State v. Epp

Decision Date16 October 2009
Docket NumberNo. S-08-331.,S-08-331.
Citation278 Neb. 683,773 N.W.2d 356
PartiesSTATE of Nebraska, Appellee, v. William A. EPP, Appellant.
CourtNebraska Supreme Court

James R. Mowbray and Todd W. Lancaster, of Nebraska Commission on Public Advocacy, for appellant.

Jon Bruning, Attorney General, and George R. Love, Columbus, for appellee.




William A. Epp appeals his convictions and sentences for robbery and possession of a deadly weapon by a felon. Epp was found to be a habitual criminal and was sentenced to imprisonment for 60 to 60 years on each of the two convictions, with the sentences ordered to be served consecutively. We affirm Epp's convictions and sentences.


On April 24, 2007, a person wearing a ski mask robbed a Casey's General Store (Casey's) in Wymore, Nebraska. A video recording from the store's security cameras showed that the robber wore a dark ski mask, a green jacket, dark pants, dark gloves, and white shoes with dark stripes. The video recording also showed that the robber pulled from his jacket an object that looked like a handgun. There were three witnesses in the store at the time of the robbery. Their testimonies regarding the robber's clothing were consistent with what was shown in the video recording. At trial, each of the witnesses testified that the robber had a handgun. However, one of the witnesses also stated that at the time of the robbery, she thought that the handgun was not real.

Epp became a suspect in both the Wymore Casey's robbery, which is the subject of this case, and a series of burglaries of a grocery store in Plymouth, Nebraska, that occurred April 6 and 30 and May 21, 2007. A video recording of the May 21 burglary of the Plymouth store showed that the burglar was wearing clothing similar to that worn by the robber of the Wymore Casey's. Based on information from confidential informants tying Epp to the Plymouth burglaries, police obtained a warrant to search Epp's apartment in Beatrice, Nebraska. In that search, police found various items that were stolen in the Plymouth burglaries and clothing which matched descriptions of clothing worn by the Plymouth burglar and the Wymore Casey's robber.

On September 4, 2007, the State filed an information in the district court for Gage County charging Epp with robbery of the Wymore Casey's, use of a deadly weapon to commit a felony, and possession of a deadly weapon by a felon. The State also alleged that Epp was a habitual criminal. Separate charges were filed in the district court for Jefferson County in connection with the Plymouth burglaries. This appeal is from the Gage County case involving the Wymore Casey's robbery. On August 26, 2008, in case No. A-08-322, the Nebraska Court of Appeals affirmed Epp's conviction and sentence for the May 21 Plymouth burglary (hereinafter the Plymouth burglary).

Prior to trial, the State filed a motion and notice of intent to present evidence pursuant to Neb. Evid. R. 404, Neb.Rev. Stat. § 27-404 (Reissue 2008), which relates generally to the admission of evidence of other crimes, wrongs, or acts. The State noted its intent to present evidence regarding the Plymouth burglary, including a video recording of the Plymouth burglary, items taken from the Plymouth store that were found in Epp's apartment, and testimony establishing that Epp committed the Plymouth burglary. At a hearing on the motion, the State argued that it would offer evidence of the Plymouth burglary in the present case for the purpose of proving identity by showing that Epp was the person who committed both the Plymouth burglary and the Wymore Casey's robbery.

The district court granted the State's motion to present evidence of the Plymouth burglary for the purpose of proving identity. The court noted that the person in both the Plymouth burglary and the Wymore Casey's robbery wore a dark ski mask, dark pants, a dark windbreaker jacket, and, most notably, shoes with a diamond-shaped pattern on the soles of the heels. The court also found testimony identifying Epp as the Plymouth burglar to be credible. The court concluded that there was "a distinct pattern and procedure relating to the identity of the intruder in both the Plymouth grocery store burglaries and the Casey's ... robbery which goes significantly beyond the common thread of the intruder wearing dark clothing in both instances." At trial, the court gave a limiting instruction prior to admitting evidence regarding the Plymouth burglary. The court instructed that the evidence was being received for the limited purpose of proving identity. The court overruled Epp's objections to admission of the evidence.

