State v. Lotter

• Decision Date: 04 September 2009
• Docket Number: No. S-08-449.,No. S-08-450.,No. S-08-451.,S-08-449.,S-08-450.,S-08-451.
• Citation: 771 N.W.2d 551,278 Neb. 466
• Parties: STATE of Nebraska, Appellee, v. John L. LOTTER, Appellant.
• Court: Nebraska Supreme Court

771 N.W.2d 551

278 Neb. 466

STATE of Nebraska, Appellee, v. John L. LOTTER, Appellant.

No. S-08-449.

No. S-08-450.

No. S-08-451.

Supreme Court of Nebraska.

September 4, 2009.

Andre R. Barry, of Cline, Williams, Wright, Johnson & Oldfather, L.L.P., Lincoln, for appellant.

Jon Bruning, Attorney General, and J. Kirk Brown, Lincoln, for appellee.

HEAVICAN, C.J., CONNOLLY, GERRARD, STEPHAN, and McCORMACK, JJ., and INBODY, Chief Judge, and CARLSON, Judge.

McCORMACK, J.

I. NATURE OF CASE

John L. Lotter was convicted of three counts of first degree murder and sentenced to death. The evidence at trial was that Thomas M. Nissen, also known as Marvin T. Nissen, and Lotter planned the murders together, but Nissen testified that it was Lotter who actually killed the victims. Fourteen years after the crimes were committed, Nissen signed an affidavit stating that he committed perjury at Lotter's trial and that he, not Lotter, actually killed the victims. Lotter appeals from the district court's order denying his second pro se motion for postconviction relief.

II. BACKGROUND

In May 1995, Lotter was convicted of three counts of first degree murder, three counts of use of a weapon to commit a felony, and one count of burglary in connection with the December 1993 deaths of Teena Brandon, Lisa Lambert, and Phillip DeVine in Richardson County, Nebraska. Lotter was sentenced to death for each count of first degree murder and to incarceration on the burglary and use of a weapon convictions.

Before Lotter's trial, Nissen was convicted in a separate trial of first degree murder in the death of Brandon and second degree murder in the deaths of Lambert and DeVine.¹ While Nissen's sentencing hearing was pending, Nissen entered into a plea agreement with the State. The agreement provided that Nissen would testify truthfully against Lotter at Lotter's trial and that, in exchange, the State would not pursue the death penalty against Nissen for Brandon's murder.

At Lotter's trial, Nissen testified that he and Lotter traveled to Lambert's house, where they knew Brandon was staying, in order to kill Brandon. Nissen and Lotter had previously raped Brandon, and they were angry that she had reported the rape to the police. Nissen testified that he and Lotter agreed they would also kill anyone else they found there. Nissen testified that he stabbed Brandon, but that Lotter fired the shots that killed all three victims.

In addition to Nissen's testimony, other evidence at trial established that on the night of the murders, Lotter stole the gun used to murder the victims and that Lotter obtained the knife and the yellow work gloves worn during the crimes. Just before the killings, both Nissen and Lotter were seen wearing gloves. The evening of the murders, Lotter told a witness he wanted to kill someone. And after the murders, Nissen and Lotter sought to obtain alibis from Nissen's wife and Lotter's girlfriend. Finally, there was evidence indicating that Lotter had traveled to Lincoln, Nebraska, looking for Brandon in order to murder her.

Lotter testified in his own defense and denied any participation in either the planning or the perpetration of the murders. Lotter stated he was not present when the murders were committed. He testified that Nissen had not been truthful in his testimony regarding Lotter's involvement in the crimes and that other witnesses who gave incriminating testimony against him were either lying or mistaken.

In sentencing Lotter to the death penalty, the sentencing panel found the following aggravating circumstances to be applicable. For Lambert and DeVine, the panel found in each case that "`[t]he murder was committed in an apparent effort ... to conceal the identity of the perpetrator of a crime'"<sup>2</sup> and that "`[a]t the time the murder was committed, the offender also committed another murder.'"³ As to the murder of Brandon, the panel found that at the time the murder was committed, the offender also committed another murder⁴ and that "`[t]he crime was committed to disrupt or hinder ... the enforcement of the laws.'"⁵

When comparing Lotter's and Nissen's participation in the homicides, the sentencing panel stated that the evidence, based largely upon Nissen's testimony, was that Lotter fired all the shots that killed the three victims. But the panel explained that even if it was Nissen, and not Lotter, who actually killed Brandon by stabbing her, "there is no appreciable difference in degree of culpability between these Co-Defendants during the actual commission of the homicides."⁶ In comparing the actions of Nissen and Lotter after the commission of the crimes, however, the sentencing panel stated that Nissen's statements to investigators, as well as Nissen's agreement to testify against Lotter at trial, distinguished his conduct from Lotter's.

