State v. Sanders
| Decision Date | 27 March 2007 |
| Docket Number | No. A-06-523.,No. A-05-1415.,A-05-1415.,A-06-523. |
| Parties | STATE of Nebraska, Appellee, v. Leon SANDERS, Jr., Appellant. |
| Court | Nebraska Court of Appeals |
Franklin E. Miner, Lincoln, for appellant.
Jon Bruning, Attorney General, and George R. Love, Columbus, for appellee.
Leon Sanders, Jr., was convicted of one count of theft by shoplifting and three counts of burglary. He appeals, alleging that the district court for Lancaster County erred in denying his motions to exclude certain evidence from trial and in granting the State's motion for joinder. Sanders further alleges that he was denied the effective assistance of counsel in pretrial proceedings and at trial. We conclude that Sanders' assignments of error lack merit, and we therefore affirm.
On February 27, 2005, items were stolen from four Lincoln, Nebraska, businesses. The State charged Sanders with burglary and theft in two separate informations, alleging that he was responsible for the February 27 crimes. We briefly summarize the circumstances surrounding each crime.
In the early morning hours of February 27, 2005, a break-in at the U Stop convenience store at 3747 South 27th Street was reported. The glass in the U Stop's front door was broken out. A surveillance tape recorded an individual breaking the glass out of the front door with a rock and showed him stealing cigarettes from the store. The surveillance video also captured footage of the suspect's vehicle. The suspect was driving a blue, two-door car with what appeared to be an in-transit sticker on the vehicle's back window. After reviewing the surveillance video, an officer with the Lincoln Police Department (LPD) observed that the fourth taillight left of the right side of the vehicle was missing or burned out and determined that the suspect's vehicle was either a late 1980's Buick Somerset or a 1990 or 1991 Buick Skylark.
Village Market at 3211 South 13th Street and Williams Cleaners at 6891 A Street were also burglarized during the early morning hours of February 27, 2005. Glass in the front doors of both businesses was broken out with a rock. Cartons of cigarettes were taken from the Village Market. Gift certificates and some clothing were taken from Williams Cleaners.
A Hy-Vee grocery store was also a target. An individual entered the Hy-Vee at 6919 O Street at approximately 4 a.m. on February 27, 2005, and stole multiple cartons of cigarettes. A Hy-Vee employee on duty during the incident witnessed the theft. This employee, Marlin Pals, gave a description of the suspect and the suspect's vehicle to the police. In response, the police sent out a broadcast for a male of unknown race, standing between 5 feet 9 inches and 6 feet tall and weighing between 180 and 200 pounds. The broadcast indicated that the suspect was driving a 1990's darker Chevrolet four-door car with "intransits."
On March 19, 2005, two LPD officers located a vehicle that matched the description of the vehicle from the U Stop burglary. They located this vehicle at an apartment complex on Arapahoe Street. After discussing the vehicle's similarities to the vehicle involved in the U Stop burglary, one officer opened the vehicle's left front door and pressed his foot on the brake pedal while the other officer observed the taillights. The observing officer noticed that one taillight was burned out or missing and that it was in the same position as the missing taillight on the vehicle driven by the suspect in the U Stop burglary.
Other LPD officers charged with investigating these crimes created a photographic lineup of possible suspects. A photograph of Sanders was included in the lineup. An officer showed Pals the lineup on March 22, 2005, and Pals identified Sanders as the party responsible for the theft at Hy-Vee.
On May 9, 2005, the State filed an information in the district court for Lancaster County in case No. CR05-308 charging Sanders with theft by shoplifting in violation of Neb.Rev.Stat. § 28-511.01 (Reissue 1995) for taking possession of goods or merchandise of the Hy-Vee located at 6919 O Street on February 27. On August 3, the State filed an information in the district court for Lancaster County in case No. CR05-584 charging Sanders with three counts of burglary under Neb.Rev. Stat. § 28-507 (Reissue 1995) for breaking and entering the respective premises of Village Market, U Stop, and Williams Cleaners.
