe, and indicated to Peterson to come with him.
As Peterson and Flynn walked out the front door, Flynn grabbed a baseball bat, and they began to walk through the front yard. When they were in the middle of the yard, the car came around the corner, sped up, and then slammed on its brakes. Flynn threw the bat toward the vehicle, but testified he did not know whether the bat hit the vehicle. Flynn saw muzzle flashes, heard a boom, and said, "Run, Jeff; they've got guns." Flynn ran back behind Kincaid's house, looked around the corner to see if anyone was coming, and then heard footsteps which he thought would be Peterson's. Instead, it was a friend of his named William Howard Thurman, saying that Peterson had been shot. Flynn never actually saw Peterson being shot, but did later identify the vehicle involved as a silver- or grayish-colored four-door Buick.
Later that morning, the Carter automobile was located in a motel parking lot near 39th and Dodge Streets. Flynn was brought to the parking lot and identified the Carter automobile as being the same car involved in the shooting. Reynolds also identified the car as being the same one that pulled Hatfield's car to the side of the road. The vehicle was registered to Georgia Carter, the mother of the defendants.
Meanwhile, police officers were advised that the parties had left the building and were in an alley behind the motel. Officers Strong and Thuelen went to the alley behind the motel and arrested Victor Carter, Chester Carter, and Janelle Anzalone. George Carter was arrested by another officer in a bushy area around the corner from the motel. During his arrest, officers found a .38-caliber cartridge in George Carter's pocket, and 12 additional live .38 long rounds were found lying in the shrubbery.
That morning a lineup or "show up" consisting of Chester Carter, Victor Carter, and George Carter was conducted at the Central Police Station. Flynn identified Chester as one of the persons he saw in the blue and white Cadillac earlier that evening at 19th and Lothrop Streets. Reynolds identified Victor as the passenger in the front seat of the Buick that had pulled the Hatfield car over and also identified George as being a passenger in the back seat of that car. Reynolds later testified at trial that he was mistaken in his placement of George during the lineup and that George was actually the driver of the vehicle. Ross Little, also a passenger in the Hatfield car, identified Victor as the driver of the Buick and George as the passenger in the front seat. Hatfield identified Victor as the passenger waving a gun at her, but could not identify anyone else in the vehicle.
At the trial Kincaid testified that he had seen the shooting; that the blue car had stopped near the front of his house; that the passenger door flew open and a man jumped out, shooting a gun twice; and that then the driver jumped out and started shooting a gun four or five times. Kincaid identified the passenger as Victor and the driver as George.
The first assignment of error relates to the lineup identifications by Peggy...
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