State v. Robinson

• Decision Date: 17 November 1989
• Docket Number: No. 82-028,82-028
• Citation: 233 Neb. 729,448 N.W.2d 386
• Parties: STATE of Nebraska, Appellee, v. Darwin J. ROBINSON, Appellant.
• Court: Nebraska Supreme Court

Page 386

448 N.W.2d 386

233 Neb. 729

STATE of Nebraska, Appellee, v. Darwin J. ROBINSON, Appellant.

No. 82-028.

Supreme Court of Nebraska.

Nov. 17, 1989.

Syllabus by the Court

1. Criminal Law: Trial: Evidence. In order to preserve a question as to the admissibility of evidence not ordered suppressed, a criminal defendant must object to that evidence at trial.

2. Motions to Suppress. On a motion to suppress evidence, the trial court, as the trier of fact, is the sole judge of the credibility of witnesses and the weight to be given their testimony and other evidence.

3. Motions to Suppress: Appeal and Error. In reviewing a trial court's ruling on a motion to suppress, the Supreme Court will not reweigh or resolve conflicts in the evidence, but will uphold the trial court's findings of fact unless those findings are clearly wrong.

4. Due Process: Identification Procedures. A claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding it.

5. Trial: Identification Procedures. Evidence of an extrajudicial identification is admissible when made under circumstances precluding the suspicion of unfairness or unreliability and where the person making the out-of-court identification is present at the trial and subject to cross-examination.

6. Trial: Identification Procedures. The factors to be considered in determining the likelihood of misidentification in an extrajudicial identification are the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.

7. Police Officers and Sheriffs: Arrests: Probable Cause. Pursuant to Neb.Rev.Stat. § 29-404.02(1) (Reissue 1985), a peace officer may arrest a person without a warrant if the officer has reasonable cause to believe that such person has committed a felony.

8. Police Officers and Sheriffs: Arrests: Probable Cause. When a law enforcement officer has knowledge, based on information reasonably trustworthy under the circumstances, which justifies a prudent belief that a suspect has committed a felony, the officer has probable cause to arrest without a warrant.

9. Search and Seizure: Arrests. When a lawful arrest is made, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction.

10. Constitutional Law: Right to Counsel: Confessions. Once an accused's sixth amendment right to counsel has attached, the government may not, in the absence of accused's counsel, deliberately elicit incriminating statements from the accused through the use of third persons.

11. Constitutional Law: Right to Counsel. An accused's sixth amendment right to counsel attaches at or after the initiation of adversary judicial criminal proceedings--whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.

12. Records: Presumptions: Appeal and Error. An affirmative showing in the bill of exceptions that a statement in a journal entry contained in the transcript is false overcomes the presumption of truthfulness a journal entry otherwise carries.

Thom K. Cope of Bailey, Polsky, Cada, Cope & Wood, Lincoln, for appellant.

Robert M. Spire, Atty. Gen. and Lynne R. Fritz, Lincoln, for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

CAPORALE, Justice.

I. INTRODUCTION

In this reinstated appeal, defendant, Darwin J. Robinson, challenges his convictions pursuant to verdicts on charges of robbery, in violation of Neb.Rev.Stat. § 28-324 (Reissue 1985), and the use of firearms to commit a felony, in violation of Neb.Rev.Stat § 28-1205(1) (Reissue 1985), and of being a habitual criminal as defined in Neb.Rev.Stat. § 29-2221 (Reissue 1985). His seven assignments of error combine to urge that the trial court erred (1) in declining to suppress certain evidence and (2) in submitting the robbery and firearms charges to the jury and finding the evidence sufficient to support all the charges. We affirm.

II. SUPPRESSION TESTIMONY

At the hearing on Robinson's suppression motions, Marvin Pfeifer, the assistant manager of an Omaha Kwik Shop convenience store, testified that on January 31, 1981, he was on duty between midnight and 7 o'clock that morning. Robinson entered the store around 6:30 a.m., stood by the magazine rack for some time, and engaged Pfeifer in a "four to five" minute conversation about the weather. According to Pfeifer, "Somebody was getting gas, and I was watching.... And when I turned around, he had a knife in my back." Pfeifer turned slightly and was able to see both the knife and that Robinson was the person holding it. Pfeifer complied with Robinson's instruction to "[o]pen the register" and, at Robinson's further order, took all the money from the cash register and placed it in Robinson's hand, whereupon Robinson walked out of the store. As he was leaving the store, employee Michael Klaumann was entering. Pfeifer immediately informed Klaumann that Robinson had robbed the store, and subsequently summoned the police.

