State v. Thompson

• Decision Date: 07 April 1989
• Docket Number: No. 88-303,88-303
• Citation: 438 N.W.2d 131,231 Neb. 771
• Parties: STATE of Nebraska, Appellee, v. Kenneth N. THOMPSON, Appellant.
• Court: Nebraska Supreme Court

Page 131

438 N.W.2d 131

231 Neb. 771

STATE of Nebraska, Appellee, v. Kenneth N. THOMPSON, Appellant.

No. 88-303.

Supreme Court of Nebraska.

April 7, 1989.

Syllabus by the Court

1. Trial: Joinder: Appeal and Error. A trial court's ruling on a motion for consolidation of prosecutions properly joinable will not be disturbed on appeal in the absence of an abuse of discretion.

2. Trial: Joinder: Indictments and Informations. If the offenses involved were of the same or similar character, they can be joined together in one information, and the trial court can order that they be tried together.

3. Trial: Joinder: Evidence: Appeal and Error. Joinder is not prejudicial error where evidence relating to both offenses would be admissible in a trial of either offense separately.

4. Investigative Stops: Police Officers and Sheriffs: Probable Cause. A reasonably founded suspicion to stop a vehicle cannot be based solely on the receipt of a radio dispatch by the officer without any proof of the factual foundation for the relayed message.

5. Investigative Stops: Police Officers and Sheriffs: Probable Cause: Identification Procedures. An officer's independent recognition of an individual with an outstanding arrest warrant following an illegal stop constitutes an intervening circumstance sufficient to break the causal connection between the stop and a subsequent identification lineup.

6. Trial: Juries: Appeal and Error: Words and Phrases. Harmless error exists 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. Constitutional Law: Equal Protection: Prosecuting Attorneys: Juror Qualifications: Discrimination. The equal protection clause of the U.S. Constitution bars a prosecutor from challenging potential jurors solely on account of their race or on the assumption that they, as a group, will not be able to impartially consider the State's case against a black defendant.

8. Trial: Juries: Discrimination: Appeal and Error. The trial court's determination as to whether a defendant has established purposeful discrimination in the selection of a jury is a finding of fact which will not be reversed on appeal unless clearly erroneous.

9. Evidence: Appeal and Error. Where evidence is objected to which is substantially identical to evidence admitted and not objected to, prejudicial error will not lie because of its admission.

10. Criminal Law: Identification Procedures. Whether identification procedures were unduly suggestive and conducive to a substantial likelihood of mistaken identification is determined by a consideration of the totality of the circumstances surrounding the procedures.

Thomas M. Kenney, Douglas County Public Defender, and Timothy P. Burns, Omaha, for appellant.

Kenneth N. Thompson, pro se.

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

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

WHITE, Justice.

This is an appeal from the district court for Douglas County following convictions of two counts of robbery and two counts of using a weapon to commit a felony, and a determination that the appellant was a habitual criminal. The appellant was sentenced to a term of imprisonment of 15 years on each count, all sentences to be served consecutively. Counsel for appellant contends the district court erred in four respects: (1) in granting the State's motion to consolidate the two robbery charges and the two weapons charges, (2) in overruling the appellant's motion to suppress the fruits of the stop and arrest of the appellant on November 12, 1987, (3) in overruling the appellant's motion for a mistrial because the prosecutor used peremptory challenges to strike one of two black prospective jurors, and (4) in permitting police officers to testify regarding what photo or person was picked out of the pretrial photo array and physical lineup.

In pro se briefs filed with this court, the appellant alleges two additional errors on his behalf. First, the appellant alleges the pretrial identification procedures were unnecessarily suggestive, and, second, he alleges prosecutorial misconduct on the basis of references made by the prosecutor to "mug shots" in violation of the court's order to refrain from so referring. After a brief recitation of the relevant facts, we will address each of the above contentions.

At 10:40 p.m. on October 12, 1987, Herr's Gas 'N' Shop in Omaha, Nebraska, was robbed by a black male. Shawn Claycomb was working alone that evening, doing stockwork in the back cooler area, when she was approached by a black male wearing a nylon stocking over his face. The assailant was armed with a sawed-off shotgun. Claycomb described her assailant as 6 feet 1 inch, 200 to 230 pounds, with short hair and medium-light skin.

