State v. Swoopes

• Decision Date: 24 October 1986
• Docket Number: No. 85-924,85-924
• Citation: State v. Swoopes, 395 N.W.2d 500, 223 Neb. 914 (Neb. 1986)
• Parties: STATE of Nebraska, Appellee, v. Robert D. SWOOPES, Appellant.
• Court: Nebraska Supreme Court

Page 500

395 N.W.2d 500

223 Neb. 914

STATE of Nebraska, Appellee, v. Robert D. SWOOPES, Appellant.

No. 85-924.

Supreme Court of Nebraska.

Oct. 24, 1986.

Syllabus by the Court

1. Criminal Law: Identification Procedures. An array of five photographs is sufficient to constitute a fair and adequate array when attempting to identify a single perpetrator.

2. Criminal Law: Identification Procedures. The determination as to whether the identification procedures were unnecessarily suggestive and conducive to a substantial likelihood of irreparable mistaken identification is to be made by a consideration of the totality of the circumstances surrounding the procedures.

3. Criminal Law: Identification Procedures. The fact that the victim has been advised that one or more of the persons in the lineup may be persons who the police believe may have committed the offense does not make the lineup unduly suggestive.

4. Trial: Evidence: Witnesses. One who wishes to object to an answer given by a witness to a question posed by opposing counsel may not object on the ground that the answer is not responsive, but must object on the ground that the answer is a voluntary statement or for some specific reason such as hearsay or a conclusion of the witness. Only the party asking the question can object on the ground that the answer is not responsive.

5. Convictions: Appeal and Error. A conviction will not be set aside unless the defendant meets his burden of showing that the error claimed created actual prejudice rather than merely the possibility of prejudice.

6. Criminal Law: Lesser-Included Offenses. Because an attempted crime as defined by Neb.Rev.Stat. § 28-201 (Reissue 1985) may be committed without the crime itself being committed, no offense can be a lesser-included offense of an attempted crime prosecuted under § 28-201.

7. Motions to Suppress: Appeal and Error. The Supreme Court will not overturn the trial court's findings of fact when determining the correctness of the latter's rulings on motions to suppress unless those findings are clearly wrong.

8. Appeal and Error. A party cannot be heard to complain of an error which he himself has been instrumental in bringing about.

Richard J. Epstein, Omaha, for appellant.

Robert M. Spire, Atty. Gen., Harold Mosher, Lincoln, for appellee.

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

KRIVOSHA, Chief Justice.

Following trial to a jury, the appellant, Robert D. Swoopes, was found guilty of having committed several crimes. Specifically, he was convicted of burglary in violation of Neb.Rev.Stat. § 28-507(1) (Reissue 1985), attempted first degree sexual assault in violation of Neb.Rev.Stat. § 28-201 (Reissue 1985), assault in the second degree in violation of Neb.Rev.Stat. § 28-309(1) (Reissue 1985), and use of a knife to commit a felony in violation of Neb.Rev.Stat. § 28-1205(1) (Reissue 1985). All of the offenses except second degree assault are Class III felonies, punishable by imprisonment for not less than 1 nor more than 20 years or a fine of not more than $25,000, or imprisonment and fine. The crime of assault in the second degree is a Class IV felony, punishable by imprisonment for not more than 5 years or a fine of not more than $10,000, or imprisonment and fine.

The district court sentenced Swoopes to imprisonment on the burglary conviction for a term of not less than 2 nor more than 5 years. The court then sentenced Swoopes on the attempted first degree sexual assault conviction to imprisonment for a term of not less than 5 nor more than 15 years, the sentence to be served consecutively to the sentence imposed on the burglary conviction. Swoopes was also at that time sentenced to imprisonment for a term of 2 years for committing assault in the second degree, the sentence to be served concurrently with the sentence imposed for the attempted first degree sexual assault but consecutively to the sentence imposed for burglary. And, finally, the court sentenced Swoopes to a period of 10 years' imprisonment on the conviction of using a knife to commit a felony, the sentence to be served consecutively to the sentences imposed on the burglary, attempted first degree sexual assault, and assault in the second degree charges.

