State v. Robinson

448 N.W.2d 386, 233 Neb. 729, 1989 Neb. LEXIS 438
CourtNebraska Supreme Court
DecidedNovember 17, 1989
Docket82-028
StatusPublished
Cited by16 cases

This text of 448 N.W.2d 386 (State v. Robinson) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Robinson, 448 N.W.2d 386, 233 Neb. 729, 1989 Neb. LEXIS 438 (Neb. 1989).

Opinions

Caporale, J.

I. INTRODUCTION

In this reinstated appeal, defendant, Darwin J. Robinson, challenges his convictions pursuant to verdicts on charges of robbery, in violation of Neb. Rev. Stat. § 28-324 (Reissue 1985), and the use of firearms to commit a felony, in violation of Neb. Rev. Stat. § 28-1205(1) (Reissue 1985), and of being a habitual criminal as defined in Neb. Rev. Stat. § 29-2221 (Reissue 1985). His seven assignments of error combine to urge that the trial court erred (1) in declining to suppress certain evidence and (2) in submitting the robbery and firearms charges to the jury and finding the evidence sufficient to support all the charges. We affirm.

II. SUPPRESSION TESTIMONY

At the hearing on Robinson’s suppression motions, Marvin Pfeifer, the assistant manager of an Omaha Kwik Shop [731]*731convenience store, testified that on January 31, 1981, he was on duty between midnight and 7 o’clock that morning. Robinson entered the store around 6:30 a.m., stood by the magazine rack for some time, and engaged Pfeifer in a “four to five” minute conversation about the weather. According to Pfeifer, “Somebody was getting gas, and I was watching .... And when I turned around, he had a knife in my back.” Pfeifer turned slightly and was able to see both the knife and that Robinson was the person holding it. Pfeifer complied with Robinson’s instruction to “[o]pen the register” and, at Robinson’s further order, took all the money from the cash register and placed it in Robinson’s hand, whereupon Robinson walked out of the store. As he was leaving the store, employee Michael Klaumann was entering. Pfeifer immediately informed Klaumann that Robinson had robbed the store, and subsequently summoned the police.

Pfeifer described the lighting in the store as “excellent” on the morning in question. Thus, he had ample opportunity to see Robinson’s face during the half hour or so Robinson was in the store prior to the robbery, and there was no question in his mind but that Robinson was the man who had robbed him. We note Pfeifer’s additional testimony that he had never been shown any photographs by the police, had never seen Robinson in any lineup, and, in fact, had not been called upon to identify the robber until the preliminary hearing in this prosecution.

As Klaumann tells it, he arrived for work at the Kwik Shop at about 6:55 that morning, and as he “was pulling into the parking lot . . . saw that there was a man standing behind Marvin behind the counter — the cash register.” Klaumann got out of his automobile, and “the man who was behind the counter” walked out of the door as Klaumann was walking in. Klaumann testified that the area was well lit and that he observed the individual well enough to recognize him again; according to Klaumann, “He had been in the store before.”

After Pfeifer told him, “[T]hat’s the man that robbed me,” Klaumann immediately left and followed Robinson. Using his own vehicle, Klaumann followed a white automobile from the Kwik Shop to a parking lot. Klaumann then located a police patrol vehicle, reported what he had seen, and identified the [732]*732automobile for police officers. Klaumann admitted that he had not seen the robber get into the white automobile, nor had he seen the driver exit that vehicle. In any event, Klaumann returned to the Kwik Shop. Sometime later the same day, a police officer approached him there and showed him a photograph, which Klaumann identified as depicting the robber. This was the only time police officers showed any photographs to Klaumann; he participated in no other photographic showup.

However, at “around 10 or 11 in the morning,” police officers brought Robinson himself to the Kwik Shop in a patrol vehicle. The officers presented Robinson to Klaumann in the store, and Klaumann told the officers that Robinson was the robber. At the suppression hearing, Klaumann again identified Robinson as the man he had seen walking out of the store as he walked in.

Police Officer James Patterson and Sgt. Don Crinklaw were on duty during the early morning hours of January 31, 1981. About 8:20 a.m., Patterson received a report of a stolen automobile. He also learned from police sources that the vehicle had allegedly been involved in a robbery and had been towed away by police. When Patterson and Crinklaw arrived at the location from which the stolen automobile report had originated, a young woman identifying herself as “Shirley Robinson” told them that her automobile had been stolen. Crinklaw asked for a photograph of Robinson, which the young woman gave him. He left for the Kwik Shop with the photograph before learning the young woman’s true identity as that of Edna Lyncook, a fact she admitted when later informed by Patterson that the automobile she had reported stolen was suspected of having been used in a robbery and had been towed by police. Lyncook also told Patterson that Robinson was at her residence, an apartment some flights above Robinson’s, and that she had left the door unlocked. Officers then went to the Lyncook apartment and arrested Robinson.

Officers also went to Robinson’s apartment and awakened the genuine Mrs. Robinson, who apparently had been sleeping in the Robinson apartment, and, according to Patterson, received permission from her to search the apartment for items [733]*733of clothing worn by the Kwik Shop robber. Mrs. Robinson, however, denied having given the police permission to search. As a result of the search, police located a blue windbreaker-type jacket, which Klaumann identified as the jacket worn by the robber.

Robinson was then transported to the police station, where he was searched. Fifty dollars in paper money was found in his back pocket in the following denominations: two $10 bills, one $5 bill, and twenty-five $1 bills.

Robinson’s first trial ended in a mistrial. A few days later, the district court took up the State’s motion to endorse Robert Koppock as a new witness for use at retrial. Robinson objected “as to the relevancy and as to constitutional issues that were raised by this procedure.” The district court then conducted a proceeding in the nature of a suppression hearing to determine the admissibility of Koppock’s testimony. At the conclusion of that hearing the district court ruled that “that part of the testimony in which [Robinson] described the place that he robbed and admits [the robbery] will be received.”

Koppock’s testimony establishes that he was himself arrested on unrelated charges, and as a result, the two men met for the first time in the Douglas County Correctional Center. At the time of his arrest and detention, Koppock was working as an informant for the Nebraska State Patrol, primarily in connection with drug-related activities, and was paid a salary of $100 per week. The State Patrol neither planted Koppock at the jail nor assigned Koppock to work on Robinson’s case.

Koppock further testified that he shared the same cellblock with Robinson and that Koppock initiated conversation with Robinson by asking him why he was in prison. On this occasion Robinson indicated the matter was none of Koppock’s business. Later, Robinson asked Koppock if he could help Robinson raise bail money.

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State v. Robinson
448 N.W.2d 386 (Nebraska Supreme Court, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
448 N.W.2d 386, 233 Neb. 729, 1989 Neb. LEXIS 438, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-robinson-neb-1989.