State v. Gutierrez
| Decision Date | 26 January 2007 |
| Docket Number | No. S-05-979.,No. S-05-980.,S-05-979.,S-05-980. |
| Citation | 272 Neb. 995,726 N.W.2d 542 |
| Parties | STATE of Nebraska, Appellee, v. Jesse M. GUTIERREZ, Appellant. State of Nebraska, Appellee, v. Adam P. Sommer, Appellant. |
| Court | Nebraska Supreme Court |
Michael P. Meckna and Jill A. Daley, of Gallup & Schaefer, Omaha, for appellant Jesse M. Gutierrez.
Jerry M. Hug and Alan G. Stoler, P.C., L.L.O., Omaha, for appellant Adam P. Sommer.
Jon Bruning, Attorney General, and James D. Smith, Lincoln, for appellee.
In separate informations filed October 1, 2004, Jesse M. Gutierrez and Adam P. Sommer (collectively the defendants) were each charged with two counts of first degree murder, one count of attempted first degree murder, and three counts of use of a deadly weapon to commit a felony in connection with the killings of Daniel Lopez and Maria Ojeda and the attempted killing of Marcos Lucero. The cases were consolidated for jury trial, and the jury returned verdicts of guilty on all charges. Both of the defendants were sentenced to consecutive terms of life imprisonment for the first degree murder convictions and consecutive terms of 50 to 50 years' imprisonment for each of the remaining convictions. Both of the defendants have appealed. Because the cases were tried together and the defendants' appellate arguments are substantially the same, we consider these appeals together. For the reasons that follow, we affirm the convictions and sentences in both cases.
Generally described, the State's theory of the cases was that Lucero, Lucero's nephew Gutierrez, and Gutierrez' friend Sommer had been involved in the transportation and distribution of marijuana. Lucero, who lived in Arizona, obtained marijuana from Mexico through his connections there and transported it to Nebraska for sale. Differences arose between Gutierrez and Lucero, so Lucero ended his partnership with Gutierrez and established a partnership with Lopez. The State theorized that Gutierrez and Sommer tried to kill Lucero so they could stay in business by dealing with Lucero's connections directly.
Lucero explained at trial that he had been involved in smuggling and used his connections to establish a marijuana business with Gutierrez. Sommer helped, as did Ojeda, Lucero's girl friend. David Bowen, a friend of Gutierrez, testified that in November 2003, Gutierrez invited him to join the marijuana distribution business, and he agreed. Bowen was introduced to Lucero, who served as Bowen's contact in Arizona for obtaining marijuana. Bowen lived in a house on Drexel Street in Omaha that was used to distribute the marijuana. Bowen explained that Carlos Carreon, Ojeda's brother, was at the top of the drug operation.
Lucero said that from the beginning, Gutierrez shortchanged Lucero the money that Gutierrez was supposed to pay him after the marijuana was distributed. Later, marijuana started to disappear as well, but Lucero did not confront Gutierrez about his suspicions. After Ojeda made a trip to Omaha, however, Ojeda told Lucero that Gutierrez had shortchanged her, treated her disrespectfully, and made sexual advances toward her. Lucero finally confronted Gutierrez, and then told Sommer that he was taking his business elsewhere. But Lucero told Gutierrez that he still expected Gutierrez to pay the money that Gutierrez owed. Bowen confirmed that in the days prior to March 9, 2004, Gutierrez and Lucero had argued and that Gutierrez had told Bowen that Gutierrez owed Lucero money. Lucero said that Lopez, who also lived in Arizona, was a close friend and that when Gutierrez became unreliable, Lucero and Lopez agreed to a new arrangement to distribute marijuana in the Omaha area. Eventually, Lucero and Ojeda came to Omaha to attempt to collect the money Gutierrez owed. Lucero tried to call Gutierrez and searched for him, but was unable to reach him.
Nicole Van Woensel, a girl friend of Gutierrez, testified that in January or February, Lucero had contacted her demanding the money that Gutierrez owed Lucero. Van Woensel testified that
the conversation that I had with [Lucero] was [Lucero] asking me for money, wanting me to wire him approximately $1500, and when I told him I didn't have that money, he started telling me that [Gutierrez] was shorting money on the loads and that [Gutierrez] wasn't paying on time and that [Gutierrez] wasn't keeping in contact with [Lucero] and [Ojeda] and so there was just a lot of conflict. And [Gutierrez] was very upset that I had talked to him about that and told me that [Lucero] was going crazy and he had to get rid of him and told me that if [Lucero] ever called me again, not to answer and just pretend like we had broken up.
John Griego testified that he had been brought into the marijuana business by Gutierrez and transported marijuana for him. On March 8 or 9, 2004, Griego gave Gutierrez' new telephone number to Ojeda. Lucero directed Ojeda to call, hoping that Gutierrez would answer because Gutierrez might not recognize Ojeda's telephone number. Ojeda reached Gutierrez and discovered that Gutierrez was in Arizona.
