State v. Tolliver
| Decision Date | 10 December 2004 |
| Docket Number | No. S-03-1300.,S-03-1300. |
| Citation | 268 Neb. 920,689 N.W.2d 567 |
| Court | Nebraska Supreme Court |
| Parties | STATE of Nebraska, appellee, v. Timothy F. TOLLIVER, appellant. |
Thomas C. Riley, Douglas County Public Defender, for appellant.
Jon Bruning, Attorney General, and Kevin J. Slimp for appellee.
Timothy F. Tolliver appeals from his conviction for manslaughter. He was sentenced to 16 to 20 years' imprisonment.
A trial court's ruling in receiving or excluding an expert's testimony which is otherwise relevant will be reversed only when there has been an abuse of discretion. Carlson v. Okerstrom, 267 Neb. 397, 675 N.W.2d 89 (2004).
A trial court's determination of the admissibility of physical evidence will not ordinarily be overturned except for an abuse of discretion. State v. Mather, 264 Neb. 182, 646 N.W.2d 605 (2002).
In the early morning hours of June 9, 2002, the body of Richard Edward Rice, Jr., was discovered in an Omaha park. An autopsy revealed that Rice had died as a result of manual strangulation.
At the time of his death, Rice was employed as a driver for an unlicensed taxi service. Rice drove a white Oldsmobile, and his logbook revealed that he went out on two calls on the evening of June 8, 2002, before midnight.
At approximately 11:50 p.m. that evening, police were called to the home of Monica Davis to investigate damage to the front quarter panel of her black Ford Bronco. Police observed white paint transfer on the Bronco, and a piece of tail light from an Oldsmobile was found near the Bronco. Davis had heard a noise outside her home around 11 p.m. and had observed a white vehicle in a driveway across the street.
Davis' mother, Angie Cutler, had been involved romantically with Tolliver. On the evening of June 8, 2002, Tolliver telephoned Angie Cutler and asked for money and a ride to the bus station. She refused, Tolliver became angry, and they argued. At approximately 10:30 p.m., Angie Cutler heard a loud crash outside her home. The next morning, she observed that her garage door had been damaged.
Around 2 a.m. on June 9, 2002, Letitia Cutler, a niece of Angie Cutler, was standing across the street from Letitia Cutler's residence. She was talking to her cousin and another acquaintance. Letitia Cutler saw a white four-door car arrive in front of her cousin's house. A bald black male exited the vehicle and walked up the driveway where they were standing. The man was there for about 15 minutes, and Letitia Cutler heard him speak to her cousin. When police arrived at the scene, the man had run away.
At approximately 3 a.m., an Omaha Police Department (OPD) officer responded to a call about a disturbance near the area of Letitia Cutler's residence. Upon her arrival, the officer discovered an unoccupied white Oldsmobile with its engine running. The rear of the vehicle was damaged, and one of its tail lights was missing. The car was later found to belong to Rice. Sometime after June 9, 2002, police officers went to Letitia Cutler's house and wanted to talk to her brother. She told them that her brother did not know anything about the incident involving the white Oldsmobile but that she did. For some reason, the officers did not question her. After the discovery of Rice's body, several articles appeared in the Omaha World-Herald newspaper. Letitia Cutler had seen one of the articles that mentioned Tolliver and her aunt.
Det. Ken Kanger subsequently interviewed Letitia Cutler. The detective stated that the police had the man responsible in jail and that they were trying to "shore up" some information. He told her that an elderly man had been killed and that the police would like to do what they could to make sure that person did not do it again.
Letitia Cutler told Kanger that she saw a white car pull up in the early morning hours of June 9, 2002, and that a black man got out of the car. She described him as bald and wearing a T-shirt. Letitia Cutler was then asked to look at a photographic array, and Kanger read her written admonishments located on the photographic array form.
Letitia Cutler viewed the photographic array, which consisted of six photographs of black males with some facial hair and either little or no hair on their heads. She selected the photograph of Tolliver and said that he looked like the man who had exited the white car and stood next to her for approximately 15 minutes in the early morning hours of June 9, 2002. She told Kanger that the man she identified had previously dated her aunt, Angie Cutler, and that she had seen him once before June 9 at a casino. She stated that she had not immediately recognized Tolliver that night because he did not look the same.
