State v. Dixon
| Decision Date | 14 July 2000 |
| Docket Number | No. S-98-888.,S-98-888. |
| Citation | 259 Neb. 976,614 N.W.2d 288 |
| Parties | STATE of Nebraska, appellee, v. John DIXON, appellant. |
| Court | Nebraska Supreme Court |
Daniel P. Bracht, of Law Offices of Daniel P. Bracht, West Point, for appellant.
Don Stenberg, Attorney General, and Kimberly A. Klein, Lincoln, for appellee.
John Dixon was convicted pursuant to a jury verdict in the district court of attempted first degree murder, use of a deadly weapon to commit a felony, and attempted theft by unlawful taking of property with a value in excess of $1,500. The district court thereafter sentenced Dixon to a combined sentence of not less than 49 nor more than 62 years' imprisonment. Dixon timely appealed. The primary issue in this appeal is whether the evidence adduced at trial was sufficient to entitle Dixon to a jury instruction on attempted second degree murder. Based on our holding in State v. Al-Zubaidy, 253 Neb. 357, 570 N.W.2d 713 (1997), we answer this question in the affirmative, and for the reasons stated herein, we affirm Dixon's conviction for attempted theft by unlawful taking, reverse Dixon's convictions for attempted first degree murder and use of a deadly weapon to commit a felony, and remand this cause for a new trial on those two counts.
The evidence viewed in a light most favorable to the State reveals that on the evening of February 7, 1995, Chad Vasa, Ramon Morales, and Dixon met at an apartment in Omaha, Nebraska. When Vasa first met Morales, Morales was carrying a duffelbag containing a sawed-off shotgun and some shells for the shotgun. Dixon arrived after Morales. Shortly thereafter, Vasa, Morales, and Dixon (hereinafter collectively the trio) decided to leave the apartment and abandon the duffelbag containing the shotgun at the house of a mutual acquaintance; the trio then drove to western Omaha in search of a car to steal.
The initial attempt to steal a car went awry, as Morales and Dixon were chased away from the car by someone appearing to have a weapon. The trio decided that before they attempted to steal another car, they would retrieve the shotgun and shells. After doing so, they set out toward West Point, Nebraska. The trio stopped in Decatur, Nebraska, where they stole another car, a Chevrolet Celebrity, and then again in Oakland, Nebraska, where Dixon used the shotgun to shoot the windows out of a parked car, before they finally arrived in West Point.
Upon arriving in West Point early on the morning of February 8, 1995, the trio decided to attempt to steal yet another car. They parked the Chevrolet Celebrity in an alley adjacent to the garage and behind the home of Bill and Cheryl Weiler. Vasa testified that he remained in the car while Morales and Dixon got out to steal the Weilers' 1985 Buick Electra Park Avenue automobile, which was parked next to the garage. According to Vasa, Morales let himself into the car while Dixon stood at the corner of the Weilers' garage, holding the shotgun.
Cheryl Weiler awoke when her dog began to bark at approximately 6:15 a.m. She went to the kitchen and attempted to quiet her dog by tapping on the window when she noticed that the interior light of the Park Avenue was on and that someone was behind the steering wheel. Cheryl Weiler also noticed that there was another person standing outside of her car between the car and the garage. She alerted her husband, Bill Weiler, and dialed the 911 emergency dispatch service on the telephone.
Bill Weiler then went to the door and ordered the intruders to get out of the car. There was a brief hesitation and a muffled response before one of the intruders asked, "Now?"; Bill Weiler then shouted, "Yeah, now." At this point, a shot was fired in Bill Weiler's direction, striking him with at least 180 shotgun pellets, causing him severe injuries. The remainder of the shotgun pellets struck the area of the Weilers' home near the doorway from which Bill Weiler had emerged. Before authorities arrived at the Weilers' home, the trio had escaped and were headed back toward Omaha.
Hours after the shooting, Vasa was arrested near Tekamah, Nebraska, for possessing a stolen vehicle. After his arrest, Vasa met with police several times and was questioned regarding the February 8, 1995, shooting in West Point. On February 21, Vasa gave a statement to Investigators Ron Hilliges and Doug Johnson of the Nebraska State Patrol, in which Vasa indicated that he and Dixon were involved in the shooting. Vasa asserted that he was not the shooter and voluntarily took two polygraph examinations in an attempt to exonerate himself, failing both of them.