Swoopes now appeals to this court, maintaining that a series of errors were committed entitling Swoopes to a new trial. Specifically, his claims are that (1) the district court erred in overruling his motion to suppress the testimony given by various witnesses who identified him; (2) the district court committed error in refusing to grant his motion for mistrial when one of the investigators in the case testified that Swoopes' picture had been obtained from the Omaha Police Department, in spite of the fact that a motion in limine had been granted by the court; (3) the district court committed error when it refused to instruct the jury that it could find Swoopes guilty of third degree sexual assault as a lesser-included offense of attempted first degree sexual assault; (4) the district court erred in failing to sustain his motion to quash the information and suppress all evidence gained as the result of an allegedly illegal arrest; (5) the district court committed error when it permitted a police officer to testify over objection that the officer believed the story of another individual who could have been considered a suspect; and (6) the identification of Swoopes at both a photo lineup and a live lineup violated his right of due process because of a discussion between two of the witnesses and the victim in which one of the witnesses allegedly made comments which were highly suggestive and, therefore, unfairly bolstered and tainted the subsequent identification.

We have examined each of the allegations in light of the record presented to this court and conclude that none of the assignments are meritorious. We therefore affirm the convictions and sentences.

The record discloses that on September 25, 1984, the victim was in her kitchen with her 3-year-old daughter. She looked up and saw a man, later identified as Swoopes, standing in the doorway between the kitchen and hallway. He moved behind her, put a knife to her throat, and told her they were going upstairs. He then proceeded in part to drag and in part to carry her toward the stairway. At this point a struggle ensued, and the parties moved back and forth between the kitchen and the hallway. During the struggle the man reached down the victim's blouse and fondled her breast. The victim attempted to grab the knife away from the man and, in doing so, was cut on the hand. She eventually succeeded in getting loose and ran from the home to a neighbor's. The man then fled the home.

When law enforcement officials arrived, the victim described her assailant as a tall, thin, black man. Both Swoopes and another individual were contacted by the officials as possible suspects, but neither was arrested at that time. The officials then obtained a color photo of Swoopes from the Omaha Police Department and used that photo, together with four others, to create a photo lineup. When the photo lineup was shown to the victim, she was unable to make a positive identification of anyone in the photo lineup, although she indicated she thought that Swoopes' picture came closest to resembling her assailant. In none of the photos displayed was anyone wearing a hooded sweatshirt of the type worn by the assailant.

The officials then went to Swoopes' home and requested him to accompany them to the courthouse for a live lineup. At the live lineup, the victim positively identified Swoopes as her assailant. Swoopes was then placed under arrest.

Subsequently, five other individuals who had indicated that they had seen someone in the area when the assault occurred identified Swoopes through a photo lineup as the individual they had seen. Additionally, four of the neighbors were asked to view a live lineup, and they all identified Swoopes.

With these facts in mind, we now turn to each assignment of error.

A.

The district court committed reversible error in overruling the defendant's motion to suppress the identification of defendant by witnesses Janik, Robb, and Catlett.

Swoopes' argument concerning this alleged error seems to be that because the officers had as many as 40 photographs at their disposal, the 5 which were selected were so prejudicial and improper as to entitle Swoopes to have the evidence of his identification by use of the photographs suppressed. Additionally, and in connection with this same assignment of error, Swoopes maintains that the victim's emotional state at the time of the lineup was such that she could not have properly or fairly identified her assailant. And, finally, he argues that the officers suggested that one of the photographs shown the victim was of a suspect, thereby improperly prejudicing Swoopes with suggestive statements to the victim. Swoopes then argues that if the evidence concerning the photo lineup and the live lineup is suppressed, then the in-court identification must likewise be suppressed because the in-court identification was dependent upon either the photo lineup or the live lineup. We believe an examination of the record will disclose that none of these positions are correct statements of the law.

Swoopes is unable to cite to the court, nor is the court able to discover, any authority to support the proposition that 5 photographs do not constitute a sufficient array when 40 are available. It seems to the court relatively clear that an array of five photographs is sufficient to constitute a fair and adequate array when attempting to identify a single perpetrator.

Moreover, an examination of the photo lineup, exhibit 1 in this case, discloses that all of the photos were selected for the reason that they display individuals with similar characteristics, to wit, short hair and elongated, clean-shaven faces. Specifically,...