Pfeifer described the lighting in the store as "excellent" on the morning in question. Thus, he had ample opportunity to see Robinson's face during the half hour or so Robinson was in the store prior to the robbery, and there was no question in his mind but that Robinson was the man who had robbed him. We note Pfeifer's additional testimony that he had never been shown any photographs by the police, had never seen Robinson in any lineup, and, in fact, had not been called upon to identify the robber until the preliminary hearing in this prosecution.

As Klaumann tells it, he arrived for work at the Kwik Shop at about 6:55 that morning, and as he "was pulling into the parking lot ... saw that there was a man standing behind Marvin behind the counter--the cash register." Klaumann got out of his automobile, and "the man who was behind the counter" walked out of the door as Klaumann was walking in. Klaumann testified that the area was well lit and that he observed the individual well enough to recognize him again; according to Klaumann, "He had been in the store before."

After Pfeifer told him, "[T]hat's the man that robbed me," Klaumann immediately left and followed Robinson. Using his own vehicle, Klaumann followed a white automobile from the Kwik Shop to a parking lot. Klaumann then located a police patrol vehicle, reported what he had seen, and identified the automobile for police officers. Klaumann admitted that he had not seen the robber get into the white automobile, nor had he seen the driver exit that vehicle. In any event, Klaumann returned to the Kwik Shop. Sometime later the same day, a police officer approached him there and showed him a photograph, which Klaumann identified as depicting the robber. This was the only time police officers showed any photographs to Klaumann; he participated in no other photographic showup.

However, at "around 10 or 11 in the morning," police officers brought Robinson himself to the Kwik Shop in a patrol vehicle. The officers presented Robinson to Klaumann in the store, and Klaumann told the officers that Robinson was the robber. At the suppression hearing, Klaumann again identified Robinson as the man he had seen walking out of the store as he walked in.

Police Officer James Patterson and Sgt. Don Crinklaw were on duty during the early morning hours of January 31, 1981. About 8:20 a.m., Patterson received a report of a stolen automobile. He also learned from police sources that the vehicle had allegedly been involved in a robbery and had been towed away by police. When Patterson and Crinklaw arrived at the location from which the stolen automobile report had originated, a young woman identifying herself as "Shirley Robinson" told them that her automobile had been stolen. Crinklaw asked for a photograph of Robinson, which the young woman gave him. He left for the Kwik Shop with the photograph before learning the young woman's true identity as that of Edna Lyncook, a fact she admitted when later informed by Patterson that the automobile she had reported stolen was suspected of having been used in a robbery and had been towed by police. Lyncook also told Patterson that Robinson was at her residence, an apartment some flights above Robinson's, and that she had left the door unlocked. Officers then went to the Lyncook apartment and arrested Robinson.

Officers also went to Robinson's apartment and awakened the genuine Mrs. Robinson, who apparently had been sleeping in the Robinson apartment, and, according to Patterson, received permission from her to search the apartment for items of clothing worn by the Kwik Shop robber. Mrs. Robinson, however, denied having given the police permission to search. As a result of the search, police located a blue windbreaker-type jacket, which Klaumann identified as the jacket worn by the robber.

Robinson was then transported to the police station, where he was searched. Fifty dollars in paper money was found in his back pocket in the following denominations: two $10 bills, one $5 bill, and twenty-five $1 bills.

Robinson's first trial ended in a mistrial. A few days later, the district court took up the State's motion to endorse Robert Koppock as a new witness for use at retrial. Robinson objected "as to the relevancy and as to constitutional issues that were raised by this procedure." The district court then conducted a proceeding in the nature of a suppression hearing to determine the admissibility of Koppock's testimony. At the conclusion of that hearing the district court ruled that "that part of the testimony in which [Robinson] described the place that he robbed and admits [the robbery]...