State v. Epp

Summary

The Supreme Court of Nebraska affirmed William A. Epp's convictions for robbery and possession of a deadly weapon by a felon, as well as his habitual criminal sentences. The court held that testimony concerning an alleged confession by another inmate was inadmissible hearsay, that evidence of a related burglary was properly admitted to establish identity, and that any error in excluding the inmate's testimony was harmless. The court also rejected Epp's challenges concerning the prosecutor's closing argument, enhancement evidence, sufficiency of the evidence, and excessive sentences.

Holdings

1. The testimony was hearsay offered to prove that Mick committed the robbery and did not qualify for the residual hearsay exception because the circumstances did not demonstrate sufficient trustworthiness or probative value.
2. Any error in excluding Mick's testimony was harmless beyond a reasonable doubt because the testimony would have denied, rather than supported, Epp's theory that Mick committed the robbery.
3. The court did not decide the transportation or constitutional challenges because the challenged testimony was properly excluded or, as to Mick, any error was harmless.
4. The Plymouth burglary evidence was admissible under Neb. Evid. R. 404(2) and Rule 403 to prove identity because the visual evidence showed sufficiently distinctive similarities between the two crimes, and its probative value was not substantially outweighed by unfair prejudice.
5. The district court did not abuse its discretion in denying a mistrial because the prosecutor's comments about Epp's conversation with his landlord were not a fair reference to Epp's exercise of his right not to testify, and the court's clarification mitigated any risk of prejudice.
6. The evidence was sufficient to support Epp's conviction because witnesses testified that the robber possessed a handgun and other witnesses placed Epp in possession of a handgun around the charged date; the jury was entitled to resolve conflicts concerning whether the gun was real.
7. Certified court records, a certified transcription of plea and sentencing proceedings, and a certified correctional pen packet were properly authenticated and sufficient to establish Epp's habitual-criminal status.
8. The consecutive sentences of 60 to 60 years for robbery and possession of a deadly weapon by a felon were not excessive or an abuse of discretion because they were within statutory limits and were supported by the nature of the offenses, Epp's criminal history, and other sentencing factors.

Questions Presented

1. Whether the district court violated Epp's compulsory-process or equal-protection rights by requiring incarcerated witnesses located outside the trial county to testify by deposition rather than transporting them to trial.
2. Whether testimony recounting an alleged statement by another inmate that he committed a Casey's robbery was admissible hearsay under the residual hearsay exception or another exception.
3. Whether any error in excluding the inmate Mick's testimony was harmless.
4. Whether evidence of the Plymouth burglary was admissible under Neb. Evid. R. 404(2) and Rule 403 to prove the identity of the Wymore Casey's robber.
5. Whether the prosecutor's closing argument warranted a mistrial by commenting improperly on Epp's failure to testify.
6. Whether sufficient evidence supported Epp's conviction for possession of a deadly weapon by a felon despite his acquittal on use of a deadly weapon to commit a felony.
7. Whether certified records and a correctional pen packet were admissible and sufficient to establish habitual-criminal status.
8. Whether Epp's consecutive 60-to-60-year sentences were excessive.

Disposition

affirmed