State v. Wilson

• Decision Date: 19 November 1996
• Docket Number: No. A-95-1351,A-95-1351
• Citation: 5 Neb.App. 125,556 N.W.2d 643
• Parties: STATE of Nebraska, Appellee, v. Harold L. WILSON, Appellant.
• Court: Nebraska Court of Appeals

Page 643

556 N.W.2d 643

5 Neb.App. 125

STATE of Nebraska, Appellee, v. Harold L. WILSON, Appellant.

No. A-95-1351.

Court of Appeals of Nebraska.

Nov. 19, 1996.

Syllabus by the Court

1. Pleadings: Double Jeopardy. Neb.Rev.Stat. § 29-1817 (Reissue 1995) provides that a plea in bar may be offered alleging that the defendant has before had judgment of acquittal, been convicted, or been pardoned for the same offense; the statute does not specifically authorize a defendant to raise, pretrial, a plea in bar alleging the risk of multiple punishments.

2. Criminal Law: Identification Procedures. In regard to photographic arrays, whether identification procedures are 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.

3. Motions to Suppress: Appeal and Error. A trial court's ruling on a motion to suppress is to be upheld on appeal unless the court's findings of fact are clearly erroneous.

4. Rules of Evidence: Hearsay. It is a fundamental rule of evidence that a statement is not hearsay if it is offered against a party and is the party's own statement.

5. Rules of Evidence: Other Acts. Neb. Evid. R. 404, Neb.Rev.Stat. § 27-404 (Reissue 1995), provides for the admissibility of evidence of other crimes, wrongs, or acts for purposes other than to show that a person acted in conformity with his or her character, and such evidence may be admissible as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

6. Rules of Evidence: Other Acts: Proof. When evidence is admissible pursuant to Neb. Evid. R. 404, Neb.Rev.Stat. § 27-404 (Reissue 1995), in criminal cases evidence of other crimes, wrongs, or acts of the accused may be offered in evidence by the prosecution if the prosecution proves to the court by clear and convincing evidence that the accused committed the crime, wrong, or act, and such proof shall first be made outside the presence of any jury.

7. Rules of Evidence. The evidence rules apply generally to all civil and criminal proceedings before the district courts, except that the rules, other than the privilege rules, do not apply in the situations enumerated in Neb. Evid. R. 1101(4), Neb.Rev.Stat. § 27-1101(4) (Reissue 1995).

8. Rules of Evidence: Other Acts. The evidence rules do apply at a Neb. Evid R. 404(3), Neb.Rev.Stat. § 27-404(3) (Reissue 1995), hearing.

9. Rules of Evidence: Hearsay. Testimony given as a witness at another hearing of the same or a different proceeding, against a party with an opportunity to develop the testimony by direct, cross-, or redirect examination, if the party had a motive and interest similar to those of the party against whom the statement is now being offered, although hearsay, is admissible if the witness is deemed legally unavailable to testify in the proceeding at which the prior testimony is offered.

10. Judicial Notice. A judicially noticed fact must be one not subject to reasonable dispute, in that it is either generally known within the territorial jurisdiction of the court or capable of accurate and ready determination by resort to a source whose accuracy cannot reasonably be questioned.

11. Judicial Notice. A trial court is not allowed to take judicial notice of disputed facts.

12. Criminal Law: Trial: Juries: Evidence: Appeal and Error. In a jury trial of a criminal case, whether an error in admitting evidence reaches a constitutional dimension or not, an erroneous evidential ruling results in prejudice to a defendant unless the State demonstrates that the error was harmless beyond a reasonable doubt.

13. Trial: Photographs. The admission of photographs of a gruesome nature rests largely within the discretion of the trial court.

14. Homicide: Photographs. Photographs of the victim in a murder case are admissible to show, inter alia, the condition of the body or the nature and extent of the injuries, to establish malice or intent, or for purposes of identification.

Dennis R. Keefe, Lancaster County Public Defender, and Kristi J. Egger, Lincoln, for appellant.

Don Stenberg, Attorney General, and Kimberly A. Klein, Lincoln, for appellee.

IRWIN, SIEVERS and INBODY, JJ.

IRWIN, Judge.

