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01/21/94 STATE NEBRASKA v. JESSE L. PERRIGO

January 21, 1994

STATE OF NEBRASKA, APPELLEE AND CROSS-APPELLANT,
v.
JESSE L. PERRIGO, APPELLANT AND CROSS-APPELLEE.



Appeal from the District Court for Douglas County: Lawrence J. Corrigan, Judge.

Hastings, C.j., Boslaugh, White, Caporale, Fahrnbruch, and Lanphier, JJ., and Moran, D.j., Retired.

SYLLABUS BY THE COURT

1. Rules of Evidence: Other Acts. Neb. Evid. R. 404(2) (Neb. Rev. Stat. § 27-404(2) (Reissue 1989)) is an inclusionary rule permitting the use of relevant, specific acts for all purposes except to prove character of a person in order to show that such person acted in conformity with character.

2. Rules of Evidence: Other Acts. Neb. Evid. R. 404(2) (Neb. Rev. Stat. § 27-404(2) (Reissue 1989)) is subject to the overriding protection of Neb. Evid. R. 403 (Neb. Rev. Stat. § 27-403 (Reissue 1989)).

3. Rules of Evidence: Other Acts. The purposes set forth in Neb. Evid. R. 404(2) (Neb. Rev. Stat. § 27-404(2) (Reissue 1989)) are illustrative only and not intended to be exhaustive or mutually exclusive.

4. : Trial: Evidence: Stipulations. Refusal of a trial court to accept an offer by a defendant to stipulate to an essential element of the alleged offense ordinarily constitutes no ground for a new trial.

5. Prior Convictions: Evidence: Proof. If evidence of a prior conviction is relevant to establish elements of another crime, and if the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice, the State may prove a prior conviction in any permissible manner.

The opinion of the court was delivered by: Moran

MORAN, D.J., Retired.

Jesse L. Perrigo appeals his convictions of first degree murder, see Neb. Rev. Stat. § 28-303 (Reissue 1989), a Class I felony; use of a firearm to commit a felony, see Neb. Rev. Stat. § 28-1205 (Reissue 1989), a Class III felony; and possession of a firearm by a felon, see Neb. Rev. Stat. § 28-1206 (Reissue 1989), a Class IV felony. Perrigo was sentenced to life in prison for conviction of first degree murder, 10 years' imprisonment for conviction of use of a firearm to commit a felony, and 5 years' imprisonment for conviction of possession of a firearm by a felon, all sentences to be served consecutively. The State cross-appeals the district court's refusal to give one of the State's proposed jury instructions.

FACTUAL BACKGROUND

Around 1 a.m. on November 29, 1991, the morning after Thanksgiving, the body of Jerry Lee Linkenhoker was found in the street by a passing motorist near 144th Street and Military Avenue in Douglas County. Linkenhoker, a cabdriver for Happy Cab, had been last dispatched around 12:21 a.m. to pick up a fare at 72d and Blondo Streets in Omaha at the request of a caller who gave the name "Schaefer." An autopsy of Linkenhoker revealed that he died of multiple .32-caliber gunshot wounds.

Later the night of November 29, the Douglas County sheriff's investigation led deputies to the home of Jesse L. Perrigo. At the deputies' request, and after being apprised of the investigation, Perrigo and his father, in whose basement Perrigo lived, consented to a search of the home.

During the consensual search of the basement, a brown, leather-type briefcase was found. Inside the briefcase was a .32-caliber six-shot Colt revolver and some of Linkenhoker's personal effects. Perrigo was then arrested for being a felon in possession of a firearm and was read his Miranda rights. In response to the deputies' questions, Perrigo stated that Brian Schaefer had given him the gun and the briefcase earlier that day.

Deputy Pamela Giangrosso testified about her questioning Perrigo at the Douglas County sheriff's road patrol office. After being advised of his Miranda rights, Perrigo told her that Schaefer gave Perrigo the briefcase containing the gun and the cabdriver's effects to hide. Perrigo initially told Giangrosso that he had spent the evening of November 28 by himself at Robert J's Pub, staying there until the bar closed. However, Perrigo later changed his story, telling Giangrosso that he and Schaefer planned to go to a party at 144th and Military and that Schaefer called for a cab to pick them up at the Burger King near 72d and Blondo.