On Wednesday, October 14, a Runza Hut drive-in located within four blocks from Herr's Gas 'N' Shop was robbed by two black males at approximately 7:50 p.m. At the time of the robbery, Renee Welch was working the front counter, and Daniel Flud, Sean Stevens, and Alex Adams were working the back kitchen, where a second cash register is located near the drive-up window. Welch observed two black males outside the restaurant. She watched them walk into the restaurant and went behind the counter to wait on them. When she looked up to take their order, she noticed that they were wearing nylon stocking masks over their heads. One of the assailants had a sawed-off shotgun and pointed it in her face. He ordered her to give him the money out of the front register. He then told her to lie down and went into the back kitchen area, where the second cash register was located. The shorter black male stayed up front and held a handgun on Welch. Flud, Stevens, and Adams were all ordered to get on the floor when the assailant armed with the sawed-off shotgun entered the kitchen area.

Two days after the robbery of Herr's Gas 'N' Shop, Ray Hunt, an Omaha police detective, came to Claycomb's apartment to show her a photo array of eight people. Claycomb chose a photograph of the appellant out of the array. Following the Runza Hut robbery on October 14, Omaha police detectives showed Welch, Stevens, and Adams the same photo array that had been shown to Claycomb after the robbery at Herr's Gas 'N' Shop. When shown the array, Welch chose the appellant, but stated that she could not be positive regarding her identification of the assailant. Stevens also chose the photo of the appellant, stating that the picture "resembled [the robber] a lot more." He also could not be positive about his identification. After looking at the same array, Adams stated that he was positive that the photo of the appellant he chose from the array was that of the assailant.

On November 12, Omaha Police Officer Edward Hale was on routine patrol in his police cruiser. In the nighttime hours Hale pulled over a brown Chevrolet Nova. Officer Hale testified during pretrial proceedings that he pulled over this vehicle in response to a call from the police dispatcher to go to the area of 48th and Sahler because a brown Chevrolet Nova was at that location acting in a suspicious manner. However, a review of the tape made by the chief of the Omaha Public Safety Communications Division of the dispatch for that evening discloses no reference to a brown Chevrolet Nova. Nonetheless, Officer Hale did stop a brown Chevrolet Nova on that date. Two people were in the car. The officer asked both the driver and the passenger for identification. The passenger did not have any identification and told the officer that his name was James Johnson and his date of birth was August 30, 1950. After not being able to verify the name with the date of birth, Hale recognized the passenger as a possible robbery suspect with an active warrant on file. Officer Hale told the appellant that he was going to take him to headquarters to run an identification check on him. At that time the appellant told the officer his real name, Kenneth Thompson.

To further support the prior photo identifications, the police conducted a physical lineup on November 13, consisting of the appellant and three other individuals with physical characteristics similar to the appellant's. At this lineup both Claycomb and Welch chose the appellant.

Prior to trial, the appellant filed a motion to suppress all evidence seized as a result of the November 12 stop and subsequent arrest of the appellant by Officer Hale. In his motion, the appellant alleged that the initial stop and detention were not based upon probable cause or a reasonable or articulable suspicion. This motion was overruled. Also prior to trial, the State made an oral motion for an order consolidating the two robbery informations, pursuant to Neb.Rev.Stat. § 29-2002 (Reissue 1985). The court granted the State's request over objection by the appellant. At trial, the State was allowed to present testimony of the officers present at the photo array and the lineup regarding the pretrial identification of the appellant. This testimony was accepted over hearsay objections by the appellant. The appellant first assigns as error the consolidation of the two robbery and two weapons counts into one trial. Section 29-2002 provides:

(1) Two or more offenses may be charged in the same indictment, information, or complaint in a separate count for each offense if the offenses charged, whether felonies or misdemeanors, or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.

....

(3) The court may order two or more indictments, informations, or complaints, or any combination thereof, to be tried together if the offense, and the defendants, if there are more than one, could have been joined in a single...