State v. Hittle
| Decision Date | 23 July 1999 |
| Docket Number | No. S-98-1074.,S-98-1074. |
| Citation | 257 Neb. 344,598 N.W.2d 20 |
| Parties | STATE of Nebraska, appellee, v. James E. HITTLE, appellant. |
| Court | Nebraska Supreme Court |
Richard Register, Fremont, for appellant.
Don Stenberg, Attorney General, and Susan J. Gustafson, for appellee.
Following a jury trial, James E. Hittle was convicted of felony flight to avoid arrest and felony driving under a 15-year license suspension. The district court determined that he was a habitual criminal and sentenced him to terms of 20 to 30 years' imprisonment for each offense, with the sentences to run concurrently. Hittle appeals the convictions and sentences, asserting multiple assignments of error. We affirm both convictions, but conclude that Hittle was improperly sentenced as a habitual criminal and therefore vacate the sentences imposed and remand the cause to the district court for resentencing.
On April 15, 1998, Hittle was charged by information with flight to avoid arrest in violation of Neb.Rev.Stat. § 28-905 (Reissue 1995) and operating a motor vehicle while his license was revoked pursuant to Neb.Rev.Stat. § 60-6,196(2)(c) (Reissue 1993), in violation of § 60-6,196(6), both Class IV felonies. The information charged that the offenses occurred in Dodge County, Nebraska, on or about February 21, 1998. On April 20, an amended information added an additional count, alleging that Hittle was a habitual criminal pursuant to Neb.Rev.Stat. § 29-2221 (Reissue 1995).
A jury trial was held on July 2, 1998. At trial, Bradley J. Hansen a police officer for the city of Fremont, was asked whether he was so employed and on duty on "December 31st of 1998" and gave an affirmative response. He stated that while patrolling in the area of 23d and Lincoln Streets, he noticed a blue Ford pickup that roughly matched the description of a vehicle involved in a previously reported incident. When Hansen began following the pickup, he observed it enter a turn lane without activating its turn signal and then suddenly turn back into the traffic lane. When Hansen activated his cruiser's emergency lights, the pickup accelerated and a chase ensued for approximately seven blocks. The pickup then turned into a church parking lot and came to a stop in the backyard of a residence adjacent to the church.
From a distance of approximately 50 feet, with his cruiser's headlights illuminating the pickup, Hansen observed a person with long, black hair and wearing a dark-colored baseball cap and maroon sweatshirt jump out of the pickup and run behind the residence. At trial, Hansen identified Hittle as that person. With the assistance of other officers, Hansen found Hittle hiding behind some trash cans at the rear of a residence, and Hittle was apprehended.
Hansen testified that for safety reasons, he checked the interior of the pickup after he observed Hittle exit the vehicle. When he did so, he observed numerous items on the passenger side which would impair the ability of another person to sit on that side. Hansen stated that when the chase began, the driver of the pickup was the only person in the vehicle. Hansen testified without objection that at the time of his apprehension, Hittle stated that he had previously "beat" other charges by stating there was another driver in the vehicle.
On cross-examination, Hansen admitted that Hittle had a substantial beard and mustache on the day of the incident and that he did not mention this in his identification of the occupant of the pickup. Hansen admitted that he did not mention Hittle's comment about previously avoiding charges during his testimony at the preliminary hearing because he was not asked about it, despite the fact that the statement was mentioned in his police report. At the close of the State's case, Hittle's attorney moved to dismiss the flight to avoid arrest count based on insufficiency of the evidence, but made no motion as to the other felony count. The motion was overruled.
Hittle then testified in his own defense. He responded affirmatively when asked whether he was in Fremont "[o]n the evening in question here." According to Hittle, he was a passenger in the pickup which was driven by an individual named "Robert Martin." Hittle testified that when the pickup came to a stop in the church parking lot, Martin "bailed out of the truck" and rolled under it. Hittle then testified that he had to exit the pickup through the door on the driver's side because of a mechanical problem with the door on the passenger side. According to Hittle, in order to exit the pickup, he threw aside a gray box which was in the center of the seat of the pickup, which he claimed accounted for the items Hansen observed on the passenger seat.
Hittle testified that he fled from Hansen because he was frightened. He stated that he has "hypermodal activated anxieties" and that he takes medication for anxiety problems. Hittle denied telling Hansen that he had beat similar charges by saying that somebody else was driving. Rather, Hittle testified that he immediately told Hansen that Martin had been driving the pickup. Hittle stated that he did not know where to find Martin as of the day of trial and that Martin did not have a permanent residence where he could be served with summons to appear as a witness.