Lotter's convictions were affirmed on direct appeal.⁷ Lotter then moved for postconviction relief, was appointed counsel and was granted an evidentiary hearing in 1999. In this motion, Lotter alleged that Nissen, not Lotter, had shot and killed the three victims and that the State knew or should have known Nissen's testimony was perjured. In support of this assertion, Lotter relied on an affidavit of Jeff Haley, an inmate incarcerated with Nissen. Haley averred that Nissen told him that he had fired the shots and that, as Nissen shot the victims, Lotter was "`freaking out and running around,'" saying "`What are you doing?'"⁸ According to Haley, Nissen stated that he should have shot Lotter as well and then there would have been no witnesses. Lotter also filed a motion for writ of error coram nobis and a motion for new trial based on the statements allegedly made by Nissen to Haley.

At the evidentiary hearing, Nissen pled the Fifth Amendment and refused to answer any questions. The district court concluded that Haley's testimony as to what Nissen had allegedly said to him was inadmissible hearsay. And the district court found that the inadmissible hearsay did not fall within the penal interest exception to the hearsay rule,⁹ because there were no corroborating circumstances clearly indicating the trustworthiness of the testimony.¹⁰

Having no admissible evidence before it to support Lotter's claims, the district court denied all relief, and we affirmed. We agreed that the district court properly excluded Haley's testimony and that thus, such statements could not form the basis of any claim that Nissen's trial testimony was perjured. Since Lotter failed to present any other evidence that was unavailable during direct appeal that could show the State knew Nissen's testimony was perjured, we held that the court properly denied postconviction relief. For similar reasons, we concluded that the court was correct to deny Lotter's motions for new trial and writ of error coram nobis.

In 2001, Lotter filed a pro se motion for postconviction DNA testing pursuant to the DNA Testing Act.¹¹ Evidence at Lotter's trial had indicated that the yellow work gloves worn by Nissen at the time of the crime contained two areas that tested positive for blood. The blood had never been subjected to DNA testing. Lotter claimed that if the blood on the gloves and other clothing worn by Nissen that night was shown to be caused by high-velocity blood spatter from Brandon, as opposed to blood from stabbing, or if the blood was shown to be from Lambert and/or DeVine, then it would establish that Nissen was not in the locations he testified he was in during the crime and that Nissen was the shooter, not Lotter.

We upheld the district court's decision to deny the motion.¹² We explained that there would be no way to establish the manner in which the blood had been deposited on the clothing, as opposed to whose blood it was. And since there was any number of ways in which the victims' blood could have been deposited on Nissen's clothing during the crime, whose blood it was would not be probative of whether Nissen was the shooter. Thus, the testing would not result in noncumulative, exculpatory evidence relevant to the claim that he was wrongfully convicted, as required by the DNA Testing Act.¹³

We also rejected Lotter's claim that the DNA evidence could produce noncumulative, exculpatory evidence relevant to the claim that Lotter was wrongfully sentenced, explaining: "As the sentencing panel correctly concluded, the record is barren of any evidence that Lotter was merely an accomplice or that his participation was relatively minor. There was no appreciable difference in the degree of culpability between Nissen and Lotter during the actual commission of the murders."¹⁴ And we stated, again, that the presence of the victims' DNA on the items sought to be tested would not be inconsistent with Nissen's testimony and could not indicate whether Lotter was the shooter.¹⁵

In 2007, Nissen signed an affidavit averring that his testimony in Lotter's trial regarding "who fired the gun" was false. Nissen stated that he, and not Lotter, shot Brandon, Lambert, and DeVine. Nissen did not recant any other portion of his testimony concerning Lotter's involvement in the murders.

Lotter then filed a second pro se motion for postconviction relief, which is the subject of this appeal. The second postconviction motion alleged that Nissen was a critical witness for the State and that during Lotter's trial, Nissen "testified falsely that it was [Lotter] who conceived the idea of killing Lambert, Brandon, and DeVine, and that [Lotter] shot all three of them."

Lotter alleged that his constitutional rights were violated because the State knew or should have known that Nissen was lying at trial. In particular, Lotter alleged that the State was in possession of evidence that Nissen was a "`world class liar'" and a "`con artist.'" In particular, the State was aware of a prior, unrelated incident in which it was documented that Nissen had lied to authorities. The motion further alleged that the State had asked Nissen to take...