Lopez had also traveled to Omaha with his fiancée, Esperanza Carranza. They had planned to leave Omaha on March 8, 2004, but had been unable to travel, and Lopez made arrangements with Lucero to get back to Arizona. Lucero picked up Lopez and Carranza from their hotel and took them to a restaurant. From there, they went to a house rented by Lucero and Lopez for Thomas Romero, who was also involved in the marijuana operation, and Lopez and Carranza spent the night of March 8 there with Lucero and Ojeda.
The next day, Lucero used the new number to call Gutierrez again, from a pay telephone, and said that Gutierrez sounded "surprised" when he answered the telephone and found it was Lucero. Lucero again demanded payment, and Gutierrez said Lucero "would be contacted" by Sommer shortly, because Sommer and the money were in Omaha. Sommer called Lucero and told Lucero to meet him at Bowen's house on Drexel Street.
Lucero described how he and Lopez went to Bowen's house, but Sommer was not there. Bowen testified that Lucero and Lopez knocked on Bowen's door, claiming that Sommer had told them to come there to pick up their money. Lucero tried to call Gutierrez and Sommer, but was unable to reach them. Then, after leaving, Lucero received another call from Sommer, who told him to come back to the house to meet Sommer and get the money he was owed. They returned, and again Bowen told them that Sommer was not there.
By the time Lucero and Lopez left Bowen's house on Drexel Street for the second time, Lopez was driving and Lucero was riding in the front passenger seat, while Ojeda was in the back seat on the driver's side and Carranza was on the passenger's side. Lucero explained that after they drove away the second time, Sommer called again and suggested meeting at a nearby restaurant. Carranza said that Lucero received the call just after leaving the house, as they reached a stop sign. Then, Lucero said, "I still had the phone in my hand when all the bullets started flying." Someone began shooting at the vehicle, shattering the windows on the driver's side. Lopez and Ojeda were shot. Because the driver had been shot, the vehicle rolled forward out of control, until Lucero gained control of the vehicle and stopped it. Carranza called the 911 emergency dispatch service, but Lopez and Ojeda died of gunshot wounds. Lucero waited at the scene for the police. Telephone records are consistent with Lucero's testimony regarding the calls that were made.
Det. Ken Kanger was working for the Omaha Police Department's homicide/assault unit at the time and was called to investigate the killings. Kanger was informed that the victims had been at a house near 19th and Drexel Streets, later identified as Bowen's, and that broken glass and spent shell casings had been found a couple of blocks away, at the intersection of 21st and Drexel Streets. The glass fragments were found in the street, while the shell casings were found behind some bushes at the corner of the intersection. The victims' vehicle had been found approximately four blocks away. Several bullet holes were found in the vehicle, as were several bullet jackets and fragments. In short, the physical evidence suggested that the victims had left Bowen's house at 19th and Drexel Streets and driven to the intersection of 21st and Drexel Streets. At that intersection, the perpetrators had shot at the vehicle from behind the bushes. The vehicle continued moving until it came to rest some distance away.
Christina Mace, a girl friend of Gutierrez, testified that in late February, Gutierrez told her that he and Lucero were arguing because of Ojeda and because Gutierrez owed Lucero money. Mace said that she traveled to Arizona in March 2004, and Gutierrez joined her on March 8. Gutierrez made a trip to Mexico and explained that he had gone to talk to someone about "cutting out" Lucero, because, according to Gutierrez, Lucero had threatened his life. While in Arizona, Gutierrez used an automatic teller machine, and Mace testified that Gutierrez explained he had to do that "so they would know he was in Arizona." Mace said that later, after a telephone call to Omaha, Gutierrez told her that "it's done," that "they," meaning Sommer and a companion, had killed Lucero. However, after Gutierrez and Mace got back to Omaha, Gutierrez and Sommer told Mace that Lucero was not hit and that two other people, including Ojeda, had been killed instead. Mace also overheard a conversation between...
To continue reading
Request your trial
-
State v. Rogers
...at 310, 111 S.Ct. 1246. 111. Id.; Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972). 112. See, State v. Gutierrez, 272 Neb. 995, 726 N.W.2d 542 (2007); State v. Canady, 263 Neb. 552, 641 N.W.2d 43 (2002). 113. See, Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, ......
-
State Of Neb. v. Sandoval
...prosecutorial misconduct, the defendant must show that a substantial miscarriage of justice has actually occurred. State v. Gutierrez, 272 Neb. 995, 726 N.W.2d 542 (2007). Remarks made by the prosecutor during final argument which do not mislead or unduly influence the jury do not rise to t......
-
State v. Ellis
...Ellis presents is a case of last impression. And, on the record before us, it is not a question we need to answer. We explained in State v. Gutierrez 19 that the jailhouse informer statutes were discovery provisions, intended to ensure that criminal defendants have the opportunity to meanin......
-
State v. Vela
...Molina, supra note 54, 271 Neb. at 528, 713 N.W.2d at 447. 65. State v. Welch, 275 Neb. 517, 747 N.W.2d 613 (2008); State v. Gutierrez, 272 Neb. 995, 726 N.W.2d 542 (2007). 66. State v. Fischer, 272 Neb. 963, 726 N.W.2d 176 (2007); State v. Iromuanya, 272 Neb. 178, 719 N.W.2d 263 67. Locket......