State v. Johnson
| Decision Date | 05 February 2021 |
| Docket Number | No. S-19-1226.,S-19-1226. |
| Citation | 308 Neb. 331,953 N.W.2d 772 |
| Parties | STATE of Nebraska, appellee, v. Thomas E. JOHNSON, Jr., appellant. |
| Court | Nebraska Supreme Court |
Thomas C. Riley, Douglas County Public Defender, and Allyson A. Mendoza, for appellant.
Douglas J. Peterson, Attorney General, and Jordan Osborne, for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.
Thomas E. Johnson, Jr., appeals his convictions and sentences in the district court for Douglas County for five counts of robbery, five counts of use of a weapon (not a firearm) to commit a felony, one count of assault in the second degree, and one count of attempted escape. Johnson claims on appeal that the district court erred when it overruled his motion to suppress statements he made while in custody and evidence of witness identifications from the photographic lineups (photo lineups), when it found that he had not proved his defense of insanity, and when it imposed excessive sentences. We reject each of Johnson's assignments of error, and we therefore affirm Johnson's convictions and sentences.
Between June 15 and 21, 2015, a string of robberies took place at five different businesses in Omaha, Nebraska. Each robbery involved a knife being used to threaten the victim, and victims in all the robberies gave descriptions of the assailant that were similar in terms of race, age, height, weight, and hair. Three of the five robberies occurred when the victim was alone; in one robbery, there were two other individuals present; and in the final robbery, two employees were robbed. In most of the robberies, the assailant used the knife only to threaten the victims, but in one robbery, a struggle ensued and the assailant stabbed the victim in the upper arm, shoulder, and neck several times. During the struggle, the victim bit the assailant's hand.
Surveillance video from the robbery in which the victim had been stabbed was released to local media. Johnson's stepdaughter contacted police to report that her son had seen the surveillance video on television and recognized Johnson as the suspect. She also reported that she had seen bite marks on Johnson's hand, which was consistent with reports that the stabbing victim had bitten the suspect's hand in the struggle. At approximately 7 a.m. on June 23, 2015, police officers went to the home that family members shared with Johnson. After officers spoke with family members, Johnson's wife directed them to where Johnson was sleeping. Officers woke Johnson and observed that he matched the physical description of the suspect and that he had bite marks on his hand.
Police officers took Johnson into custody and transported him to police headquarters to be interviewed by Det. Jon Martin, who was investigating the string of robberies. After Martin read Johnson his Miranda rights, Johnson agreed to speak with Martin. Johnson generally denied being involved in the robberies, and he asserted that he had injured his hand doing yardwork. Johnson acknowledged that the person shown in a photograph taken from the surveillance video looked like him.
Martin created a photo lineup that included a photograph of Johnson and photographs of five other men who fit Johnson's general description. While Johnson was being interviewed by Martin, another officer went to various locations to meet with witnesses from four of the five robberies. The officer administered photo lineups to six witnesses who all identified Johnson as the person who committed the robberies. The two victims in the fifth robbery spoke limited English and primarily spoke Spanish. Therefore, on a later day, Martin accompanied an officer who was fluent in Spanish to meet with the two separately. The Spanish-speaking officer administered photo lineups to those two victims, who both identified Johnson as the robber.
After the officer who conducted the six photo lineups on June 23, 2015, reported the identifications to Martin, Johnson was arrested and transported from police headquarters to jail. As Johnson was being removed from a police vehicle to be taken into the jail, he ran from officers. The officers chased after and caught Johnson.
On July 16, 2015, the State charged Johnson with five counts of robbery and five counts of use of a weapon, not a firearm, to commit a felony. The State also charged Johnson with one count of assault in the second degree for the robbery in which the victim was stabbed and with one count of attempted escape for having run from officers when being taken to jail.
On February 10, 2016, based in part on a competency evaluation completed by Dr. Bruce Gutnik, the district court determined that Johnson was not competent to stand trial and committed him to the Lincoln Regional Center (LRC) for restoration of competency. On May 19, the court reviewed a report by Dr. Farid Karimi, who was treating Johnson at LRC, and determined that Johnson remained incompetent to stand trial and should stay committed to LRC. On August 19, based on a new report from Karimi, the court determined that Johnson was then competent to stand trial, and Johnson was returned to jail. However, Johnson later filed a new motion to determine competency, and on October 6, after reviewing a report by Gutnik, the court found that Johnson was no longer competent to stand trial and should be recommitted to LRC for restoration of competency. On May 5, 2017, the court found Johnson competent to stand trial based on a report by Karimi, and on May 16, Johnson filed notice pursuant to Neb. Rev. Stat. § 29-2203 (Reissue 2016) that he intended to rely on a defense of not responsible by reason of insanity.
