State v. Newman

• Decision Date: 02 January 1996
• Docket Number: No. A-94-833,A-94-833
• Citation: 541 N.W.2d 662,4 Neb.App. 265
• Parties: STATE of Nebraska, Appellee, v. John Byron NEWMAN, Appellant.
• Court: Nebraska Court of Appeals

Page 662

541 N.W.2d 662

4 Neb.App. 265

STATE of Nebraska, Appellee, v. John Byron NEWMAN, Appellant.

No. A-94-833.

Court of Appeals of Nebraska.

Jan. 2, 1996.

Syllabus by the Court

1. Motions to Suppress: Appeal and Error. In determining the correctness of a trial court's ruling on a suppression motion, an appellate court will accept the factual determinations and credibility choices made by the trial court unless, in light of all the circumstances, such findings are clearly erroneous.

2. Motions to Suppress: Appeal and Error. In determining whether a trial court's findings on a motion to suppress are clearly erroneous, an appellate court does not reweigh the evidence or resolve conflicts in the evidence, but recognizes the trial court as the finder of fact and takes into consideration that it observed the witnesses.

3. Search and Seizure. While the propriety of an inventory search is judged by a standard of reasonableness, an inventory search must also be conducted pursuant to standardized policies or established routine.

4. Convictions: Appeal and Error. It is only prejudicial error, that is, error which cannot be said to be harmless beyond a reasonable doubt, which requires that a conviction be set aside.

5. Rules of Evidence: Other Acts: Appeal and Error. A review of the admission of other acts evidence under Neb.Rev.Stat. § 27-404(2) (Cum.Supp.1994) requires an appellate court to consider (1) whether the evidence was relevant, (2) whether the evidence had a proper purpose, (3) whether the probative value of the evidence outweighed 6. Trial: Evidence: Other Acts. It is within the discretion of the trial court to determine relevancy and admissibility of evidence of other wrongs or acts, and the trial court's decision will not be reversed absent an abuse of that discretion.

its potential for unfair prejudice, and (4) whether the trial court, if requested, instructed the jury to consider the evidence only for the purpose for which it was admitted.

7. Sexual Assault: Evidence: Other Acts. In crimes involving sexual assault, evidence of other similar sexual conduct has independent relevance, and such evidence may be admissible whether that conduct involved the complaining witness or third parties.

8. Trial: Evidence. Balancing the probative value of the evidence against the danger of unfair prejudice is within the discretion of the trial court.

9. Trial: Evidence: Jury Instructions: Appeal and Error. The question of whether the evidence was unfairly prejudicial, when the other elements for admissibility have been met, depends upon whether the court properly instructed the jury as to its limited use.

10. Criminal Law: Constitutional Law: Evidence. A criminal defendant has a constitutional right to give a voice exemplar without being subject to cross-examination, provided the voice exemplar is relevant to the issues of the case and satisfactory evidence is produced or offered to establish that the exemplar will be genuine.

11. Trial: Identification Procedures. Whether identification procedures were unduly suggestive and conducive to a substantial likelihood of irreparable mistaken identification is to be determined by a consideration of the totality of the circumstances surrounding the procedures.

Dennis R. Keefe, Lancaster County Public Defender, and Webb E. Bancroft, Lincoln, for appellant.

Don Stenberg, Attorney General, and Kimberly A. Klein, Lincoln, for appellee.

HANNON, IRWIN, and MILLER-LERMAN, JJ.

HANNON, Judge.

John Byron Newman appeals his conviction of first degree sexual assault, second or subsequent offense. A woman was sexually assaulted in her apartment while alone with her young child at night, and the issue at trial was the identification of Newman as her assailant. Newman alleges that the trial court erred in not suppressing evidence that the police obtained by a warrantless search of luggage they took from him when they arrested him, which search was not an inventory search; in admitting the testimony of two witnesses under Neb.Rev.Stat. § 27-404(2) (Cum.Supp.1994); in not allowing him to read a voice exemplar to the jury without subjecting himself to general cross-examination; in allowing evidence of an identification from an allegedly suggestive photo lineup; and in finding the evidence sufficient to support the verdict. We conclude that Newman's luggage was unconstitutionally searched, but that the error in introducing the evidence obtained from the search was harmless, and that the trial court did not err in the other manners claimed. We therefore affirm.

