State v. Salamon, S-91-632

• Decision Date: 06 November 1992
• Docket Number: No. S-91-632,S-91-632
• Citation: 241 Neb. 878,491 N.W.2d 690
• Parties: STATE of Nebraska, Appellee, v. Mark J. SALAMON, Appellant.
• Court: Nebraska Supreme Court

Page 690

491 N.W.2d 690

241 Neb. 878

STATE of Nebraska, Appellee, v. Mark J. SALAMON, Appellant.

No. S-91-632.

Supreme Court of Nebraska.

Nov. 6, 1992.

Syllabus by the Court

1. Criminal Law: Trial: Pretrial Procedure: Motions to Suppress: Appeal and Error. In a criminal trial, after a pretrial hearing and order denying a defendant's motion to suppress evidence, the defendant must object at trial to admission of the evidence which was the subject of the suppression motion in order to preserve an appellate question concerning admissibility of that evidence.

2. Trial: Evidence: Appeal and Error. A determination whether evidence is relevant is within a trial court's discretion, and, in the absence of an abuse of discretion, the trial court's ruling on relevance will be upheld on appeal.

3. Trial: Witnesses. A witness' credibility and weight to be given to testimony are matters for determination and evaluation by a fact finder.

4. Trial: Rules of Evidence: Probable Cause. Existence of probable cause, as a prerequisite determinant for admissibility of evidence obtained by a search or arrest, is a preliminary question for a court as a judicial function without intervention of a jury.

5. Rules of Evidence: Witnesses: Hearsay. In the absence of admissibility authorized under the Nebraska Evidence Rules or by other statute, a witness' pretrial statement identifying a defendant as the perpetrator of a crime is hearsay pursuant to Neb.Evid.R. 801(3) and, therefore, is inadmissible as the result of Neb.Evid.R. 802.

6. Criminal Law: Trial: Juries: Appeal and Error. Harmless error exists in a jury trial of a criminal case when there is some incorrect conduct by the trial court which, on review of the entire record, did not materially influence the jury in a verdict adverse to a substantial right of the defendant.

7. Criminal Law: Trial: Evidence: Convictions: Appeal and Error. In the trial of a criminal case, erroneous admission of evidence which is not cumulative may constitute harmless error beyond a reasonable doubt, when a defendant's conviction is supported by overwhelming evidence which has been properly admitted or admitted without objection.

Thomas M. Kenney, Douglas County Public Defender, and Brian S. Munnelly, for appellant.

Don Stenberg, Atty. Gen., and Marilyn B. Hutchinson, for appellee.

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

SHANAHAN, Justice.

A jury in the district court for Douglas County found Mark J. Salamon guilty of robbery. Salamon was sentenced and has appealed. We affirm the judgment entered on Salamon's conviction.

BACKGROUND OF ROBBERY AND IDENTIFICATION

Around 4 p.m. on November 15, 1990, a man called at the front door of the Omaha residence of the victim, an 83-year-old woman. After the two talked for a while, the victim opened the door and admitted the man into the house. As the man entered, he grabbed the victim's hands and tied them with strips of cloth. He began ransacking the residence, discovered some money in the victim's wallet and a coin purse, and then left. The victim was able to free herself and go to a neighbor's house, from which police were summoned. The robbery unit of the Omaha Police Division commenced an investigation and, during its investigation, received information from an anonymous source that Salamon was the robber. A police detective brought photographs of eight individuals, including a photograph of Salamon, who had a police record, to the victim at her home. The victim, when asked whether her robber's photograph was among those displayed, selected Salamon's photograph from among the eight while remarking that the man in the selected photograph "looks like" the man who robbed her. From the photograph, however, the victim was unable to "positively" identify Salamon as the robber. As the result of further investigation, police located Salamon on December 10; proceeded to Salamon's residence; and, without an arrest warrant or Salamon's permission to enter, went into the residence, arrested Salamon, and transported him to police headquarters.