Prior to trial, Johnson also moved to suppress certain evidence. Johnson moved to suppress statements he made to Martin while he was being held at police headquarters on the morning of June 23, 2015. He alleged that the statements were not freely and voluntarily given and were obtained in violation of his constitutional rights. Johnson also moved to suppress evidence of identifications made by witnesses based on the photo lineups. He alleged that the procedures used by officers to obtain the identifications were unduly suggestive and prejudicial to his constitutional rights.
Martin testified at the suppression hearing regarding his investigation of the robberies. Turning to the morning of June 23, 2015, Martin testified that he was informed that Johnson was being brought to police headquarters by officers who had responded to reports from Johnson's family members. While waiting for Johnson to be brought in, Martin retrieved information regarding Johnson from the police computer system, including photographs of Johnson. Martin noted that Johnson fit the physical description of the suspect and that he "bore a very strong resemblance to the party that [Martin] had observed in the surveillance video" of one of the robberies. Martin used police software to create a photo lineup that included a photograph of Johnson and photographs of five other individuals with a similar appearance to Johnson's in terms of "gender, race, age, height and weight."
Martin then met with Johnson in an interview room at approximately 7:47 a.m. Martin began by obtaining general biographical information from Johnson. After determining that Johnson was responsive and did not appear to be suffering any sort of medical condition or to be under the influence of narcotics or alcohol, Martin read Johnson the police department's rights advisory form.
The court received into evidence at the suppression hearing the completed rights advisory form, which indicated that Johnson had been informed of his rights and that, knowing his rights, he was willing to talk to Martin. The court also received into evidence at the suppression hearing a video recording of Martin's interview and interactions with Johnson on June 23, 2015.
Martin testified that his interview of Johnson regarding the robberies began at approximately 7:53 a.m. About 5 minutes later, Johnson stated to Martin that the interview was over, but Johnson continued talking for some minutes thereafter. Martin testified that at approximately 8:03 a.m., Johnson stated that Martin could speak with Johnson's lawyer. Martin testified that Johnson remained in the interview room until shortly after noon but that Martin did not further interview Johnson during that time. Martin testified that Johnson was alone in the room most of that time other than during certain brief interactions. Martin testified that at his request, police personnel entered the room in order to photograph Johnson's hand because Martin had noted injuries which were consistent with bite marks that were reported to have been sustained by the suspect in one of the robberies. Martin testified that at one point, he brought Johnson water and coffee and that at other times, other officers had responded to Johnson's requests to be taken to the bathroom and to adjust the temperature in the room.
The video recording that was received into evidence at the suppression hearing showed that at approximately 8:03 a.m., Johnson said he was done talking, and that Martin could conduct photo lineups or talk to Johnson's lawyer or "whatever." The video recording shows that Martin stopped talking and left the interview room shortly thereafter. However, Martin returned to bring Johnson a drink at approximately 9:45 a.m. When Johnson began asking about what the charges against him would be, Martin left to get a notepad and returned shortly thereafter. Martin and Johnson spoke for approximately 5 to 10 minutes. During that time, Martin informed Johnson of potential charges and informed Johnson that police would be obtaining a search warrant for Johnson's residence. Martin did not ask specific questions of Johnson, but Martin made statements to Johnson to the effect that Martin was willing to listen if Johnson wanted to explain what happened at the robberies....
To continue reading
Request your trial
-
State v. Malone
...).89 See Britt , supra note 88.90 Id.91 Miranda v. Arizona , 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).92 State v. Johnson, 308 Neb. 331, 953 N.W.2d 772 (2021).93 Id.94 See, id. ; State v. Benson , 305 Neb. 949, 943 N.W.2d 426 (2020).95 177 Neb. Admin. Code, ch. 7, § 002.01 (200......
-
State v. Franklin
... ... challenge because of race. Id ... A ... defendant satisfies the requirements of the first step by ... producing evidence sufficient to permit the trial judge to ... draw an inference that discrimination has occurred. State ... v. Lester, supra ... See, also, Johnson v ... California , 545 U.S. 162, 125 S.Ct. 2410, 162 L.Ed.2d ... 129 (2005) (defendant satisfies requirements of ... Batson ' s first step by producing ... evidence sufficient to permit trial judge to draw inference ... discrimination occurred). Second, assuming the ... ...
-
State v. Mabior
...[70] Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). [71] State v. Johnson, 308 Neb. 331, 953 N.W.2d 772 (2021). [72] Id. [73] State v. Clifton, 296 Neb. 135, 159, 892 N.W.2d 112, 132 (2017). [74] Id. [75] Cf. Vaughn, supra note 66, ante at 182, 989 N.W.2d at 393 ("'......
-
State v. John
...of counsel. We affirm John's convictions and sentences. AFFIRMED .1 Neb. Rev. Stat. § 24-1106(1) (Cum. Supp. 2020).2 State v. Johnson , 308 Neb. 331, 953 N.W.2d 772 (2021) ; State v. Stack , 307 Neb. 773, 950 N.W.2d 611 (2020) ; State v. France , 279 Neb. 49, 776 N.W.2d 510 (2009) ; State v......