Later, the police searched the site of a company where Tolliver had recently been employed as a truckdriver. The search produced a pair of tennis shoes belonging to Tolliver. The shoes were taken into police custody and later sent to the University of Nebraska Medical Center's human DNA identification laboratory (DNA lab) for testing. Tolliver was subsequently arrested and charged with first degree murder.
Prior to trial, Tolliver filed a motion in limine requesting that the district court preclude the use of any testimony concerning the DNA testing and its results. Following a hearing, the court concluded that the State's witnesses were qualified as experts and could testify regarding the DNA issues. It found that based upon the evidence received at the hearing, the theory and methodology of the DNA testing and the technique had been generally accepted by the scientific community. The court concluded that the methodology utilized for the DNA testing was reliable. It overruled Tolliver's motion in limine and allowed the State to introduce testimony concerning the DNA testing and the results of those tests.
Tolliver also moved to suppress Letitia Cutler's identification. He claimed the photographic array was unduly suggestive and was not reliable based upon the totality of the circumstances. The district court concluded that the procedure utilized for the photographic identification by Letitia Cutler was not unduly suggestive or conducive to a substantial likelihood of irreparable mistaken identification. It overruled Tolliver's motion to suppress the witness' identification.
The jury convicted Tolliver of manslaughter, and he was sentenced to 16 to 20 years in prison. He timely appealed.
Tolliver assigns that the district court erred in (1) allowing the State to present evidence derived from certain DNA tests, because the State failed to satisfy the reliability standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); (2) allowing the State to present evidence concerning the DNA taken from a pair of tennis shoes, because there was a break in the chain of custody necessary to preserve the integrity of the evidence; and (3) failing to sustain his motion to suppress the testimony of Letitia Cutler, because the identification procedures used by OPD to obtain her testimony were unduly suggestive and a violation of due process.
Tolliver claims that the district court erred in allowing the State to present expert testimony that did not comport with the Daubert standard for admissibility. He argues that the State failed to sustain its burden of proof with regard to the reliability of the methodology of the DNA testing that was used on samples taken from Tolliver's tennis shoes. In particular, he challenges the reliability of the DNA lab's characterization of a mixed sample of DNA and its designation of the major and minor contributors to the sample being tested.
A trial court's ruling in receiving or excluding an expert's testimony which is otherwise relevant will be reversed only when there has been an abuse of discretion. Carlson v. Okerstrom, 267 Neb. 397, 675 N.W.2d 89 (2004). A judicial abuse of discretion exists when a judge, within the effective limits of authorized judicial power, elects to act or refrain from acting, but the selected option results in a decision which is untenable and unfairly deprives a litigant of a substantial right or a just result in matters submitted for disposition through a judicial system. Id.
Neb. Evid. R. 702, Neb.Rev.Stat. § 27-702 (Reissue 1995), governs the admissibility of expert testimony. Under rule 702, "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." Whether a witness is qualified as an expert is a preliminary question for the trial court. Carlson v. Okerstrom, supra. A trial court is allowed discretion in determining whether a witness is qualified to testify as an expert, and unless the court's finding is clearly erroneous, such a determination will not be disturbed on appeal. Id.
The validity of the DNA testing was described by the State's expert witnesses. In its evaluation of the admissibility of the evidence regarding the DNA testing, the district court first determined that the State's witnesses were qualified as experts by their knowledge, skill, experience, training, and education. The DNA lab was supervised by James Wisecarver and Ron Rubocki. Wisecarver has a Ph.D. in physiology and is a licensed doctor of medicine. Rubocki has a Ph.D. in microbiology. The testing was done by Kelly Duffy and Mellissa Helligso, who are both certified medical technologists. The court did not err in permitting the State's witnesses to testify as experts.
By deposition, Wisecarver explained the theory and methodology underlying the DNA testing. Wisecarver and Rubocki testified regarding written protocols...
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