At the police station on the morning of December 11, the police conducted a lineup for the victim's possible identification of her robber. The lineup was separated from a viewing room by a one-way glass to prevent those in the lineup from seeing anyone observing from the viewing room. Before the victim entered the viewing room, she was admonished that although the lineup was used for possible identification of the robber, he might not be among the individuals in the lineup. However, as the victim entered the viewing room, she said to an officer: "I think I see him already," referring to Salamon, who was in the lineup. While Salamon was standing near the one-way glass, the victim, on closer observation of Salamon and further inquiry whether she could identify the man at the glass as her robber, said: "That looks like him.... I think that's him, but I can't be totally positive." When an officer asked whether the victim could be "positive" about an identification, the victim responded: "No, but it looks like him."

SUPPRESSION HEARING

Before trial, Salamon filed two suppression motions. Salamon sought suppression of physical evidence obtained as the result of an unreasonable search and seizure, since the police entered his residence without permission and arrested him without a warrant. See, U.S. Const. amend. IV; Neb. Const. art. I, § 7. In his other motion, Salamon attempted to suppress the victim's pretrial identification of him, because the identification resulted from an impermissibly suggestive process leading to the victim's identification of him. See Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967) (confrontation for identification that is unnecessarily suggestive and conducive to irreparable mistaken identification of a defendant may violate the defendant's right to due process). After the court denied the suppression motions, Salamon's trial commenced on April 2, 1991.

SALAMON'S TRIAL

During Salamon's trial, and as the State's first witness, one of the police officers testified about the victim's pretrial identification of Salamon and described the victim's inability to make a positive identification of Salamon. The officer, over Salamon's objections (relevance and hearsay), recounted presentation of the eight photographs to the victim and her remark, when asked whether she saw the robber's photograph in the group, that the depicted Salamon "looks like" the robber, although she was unable to "positively" state that the man in the photograph was the robber. The officer, again over Salamon's objections (relevance and hearsay), also testified that the victim commented, on entering the lineup viewing room at the police station and observing the lineup for possible identification of the robber: "I think I see him already," and later stated regarding identification of her robber that that "looks like him.... I think that's him...."

Next, the victim testified concerning the events surrounding the robbery. A few days before the robbery, a woman came to the front door of the victim's home and said that the woman's car, with her baby inside, was stalled. The woman, who was unknown to the victim, asked to use the victim's telephone to call her husband. After some telephone calls, the woman said that she was in rather dire financial straits. Since it was near Thanksgiving, the victim gave the woman money for cabfare and informed her that rather than repayment, the money could be "passed on" by the woman to anyone else in need. The woman left. A day or so later, the victim received a telephone call from a woman named "Johnston," who identified herself as the woman who had appeared at the victim's house and received the money from the victim. The caller then asked whether the victim would pay the caller's utility bill of $70. The victim agreed to pay the bill. The woman came to the victim's house, got the $70, and assured the victim that the money would be repaid.

The next day, the victim received another call from the "Johnston" woman, who said that her husband was on his way to the victim's house to repay the $70. Around 4 p.m. that day, while there was still daylight, the victim observed a man walking up the driveway to her house. The man rang the doorbell and, when the victim answered and opened the door, said that he wanted to use the victim's phone to call his wife. As the man entered the house, he grabbed the victim's hands; wrestled her to the floor; and, using strips of cloth, proceeded to tie her hands in front of her and then tie her feet. After binding the victim, the intruder blindfolded her with another strip of cloth, but the blindfold was apparently somewhat askew, so that the victim saw the man search near her refrigerator, pull out kitchen drawers, and pick up her wallet, which contained approximately $50. The man also found the victim's coin purse, containing some loose change. Soon after the man left, the victim untied her hands, unbound her feet, removed the blindfold, and ran to a neighbor's house from which police were summoned. When the police arrived, the victim gave them the cloth strips that had been used to bind and blindfold her. When asked at trial whether she saw her robber in the courtroom, the victim stated, while pointing to Salamon: "Well, he looks like him ... is all I'll say. I, again, I'm not positive."

The State then called Trudie Bruce as a witness. Bruce, also charged with robbing the victim, gave a detailed account of the background for the robbery. Bruce and Salamon were sharing an apartment. After selecting their victim, Bruce and Salamon planned the robbery. Pursuant to their plan, Salamon waited a few blocks from the victim's house, while Bruce went to the victim's home and told a story of misfortune about the stalled car and financial distress, all as related during the victim's testimony. During...