On August 11, 2005, the State filed a motion to join the cases for trial. On August 12, Sanders filed a motion to sever the various counts in case No. CR05-584 for separate trials. After a hearing on both motions, the district court concluded that the evidence in both cases would be similar and that, "[i]f believed, it displays a series of events which are all tied together by the testimony of a witness, to whom [Sanders] admitted all four offenses." The court concluded that Sanders would not be prejudiced by having all four counts tried together and therefore consolidated the cases for trial.
Sanders filed several evidentiary motions that are relevant to this appeal. He filed a motion to suppress any evidence of identification of him by Pals, including an in-court identification, which motion the court overruled. The court also determined, after a hearing requested by Sanders, that statements made by Sanders to private citizens were made freely, voluntarily, knowingly, and intelligently and were therefore admissible at trial. Finally, during trial, Sanders orally moved to suppress evidence obtained as a result of the warrantless search of his vehicle on March 19, 2005. The court also overruled this motion.
A jury trial was held from September 14 to 22, 2005. The jury returned a verdict of guilty on all counts. A judgment was subsequently entered, and Sanders was sentenced to 1 to 3 years' imprisonment for theft by shoplifting and 2 to 3 years' imprisonment for each count of burglary.
On November 3, 2005, Sanders filed a notice of appeal in each case. However, because Sanders failed to include the required documents with the notice of appeal in case No. CR05-308, an appeal was not docketed in that case. Sanders, with the assistance of new counsel, filed a motion for postconviction relief, claiming that he was denied effective assistance of counsel because his trial counsel failed to perfect his appeal and caused him to lose the opportunity for appellate review. On April 19, 2006, after an evidentiary hearing was held, the district court granted Sanders' request for a new direct appeal and Sanders was given 30 days from the date of the order to file a direct appeal. On May 3, Sanders filed a notice of appeal in case No. CR05-308.
The two cases have been consolidated on appeal.
Sanders alleges, consolidated and restated, that the district court erred in (1) denying his motion to suppress an in-court identification of him by Pals; (2) granting the State's motion for joinder and denying his motion to sever the cases for trial; (3) denying his motion to suppress evidence obtained as the result of a warrantless search of his vehicle; and (4) denying him effective assistance of counsel in pretrial proceedings and at trial, because (a) Sanders' trial counsel ignored the importance of whether Sanders' admissions to private citizens were voluntarily made and then, at trial, failed to object to the use of the admissions and (b) during closing arguments, trial counsel failed to object to statements of the prosecutor's opinion regarding Sanders' guilt.
In his first assignment of error, Sanders asserts that the district court erred in denying his motion to suppress Pals' in-court identification. In support of this assignment, Sanders argues that Pals "was unsure of his recollection of individuals he saw the night of the theft at the Hy-Vee grocery [and that] Pals did not identify Sanders as the person taking cigarettes in the store, rather, that Sanders was in the store the night of the theft." Brief for appellant at 16. Specifically, Sanders argues that Pals had a limited view of the theft suspect and that his description of the suspect did not match his description of the second person he saw exiting Hy-Vee. Sanders also points out that Pals expressed uncertainty about the suspect's identity and recanted his initial description of the suspect by writing a letter to the police to change details about his description. Sanders therefore asserts that under the totality of the circumstances, Pals' identification of Sanders was "unnecessarily suggestive and conducive to irreparably mistaken identification." Id.
A trial court's ruling on a motion to suppress is to be upheld on appeal unless its findings of fact are clearly erroneous. State v. Newman, 250 Neb. 226, 548 N.W.2d 739 (1996). 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, rather, recognizes the trial court as the finder of fact and takes into consideration that it observed the witnesses. Id.
An identification procedure is constitutionally invalid only when it is so unnecessarily suggestive and conducive to an irreparably mistaken identification that a defendant is denied due process of law. State v. Smith, 269 Neb. 773, 696 N.W.2d 871 (2005). 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. Id. The factors to be considered 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...
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