STATEMENT OF FACTS

In the early morning hours of March 22, 1993, the victim was home with her 3-year-old son. The victim lived in an apartment building in the 4600 block of Baldwin Avenue in Lincoln. The victim and her son were asleep in the living room, with the television on. The only other light on in the apartment was in the kitchen, which was accessible from the living room. In addition, there is an open cutout in the wall of the living room, through which one can see the kitchen. The victim testified that when the kitchen light is on she can see well enough to read in the living room without other lights in the living room. Lincoln police officer Robert Hurley testified at trial that he re-created the lighting as it was in the victim's apartment at the time of the assault and that although the light coming into the living room was less bright than it was when one stood in the At some point in the evening, the victim woke up after she heard a knock on her front door. The victim looked through the peephole in the front door, but did not see anyone. The victim testified that it was not unusual for a woman friend of hers to stop by her apartment late at night. The victim opened up the door part way and saw the defendant, Newman, standing outside. She asked Newman if he had the wrong apartment. He told her he did not have the wrong apartment. Newman pushed the door open and walked in. The victim began to back up and started kicking and hitting Newman. Newman backed the victim up against the couch in the living room.

kitchen, it was still bright enough in the living room to read and to easily make out facial features and identify clothing.

Newman then pushed the victim down on the couch and began to remove the victim's clothing. The victim testified that she was wearing a green shirt, bra, jean shorts, underwear, a white T-shirt, and shoes and socks. After he had removed all her clothing, Newman lowered his pants and attempted to penetrate her vagina with his penis. The victim testified that Newman was not successful.

Newman then grabbed the victim in a "bear hug" and carried her into her bedroom. Newman threw the victim on the bed and penetrated her vagina with his finger. Newman then put a pillow over the victim's face because he was trying to muffle her crying. Newman again attempted to have sexual intercourse with the victim. The victim testified that all of a sudden, Newman stood up, turned off the light and began to say repeatedly, " 'This didn't happen.' " Newman began putting on his clothes, making sure the whole time that the victim's face was covered up.

The victim then heard a door shut, and she began to get up. Newman came back into the room and said, " 'I told you not to move.' " Newman pushed the victim down, covered her face over with a pillow, and then left. The victim got up, walked out into the front room, and observed that her son had been moved from the recliner in which he was sleeping to the couch. The victim tried to phone the police from her phone in the living room, but discovered that the phone cord had been cut. She also discovered that the clothes Newman had taken off her and left on the floor were missing. The victim phoned the police from her phone in the kitchen. While she was still on the phone with the police dispatcher, the police arrived at her apartment at about 4 a.m. The victim testified that her ordeal lasted roughly 30 minutes.

When the police arrived, the victim described her assailant as a Hispanic male, between 5 feet 6 inches and 5 feet 8 inches tall, with dark hair, an olive complexion, and a moustache. The victim stated that the assailant was wearing a white T-shirt, black pants, and a black leather jacket. She did not describe the assailant's shoes. The victim told the police that she thought that her assailant might have had a slight accent, "because he was short with the words and things. He just sounded different than I'm normally used to."

Police conducted a search, using a dog to track the trail of the suspect leading from the victim's apartment. Lincoln police officer Paul Aksamit, a dog handler for the police department, took his tracking dog to the door of the victim's apartment and commanded that the dog begin tracking. The track headed around the various sides of the victim's apartment building, then northeast, across 47th Street, to an alley in which a dumpster was located. The dog stopped at the dumpster, and Officer Aksamit opened it up and found some clothing. The dog then continued eastward to a parking lot between some buildings in the 4700 block of Baldwin Avenue. The dog then lost the scent. Officer Erin Sims, who accompanied Officer Aksamit on the dog track, inspected the clothes in the dumpster. Officer Sims found a green print shirt, bra, underwear, socks, and jean shorts. At trial, the victim identified the clothing recovered by Officer Sims as the clothing she was wearing the night of her attack.

The police then took the victim to a hospital, where a "rape kit" was administered. The police then took the victim to the police The victim testified that on March 23, 1993, she was shown a second set of photographs, which again consisted of six photographs. The victim was asked whether she recognized her assailant from among the photographs. The victim did not identify any person depicted in the photographs as her assailant. Newman's...