Hittle's father testified that on the night of Hittle's arrest, someone whose name he did not know had driven Hittle from the family's home near Oakland, Nebraska, to Fremont. The father also testified that near midnight, Hittle's friend called and asked to be picked up in Fremont. Hittle's father testified that he went to Fremont and transported the person who had telephoned back to Oakland, but did not obtain his name. Hittle's mother testified that her husband received a call in the middle of the night on the night of Hittle's arrest and that her husband then left the house. She did not see whom he brought back. After resting his case, Hittle moved for dismissal and a directed verdict on the ground that the evidence was insufficient to warrant a conviction. The motion was overruled. The jury found Hittle guilty on both counts charged.
On August 25, 1998, Hittle's trial counsel withdrew at Hittle's request and a new attorney was appointed to represent him. On September 8, a hearing was held on the habitual criminal count. During the hearing, Hittle's new attorney expressed concern that Hittle's mental health and the medications he was taking could affect his ability to understand the proceedings. As a result, the trial court ordered that Hittle be committed to the Lincoln Regional Center for observation to determine his competency for sentencing, and the court continued the hearing on its own motion.
On September 11, 1998, Dr. Scott Moore, a psychiatrist for the Lincoln Regional Center, evaluated Hittle. He testified at the sentencing hearing held on September 22. Moore testified that based upon his evaluation, which lasted approximately 90 minutes, that although Hittle was "a bit hypertalkative" and had a demeanor of "mild anxiety," he was not delusional. Moore did not observe any kind of disorganization of Hittle's thoughts or any kind of "slippage of reality testing in his thoughts." Moore also concluded that Hittle's intellectual capacity appeared to be "clinically average." After noting the medications Hittle was taking and their various side effects, Moore concluded that Hittle was able to comprehend and understand the sentencing procedures. Moore also did not see "any great reason" to recommend a change of medication and wrote in his report, "I do not think that there is a psychiatric reason for delaying sentencing further."
Hittle testified at the hearing that a doctor had previously advised him that he may have a bipolar mood disorder. Hittle also testified that he did not believe he had a "100 percent" grasp of his mental faculties during trial. Hittle testified that he specifically asked his attorney to bring up competency issues prior to sentencing because he felt that his medications were affecting his ability to understand what was going on. When asked what part of the current proceeding he did not understand, he stated:
Based on this evidence and its observations of Hittle, the trial court found that he was competent to be sentenced. As a result, the court proceeded with the hearing regarding the habitual criminal statute. Hittle objected on the basis that although he had previously reviewed the exhibits to be introduced, he did not receive a notice of hearing until the day before and thus did not receive the proper 3-day notice required by § 29-2221(2). The court overruled this objection. At another point in the hearing, Hittle stated that he did not receive a full copy of one of the State's exhibits, requested that he be provided with the 3-day notice required by § 29-2221(2), and renewed his objection. This objection was also overruled.
The State offered two exhibits pertaining to the habitual criminal charge. The first exhibit established that in 1995, he was convicted in a single proceeding filed in the district court for Dodge County on charges of possession of a stolen firearm and possession of a controlled substance, for which he received concurrent sentences of 18-months' imprisonment. The second exhibit showed that in 1996, Hittle was convicted in the district court for Douglas County on a charge of operating a motor vehicle while his operator's license was suspended or revoked pursuant to § 60-6,196 and was sentenced to 1 to 2 years' imprisonment, with 117 days' credit for time served. These exhibits were received over Hittle's objection. The court also received an exhibit offered by Hittle which reflected the manner in which good time is computed and the actual time served by Hittle on...
To continue reading
Request your trial
-
Streeks, Inc. v. Diamond Hill Farms, Inc.
...an appellate court is obligated to reach a conclusion independent of the determination reached by the court below. State v. Hittle, 257 Neb. 344, 598 N.W.2d 20 (1999). Jury instructions are subject to the harmless error rule, and an erroneous jury instruction requires reversal only if the e......
-
State v. Burdette
...degree sexual assault, second offense, was a double enhancement of his penalty. We do not agree. Burdette cites to State v. Hittle, 257 Neb. 344, 598 N.W.2d 20 (1999), for the proposition that the State cannot, in effect, doubly enhance a defendant's criminal conviction. In Hittle, we held ......
-
State v. Rocha
...279 (2003); State v. Long, 264 Neb. 85, 645 N.W.2d 553 (2002); State v. McLemore, 261 Neb. 452, 623 N.W.2d 315 (2001); State v. Hittle, 257 Neb. 344, 598 N.W.2d 20 (1999). 5.Massaro v. United States, 538 U.S. 500, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003). 6.Id., 538 U.S. at 505, 123 S.Ct. 169......
-
State v. Ramirez
...29-2221 implicates double jeopardy.17 Ramirez does not contend other-wise. Instead, he relies on our decisions in State v. Chapman18 and State v. Hittle,19 which he claims are In Chapman, the defendant was charged with third-offense driving under the influence of alcoholic liquor (DUI) and ......