State v. Pope

• Decision Date: 08 November 2022
• Docket Number: A-21-984
• Parties: State of Nebraska, Appellee, v. Temarco S. Pope, Jr., Appellant.
• Court: Nebraska Court of Appeals

State of Nebraska, Appellee, v. Temarco S. Pope, Jr., Appellant.

No. A-21-984

Court of Appeals of Nebraska

November 8, 2022

THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the District Court for Lancaster County: Ryan S. Post Judge. Affirmed.

Jonathan M. Braaten, of Anderson, Creager & Wittstruck P.C., L.L.O., for appellant.

Douglas J. Peterson, Attorney General, and Nathan A. Liss for appellee.

Pirtle, Chief Judge, and Arterburn and Welch, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

WELCH, JUDGE.

INTRODUCTION

Temarco S. Pope, Jr. appeals his convictions of possession of a firearm by a prohibited person, subsequent offense, and possession of marijuana, more than one pound. He contends that (1) the district court erred in overruling his motions to suppress and motion to quash, and in sustaining the State's motion in limine; (2) the evidence was insufficient to support his conviction of possession of a firearm by a prohibited person, subsequent offense; (3) the sentences imposed were excessive; and (4) trial counsel "was ineffective in the general trial strategy." Brief for appellant at 7. For the reasons set forth herein, we affirm.

STATEMENT OF FACTS

Facts Leading to Arrest

On June 5, 2020, Lincoln police officer John Hudec was traveling on I-80 when he observed a vehicle with out-of-state plates with the driver's side tires driving on the yellow shoulder line. Officer Hudec's radar clocked the vehicle going 74 m.p.h. in a 65-m.p.h. zone. Hudec also observed that the vehicle was following too closely and failed to signal a lane change. The events of the traffic stop were captured on Officer Hudec's cruiser camera and were received into evidence at trial.

As Officer Hudec approached the vehicle, which he learned was a rental vehicle by running the vehicle's license plate, he contacted the driver of the vehicle and the front passenger who was identified as Pope. The driver provided Officer Hudec with his identification but did not have registration or rental paperwork for the vehicle. Officer Hudec requested that the driver accompany him to his cruiser while he issued him a warning. Officer Hudec completed a data check on the driver which indicated that the driver had a substantial criminal history including involvement with narcotics.

Officer Hudec observed that the driver appeared nervous during their interactions despite that he was only issuing him a warning. The driver indicated that they had been coming back from Colorado from visiting the driver's sister. During this time, Officer Hudec stated he observed that the artery in the driver's neck was pulsating and the driver was unable to provide any paperwork or information as to who had rented the vehicle that he was driving.

In order to obtain more information on the rental vehicle Officer Hudec exited his cruiser to obtain the VIN number from the vehicle. During this time, he asked Pope about the nature of the trip which Pope was unable to answer immediately. After thinking about the answer for a moment, Pope stated that he and the driver were returning to Des Moines, Iowa, from protests in "Hampton." Officer Hudec was familiar with Hampton, Nebraska, but was not aware of a Hampton, Colorado. When asked, Pope was unable to identify in what state "Hampton" was located.

Officer Hudec returned to the cruiser and informed the driver that he was free to go but then asked if the driver would be willing to answer more questions. The driver agreed. Officer Hudec asked if there was contraband in the vehicle in which the driver responded that there was not. Officer Hudec then received consent from the driver to search the vehicle. While their vehicle was searched, Pope and the driver were placed in the backseat of the cruiser for the safety of the individuals and the officers. During the search of the vehicle, Officer Hudec and another officer who had been called to assist, located a 9-millimeter pistol including a magazine and six rounds of ammunition under the floormat of the front passenger seat. Officers also located a bag in the rear cargo area that contained approximately 1.9 pounds of marijuana in dispensary containers, several receipts, and a cell phone. The receipts showed purchases from various marijuana dispensaries in Colorado made the previous day. There was also a receipt dated 2 days prior from a gas station in Des Moines, Iowa.