Hilliges and Johnson informed Vasa of the polygraph results and told Vasa that they did not believe his story. Still maintaining his innocence, Vasa offered to make a tape-recorded telephone call to Dixon, during which Vasa believed Dixon would admit to the shooting. Johnson and Hilliges explained that Vasa was to ask questions in a manner that would not allow Dixon to merely give "yes" or "no" answers and then allowed Vasa to place the call. During the ensuing telephone conversation, Vasa asked Dixon, "Wasn't you just supposed to scare him though, man?" Dixon replied, "Yeah." Later in the conversation, Vasa asked Dixon, "How come you shot him?" Dixon responded, Dixon concluded their discussion by stating, "That's the point of having a gun." Hilliges and Johnson were present when the conversation between Vasa and Dixon was recorded.
Johnson and Hilliges later discovered that portions of the tape-recorded conversation were indiscernible because the voices sounded "like chipmunks." The investigators then approached Brian Kreikemeier, an experienced sound technician, to "clean up" the recording and make the conversation more intelligible. Kreikemeier "cleaned up" the recording by slowing the tape speed down, adjusting the frequency of the recorded sounds through an equalizer, and recording the slower version onto another tape. Kreikemeier testified at trial that no changes could have been made to the original tape because it was received by him in such a condition that it could not be recorded over.
Dixon was ultimately brought to trial on charges of attempted first degree murder, use of a deadly weapon in the commission of a felony, and attempted theft by unlawful taking. At trial, the State sought to introduce both the partially unintelligible tape recording (exhibit 4) and the "cleaned-up" version (exhibit 3), and both were admitted into evidence over Dixon's objections. Exhibit 3 was played in court and was then explained and corroborated by Vasa's testimony. Vasa, Johnson, and Hilliges all testified that exhibit 3 was an accurate depiction of the conversation between Dixon and Vasa. Dixon's attorney then attempted to cross-examine Vasa about the failed polygraph examinations, but the State objected, and the objection was sustained.
Dixon also objected to the introduction of three photographs the State sought to admit into evidence. Two of these photographs (exhibits 22 and 23) depict Bill Weiler's injuries, and the third photograph (exhibit 44) illustrates the field of vision of Debra Harstick, a neighbor of the Weilers who testified at trial. Dixon argued that exhibits 22 and 23 were cumulative and would inflame the jury and that exhibit 44 should not be admitted because it was taken during a season different from that in which Bill Weiler was shot and depicts automobiles not present on the day of the shooting. The photographs were admitted into evidence over Dixon's objection.
At the conclusion of the State's case, Dixon made a motion to dismiss all three counts of the information, which motion was recharacterized by the court as a motion for a directed verdict and then overruled. Prior to the submission of the case to the jury, the district court instructed the jury on attempted murder in the first degree. Dixon did not request a jury instruction on attempted murder in the second degree, and no such instruction was given. After the case was submitted to the jury but before a verdict had been reached, the district court acceded to the jury's request for a tape player, "presumably to listen to Exhibit 3." Thereafter, the jury returned verdicts of guilty on all three counts.
Dixon made a motion for a new trial, which was overruled upon sentencing. After a presentence investigation, the district court sentenced Dixon to not less than 40 nor more than 50 years' imprisonment for the crime of attempted first degree murder, not less than 8 nor more than 10 years' imprisonment for the crime of using a firearm to commit a felony, and not less than 1 nor more than 2 years' imprisonment for the crime of attempted theft by unlawful taking. The district court ordered the sentences to be served consecutively. Dixon timely appealed.
Dixon contends, summarized and restated, that the district court erred in (1) failing to instruct the jury on the lesser-included offense of attempted second degree murder; (2) admitting various audiotapes, photographs, and testimony into evidence; (3) allowing the jury to take an electronic tape recorder into their deliberations; (4) not allowing Dixon to cross-examine Vasa regarding the results of Vasa's polygraph examinations; (5) giving a jury instruction which improperly minimized the burden of proof on the element of intent; (6) declining to give a jury instruction tendered by Dixon on the inherent problems with verbal communications (7) conducting an ex parte communication with the jury; (8) overruling Dixon's motions for a directed verdict and for a new trial; (9) finding sufficient evidence to uphold Dixon's convictions; and (10) imposing excessive sentences.
Whether jury instructions given by a trial court are correct is a question...
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