State v. Savage
| Decision Date | 14 December 2018 |
| Docket Number | No. S-17-1166.,S-17-1166. |
| Citation | 920 N.W.2d 692,301 Neb. 873 |
| Parties | STATE of Nebraska, Appellee, v. Courtney J. SAVAGE, Appellant. |
| Court | Nebraska Supreme Court |
Darik J. Von Loh, of Hernandez Frantz, Von Loh, Lincoln, for appellant.
Douglas J. Peterson, Attorney General, and Austin N. Relph, Lincoln, for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.
Courtney J. Savage was arrested and charged with possession of a controlled substance with intent to deliver, in violation of Neb. Rev. Stat. § 28-416(2)(a) (Reissue 2016), a Class II felony. He was further alleged to be a habitual criminal pursuant to Neb. Rev. Stat. § 29-2221 (Reissue 2016). During trial, the State produced evidence of text messages from what was purported to be Savage’s cell phone, which indicated that Savage was selling the illegal drug methamphetamine. Savage objected to the offer of the text messages on foundation and hearsay grounds, primarily arguing that the identity of the message author was unclear. The district court overruled his objections, and after trial, a jury found Savage guilty. The district court determined that Savage was a habitual criminal and ordered him to serve 10 to 18 years in prison. Savage appeals from his conviction.
Savage was arrested and charged with possession of a controlled substance with intent to deliver, in violation of § 28-416. Further, he was alleged to be a habitual criminal pursuant to § 29-2221. Following trial, he was convicted and found to be a habitual criminal. Savage was subsequently sentenced to a term of 10 to 18 years’ incarceration. The facts of his arrest and trial leading to his conviction follow.
During the night of February 16, 2017, and the early morning hours of February 17, Lincoln Police Department officers Anthony Gratz and Andrew Barksdale arrested Michael Dryden for possession of methamphetamine with intent to deliver. After being brought to the police station to be interviewed, Dryden received several text messages from an individual referred to as "Pint" seeking to sell Dryden methamphetamine. Later, through a review of the Lincoln Police Department’s records management system, it was learned that "Pint" was a nickname for Savage.
With Dryden’s permission, the officers borrowed Dryden’s cell phone and continued to communicate with Savage, hoping to find him and arrest him for his potential illegal methamphetamine sale to Dryden. After multiple text messages were exchanged, a meeting to purchase methamphetamine was arranged to occur at an agreed-upon location in Lincoln, Nebraska. When the officers arrived at that location, they parked in a nearby alleyway, began surveillance, and continued the text conversation.
The officers received a message from Savage’s cell phone indicating that he was at the agreed-upon location. Seeing no one arrive, the officers drove around the block. The officers then saw a blue two-door Toyota. The police cruiser and the Toyota were the only vehicles in the area. Almost immediately after the police saw the Toyota drive by, Dryden’s cell phone received a text message stating: "Police [are] outside."
The officers concluded that Savage was in the passing Toyota. The officers followed the Toyota and observed it fail to properly signal a turn. The officers initiated a traffic stop of the Toyota.
During the stop, one of the officers approached the driver’s side of the Toyota while the other officer approached the passenger’s side. Gratz made contact with the driver, Johnathon Addleman, and asked for his license and registration. When Addleman failed to produce the requested documentation, Gratz asked him to exit the Toyota. Savage was sitting in the passenger seat of the Toyota and appeared to be using his cell phone. Another passenger, Christine Tannehill, was in the back seat.
While Gratz was questioning Addleman, Barksdale attempted to make contact with Savage in the passenger seat. However, Savage would not acknowledge Barksdale and maintained eye contact with his cell phone. After some time, Savage opened the door to speak with Barksdale. At that point, Barksdale observed that Savage’s zipper was undone and a part of his pants was pulled through the zipper opening.
Addleman later explained to Gratz that as the officers were pulling the Toyota over, Savage was "wrestling around in the groin area of ... his pants" and threw a bag at Tannehill, instructing her to "put it in [her] pussy." Tannehill was questioned by the officers, at which time she admitted to having methamphetamine on her person and turned it over to the officers. At trial, several of the State’s witnesses, including Gratz and Barksdale, testified that it was common for individuals possessing drugs to hide them in or near their genitalia.