During the search of the rental vehicle, the cruiser camera was still recording and captured a conversation between the driver and Pope wherein Pope stated "I can't take that pipe, bro" referring to the pistol. The driver asked Pope why he did not hide it, and Pope responded, "Bitch, I put it under the floorboard under the rug." During the conversation, Pope also asked whether the officers "know that's weed" as the officers were searching the cargo area of the vehicle. The two began discussing what they had told Officer Hudec about their trip and Pope reiterated that he "can't take the pipe" and the driver responded, "I got you."

Following the search of the vehicle, Officer Hudec read both the driver and Pope their Miranda rights, which they waived. Officer Hudec asked the two how much marijuana was in the car and neither party responded. Officer Hudec exited the cruiser again, and the parties again began conversing while the cruiser camera was recording. They discussed that they believed the amount of marijuana in the rental car was under 2 pounds. When Officer Hudec returned and asked who the gun belonged to, the driver stated, "it's mine." Officer Hudec asked whether Pope's DNA would be found on the pistol, and Pope said no but declined to take a DNA test. Officer Hudec again left the cruiser and the camera captured Pope apologizing to the driver stating, "it's my fault" since he had asked the driver to come with him. As a result of these events, Pope was charged with possession of a firearm by a prohibited person, and possession of marijuana, more than one pound. The State later amended the possession of a firearm charge to allege that it was a second or subsequent offense.

Pretrial Motions

Prior to trial, Pope filed several pretrial motions including three motions to suppress and a motion to quash. The first motion to suppress sought "to suppress all evidence seized from [Pope], including, but not limited to, any visual and auditory observations made by the officers of the Lancaster County Sheriff's Office for the reason that the officers lacked probable cause to stop [Pope]." The second motion to suppress sought to suppress "any and all pre-trial admissions or statements made by [Pope] to any law enforcement personnel, for the reasons that such statements were not made and rights were not waived knowingly, intelligently, and voluntarily . . . and were obtained in violations of [Pope's] rights." The third motion to suppress sought to suppress

any and all items of evidence seized from [Pope], . . . his motor vehicle or any other place in which he had an expectation of privacy for any one or more of the following reasons:

1. Said items of evidence were taken from [Pope] or [an] area in which he had an expectation of privacy without any valid or legal consent to seize the same. Any alleged consent was tainted by the unlawful arrest of [Pope].

2. There existed no reasonable suspicion or probable cause for the search or seizure of any of . . . said evidence.

3. Said search for and seizure of said items of evidence violated [Pope's federal and state constitutional rights] and . . . relevant provisions of the Nebraska Revised Statutes.

4. The search and seizure was not incident to a lawful arrest, nor is it allowed pursuant to any other recognized exception to the warrant requirement.

5. Said search and seizure was not conducted pursuant to a lawfully issued warrant from any court or magistrate.

Each of these motions to suppress were denied by the district court.

Pope also filed a motion to quash the State's amended information because "there is a defect apparent upon the face of the record, to wit: Count I in the Amended Information setting forth a penalty if a IB felony classification as applied to [Pope] in this matter is in violation of Neb. Const. art. I, [§] 15 . . . that requires all penalties shall be proportioned to the nature of the offense." This motion to quash was denied by the district court.

The State filed a motion in limine requesting an order precluding the defense from arguing, adducing evidence, or in any way commenting, during opening statement, cross-examination, direct examination, or closing argument, on the following; as such evidence constitutes hearsay, assumes facts not in evidence, is contrary to law, and would tend to mislead the jury.

1.That [the driver] made any statements regarding the ownership of the handgun found in the vehicle that . . . Pope . . . was traveling in unless or until [the driver] testifies in open court, under oath and subject to cross-examination.

2.That . . . Pope . . . be prohibited, should he elect to testify, from commenting or testifying about any statements made by [the driver], in particular any and all statements regarding the ownership of the handgun.

3. Further, if [Pope] intends to subpoena [the driver] to testify, the then State respectfully requests that a hearing be held pursuant to Neb. Rev. Stat. [§] 27-513(2) outside the presence of the jury to determine if [the driver] will assert his 5^th [A]mendment privilege against self-incrimination if called to testify and if it is determined that he will that [the driver] not be allowed to appear before the jury as it would be prejudicial to the State.

The district court sustained the State...