Prior to trial, Epp subpoenaed three witnesses who were imprisoned in Lancaster CountyPaul Mick, who was imprisoned at the Nebraska State Penitentiary, and Wes Blessing and Bryon Forney, who were both imprisoned at the Diagnostic and Evaluation Center. Epp's trial was to take place in Gage County. Epp moved the district court to order the Nebraska Department of Correctional Services to transport each witness to appear at trial. Epp asserted that Blessing and Forney would both testify that while they and Mick were incarcerated at the Gage County jail, Mick confessed to them that he had committed an armed robbery of a Casey's. The State objected to Epp's motions.

The court denied the motions to transport the witnesses, because the trial was to take place in Gage County and the witnesses were imprisoned in Lancaster County. The court relied on Neb.Rev. Stat. § 25-1233(1) (Reissue 2008), which provides: "A person confined in any prison in this state shall, by order of any court of record, be produced for oral examination in the county where he or she is imprisoned. In all other cases his or her examination must be by deposition." The court noted that § 25-1233 had been held to apply in criminal proceedings. The court also cited State v. Stott, 243 Neb. 967, 503 N.W.2d 822 (1993), disapproved on other grounds, State v. Johnson, 256 Neb. 133, 589 N.W.2d 108 (1999). In Stott, this court rejected a challenge to § 25-1233 based on the compulsory process clauses of the Sixth Amendment to the U.S. Constitution and article I, § 11, of the Nebraska Constitution and held that "a criminal defendant does not possess an absolute constitutional right to demand the personal attendance of a prisoner witness incarcerated outside the county of the venue of trial," 243 Neb. at 982, 503 N.W.2d at 833, and that testimony by deposition was constitutionally sufficient.

The district court in the present case granted Epp leave to obtain the testimonies of Mick, Blessing, and Forney by deposition. After the depositions were taken, the State filed a motion in limine prohibiting admission of evidence regarding Mick's purported statements to Blessing and Forney. After a hearing, the court determined that the evidence was not relevant and not trustworthy. The court determined that the statements were inadmissible hearsay and that exceptions to the hearsay rule did not apply. The court sustained the State's motion in limine and ordered that Epp was barred "from mentioning, eliciting, offering and/or adducing any evidence, statement or argument concerning any purported verbal statement or statements made by ... Mick to ... Blessing and/or ... Forney."

At trial, a witness who was working in the Wymore Casey's at the time of the robbery testified that on April 25, 2007, the day after the robbery, she saw Mick in the Casey's acting "nervous and standoffish." She testified that Mick was of a similar height and build to the person who robbed the store and that he had a scratch or mark near his eye that was similar to a mark she noticed through the eyehole of the ski mask worn by the robber. Epp presented testimony of the Wymore police chief, who testified that Mick was involved in a disturbance in Wymore prior to the day the Casey's was robbed. Without objection by the State, the court allowed Epp's counsel to read into evidence a portion of Mick's deposition in which he stated that he was in Wymore on April 25 but that he was in Fairbury, Nebraska, on April 24, the day the Wymore Casey's was robbed. However, the court sustained the State's objections to the remainder of Mick's deposition and to the depositions of Blessing and Forney.

During closing arguments, the prosecution referred to testimony by Epp's landlord regarding statements made by Epp in a conversation with the landlord regarding the reason Epp was in jail after his arrest in this case. Epp objected to this portion of the State's closing argument and argued that it implied Epp needed to present a defense to explain why he was in jail and that it caused the jury to question why Epp did not testify in his defense. Epp moved for a mistrial based on the prosecutor's statements. The court overruled the motion and did not give a limiting instruction but required the prosecutor to clarify that the jury was to consider Epp's response in the context of his landlord's question.

The jury found Epp guilty of robbery and possession of a deadly weapon by a felon. However, the jury found Epp not guilty of use of a deadly weapon to commit a felony.

The court conducted a habitual criminal enhancement proceeding on March 10, 2008. The State had filed a notice of intention to offer evidence of public official or agency records pursuant to Neb. Evid. R. 803(7), Neb.Rev.Stat. § 27-803(7) (Reissue 2008). Such evidence included certified copies of court records regarding Epp's prior convictions and a "pen packet" certified by the Nebraska Department of Correctional Services with information regarding Epp's commitment and discharge for various offenses. The court received the evidence at the enhancement hearing over Epp's objections based on hearsay, relevance, and foundation. The court deemed Epp to be a habitual criminal based...

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