I. INTRODUCTION

This appeal arises from Harold L. Wilson's convictions of attempted second degree murder, third degree assault, and use of a weapon in the commission of a felony. On appeal, Wilson contends the district court erred in overruling his plea in bar, in overruling his motion to suppress both photographic and in-court identifications, in overruling his motion in limine concerning statements he made to his girl friend, in denying him a "full and fair hearing" on the admissibility of evidence of a prior crime pursuant to Neb. Evid. R. 404(3), Neb.Rev.Stat. § 27-404(3) (Reissue 1995), in allowing enlarged photographs of the victim into evidence, in denying his motion to dismiss at the end of the State's case, in denying his motion for new trial, and in imposing excessive sentences. For the reasons set forth herein, we affirm.

II. BACKGROUND

On July 11, 1994, an information was filed charging Wilson with attempted second degree murder, first degree assault, and use of a weapon in the commission of a felony. The crimes charged resulted from an attack on Kimberly Gentrup, an employee of a Little King restaurant in Lincoln, Nebraska, on May 9, 1994. On October 4, the State filed a request for leave to amend the information to add an additional count of use of a weapon in the commission of a felony, which was granted after a hearing on October 18. At his arraignment, Wilson pled not guilty to all counts.

Prior to trial, Wilson filed a plea in bar, numerous motions in limine, and a motion to suppress photographic identifications. Specifically, Wilson filed a motion in limine seeking to prevent the State from producing testimony at trial about a prior attack on a convenience store worker, Peggy Kinney, on May 8, 1994, in Crete, Nebraska. This prior attack was the subject of a separate prosecution and conviction, and the attempted second degree murder conviction from that case was affirmed by this court in State v. Wilson, 4 Neb.App. 489, 546 N.W.2d 323 (1996) (Wilson I ). Wilson I was on appeal to this court at the time of the prosecution in the present case. Details of Wilson's attack of Kinney are contained in Wilson I.

On September 6, 1995, a hearing was held on Wilson's various motions in limine. During the hearing, the State disclosed that pursuant to § 27-404(2), it intended to produce testimony at trial concerning the assault on Kinney in Crete. Wilson's attorney then argued that Wilson was entitled to a full evidentiary hearing on the admissibility of such evidence, pursuant to § 27-404(3). The State argued that a full evidentiary hearing was unnecessary. In support of the admissibility of the § 27-404 evidence, the State offered a transcription of Kinney's testimony during the prosecution of the Crete attack and requested the district court to take judicial notice of testimony provided during the hearing on Wilson's motion to suppress the photographic identifications in the instant case. The court received the transcription of Kinney's testimony and agreed to take judicial notice of the suppression testimony, both over the objection of Wilson's attorney. Although the court offered Wilson an opportunity to present evidence, Wilson declined to do so.

In an order dated October 5, 1995, the district court overruled Wilson's motion in limine regarding testimony about the Crete assault. The court found that "evidence regarding the 'Crete Case' is admissible ... to prove motive, intent, preparation, plan and identity or absence of mistake or accident." The court further found that there was clear and convincing evidence that the defendant committed the Crete crime and that the probative value of the evidence outweighed any danger of unfair prejudice.

A jury trial was held on October 23 through October 30, 1995. At trial, the victim, Gentrup, testified that she was employed at a Little King restaurant in Lincoln on May 9, 1994. Gentrup testified that she worked at Little King on Monday nights only, from 5 p.m. to close. On May 9, Gentrup was working with another employee, Syed Iftikhar, when Wilson entered the restaurant at approximately 8:15 p.m. Wilson spoke to Iftikhar, used the restaurant's phonebook, and left. Wilson returned, used the phonebook again, and left again. Wilson then returned to the restaurant, inquired about the hours of operation, and placed an order with Iftikhar for a sandwich and a beverage. Gentrup testified that Wilson was only a few feet away from her while he placed his order and that he proceeded to sit and eat his sandwich in the restaurant.

Gentrup testified that she told Iftikhar he could go home for the evening because there were no other customers in the restaurant and it was almost time to close the restaurant for the evening. After Iftikhar left, Wilson ordered another sandwich. Gentrup testified that she began to make the sandwich, but was delayed when she heard the drive-through buzzer sound. Gentrup walked to the microphone for the drive-through and told the customer waiting at the drive-through that she would be with the customer in a minute, then returned to complete Wilson's sandwich.

As Gentrup bent down to get cheese for Wilson's sandwich out of a refrigerator that was located underneath the counter, she was attacked. Gentrup testified that Wilson grabbed her from behind and started cutting her neck with a knife. Wilson was holding the knife in his left hand, and Gentrup estimated that she felt the cutting motion on her neck approximately 10 times. After cutting her neck, Wilson attempted to stab Gentrup in the back three or four times, then attempted to stab her in her chest area. Gentrup also suffered a...