Within the surrendered bag, there were three smaller individual bags, each of which pretested positive for amphetamine. Later, a laboratory test confirmed that the substance was methamphetamine. The three bags, collectively, contained in excess of 7.6 grams of the substance. In addition to the bags of methamphetamine, an officer collected each person’s cell phone. Later, the cell phones were analyzed and data was extracted for investigative purposes.
Prior to trial, Savage filed a motion in limine to exclude evidence of various text messages contained on Savage’s and Dryden’s cell phones. Savage argued that the State would be unable to authenticate the text messages because, although the messages were being sent from Savage’s cell phone, there was no way to prove that Savage was the one texting Dryden at the relevant time. Savage further argued that the text messages would be hearsay and overly prejudicial. The State responded that it could produce the foundation for admission of the text messages into evidence by (1) proving that the cell phone in question was Savage’s, (2) proving that the cell phone was in Savage’s possession at the time of his arrest, and (3) presenting witness testimony that Savage was sending the messages at issue. The district court overruled Savage’s motion in limine.
At trial, the State had several witnesses testify as to the events of February 16 and 17, 2017, including Gratz, Barksdale, Dryden, Addleman, and Tannehill. Gratz and Barksdale specifically testified that a typical "personal use amount" of methamphetamine was about 0.2 grams, thereby indicating that the amount in this case was a "dealer quantity."
During Gratz’ testimony, the State offered exhibit 6, photographs of the text conversation between the officers and Savage’s cell phone, into evidence. Savage objected to this on foundation and hearsay grounds, asserting that the State did not prove that Savage authored those text messages. The State claimed that it had met its burden regarding foundation and authentication, insofar as Gratz testified that he saw Savage using Savage’s cell phone at the time of the arrest. The district court overruled Savage’s objection.
The State also offered into evidence exhibits 8 and 23, portions of extractions from Savage’s and Dryden’s cell phones containing text messages and cell phone logs from the relevant time period. A police officer testified that he extracted and analyzed the data from Savage’s cell phone using a program called Cellbrite. The officer stated that he found that Savage’s cell phone’s wireless network tethering service, or access point, had "Savage 11" as the password associated with it. Another police officer testified that he extracted and analyzed the data from Dryden’s cell phone also using the Cellbrite program.
Savage objected to both exhibits 8 and 23 on hearsay, foundation, best evidence, and completeness grounds. Savage elaborated that exhibit 23 was inadmissible because (1) the State did not prove that Savage authored the relevant messages and (2) it was only a portion of the Cellbrite report. The district court overruled the objections.
Both Dryden and Addleman testified in the State’s case in chief pursuant to cooperation agreements. Dryden testified that as a dealer of methamphetamine, he purchased that drug from Savage, whom he knew only by the name "Pint," on a few occasions. However, Dryden stated that he communicated with Savage only through a family member of Savage’s and never spoke to Savage on the cell phone directly. In fact, Savage was not listed as a contact in Dryden’s cell phone. Dryden also testified that Tannehill was always present during these sales and that she appeared to be "overseeing" the operation.
Addleman testified that he met Savage and Tannehill at a house in Lincoln and agreed to give them a ride to another location where they were allegedly going to drop off a large amount of methamphetamine. Addleman stated that Tannehill was giving directions to the address while appearing to use Savage’s cell phone.
Addleman asserted that after the arrest, Savage devised a plan to implicate Tannehill. Addleman agreed with Savage’s request that he sign a notarized statement implicating Tannehill. In his testimony, he claimed that Savage had him rewrite the statement approximately four times. Addleman asserted that he agreed to write the statement only because he wanted to avoid being labeled a "snitch" while at the jail. After he was released from jail, Addleman immediately contacted the public defender’s office and the police department to advise them of Savage’s plan and the falsity of his notarized statement.
Savage called Christina Krueger to testify on his behalf. Krueger was employed with the Lancaster County jail as a correctional officer. She testified that in the course of her employment, she regularly watched the inmates and often interacted with them. She stated that during Savage and Addleman’s time in jail, she became familiar with Savage and Addleman and had interacted...
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