Perrigo told Giangrosso that while Schaefer and he were in the cab, Schaefer told Perrigo they should jump out of the cab and not pay the fare once the cab reached the destination given to the driver. According to Perrigo, once the cab reached the designated point, he jumped from it and ran into a field, hearing gunshots being fired from the area of the cab as he ran. Perrigo said that he ran through the nearby fields to a barn or outbuilding and fell asleep for "a couple of hours." On awakening, he walked home, not returning to the area where he had jumped from the cab. Perrigo told Giangrosso that he did not know where Schaefer went after the shooting or how Schaefer got home.

Giangrosso testified without objection that Perrigo admitted he had stolen a .32-caliber gun and some money from Danny's Bar earlier in the week, in contradiction to what Perrigo had previously told Giangrosso. However, Perrigo denied being in possession of the gun. At that point, the interrogation was interrupted briefly, and Giangrosso was informed outside the interview room that Perrigo had become the suspect in the homicide investigation. Giangrosso then confronted Perrigo with articles of clothing, believed to be bloodstained, found during the search of his home, and with pictures of Linkenhoker at the crime scene and at the morgue prior to autopsy, including a picture showing Linkenhoker's watch pulled down onto his hand. Perrigo insisted that while he had been in Linkenhoker's cab with Schaefer, he was not in the cab when the shooting occurred. The interview then ended, and Perrigo was booked on the charge of criminal homicide and transported to the county's corrections facility.

Shortly after Perrigo was taken to the corrections facility, he insisted on seeing Giangrosso. Giangrosso went to meet with Perrigo, and advised him again of his Miranda rights.

Perrigo then changed his account and admitted to Giangrosso that he had taken Linkenhoker's cab from 144th and Military after the shooting. He told Giangrosso that after the shooting, he returned to the cab and found the driver slumped over the steering wheel. He then pulled Linkenhoker out of the cab and drove the cab home. Perrigo said that the reason Linkenhoker's watch was pulled down over his hand was not because Perrigo had attempted to take the watch, but because it got pulled down as Perrigo dragged the driver's body out of the cab. Perrigo admitted that the jeans Giangrosso had shown him earlier were his, and told her that the jeans were probably stained with Linkenhoker's blood, since Perrigo sat in the driver's seat, where Linkenhoker had been shot, as Perrigo drove the cab away from the scene. Further changing his version of the facts, Perrigo admitted that he had suggested to Schaefer that they go out on Thanksgiving evening and do a robbery. However, Perrigo later changed his mind. Perrigo continued to claim he was not in the cab at the time of the shooting. However, Perrigo admitted that he, not Schaefer, had called for the cab that night. Throughout questioning, Perrigo denied shooting Linkenhoker, maintaining instead that Schaefer did the killing.

Schaefer testified that he saw Perrigo on Tuesday, November 26, 1991. That day, Perrigo showed Schaefer a bank bag with money in it and a .32-caliber gun. Schaefer identified the gun found during the search of Perrigo's home as the same gun he had seen on November 26. Over Perrigo's objection, Schaefer testified that Perrigo told him that Perrigo had stolen the gun, money, and a bank bag from Danny's Bar. Schaefer testified that Perrigo called him several times on Thanksgiving Day, November 28. Schaefer said that around 8 o'clock Thanksgiving evening, Perrigo called and asked Schaefer if he wanted to "go out and make some money." Schaefer told Perrigo that he would think about it. Schaefer testified that he called Perrigo around 9 o'clock Thanksgiving evening and told Perrigo he would not go out with him. Schaefer said he last talked to Perrigo that night sometime after 11:15 and again told Perrigo that he would not go out with him. Schaefer testified that he slept that night in the apartment living room of his grandmother's with whom he stayed. Schaefer's cousin slept on the couch, while Schaefer's great-uncle and Schaefer slept on the floor.

Schaefer testified that during the day of November 29, 1991, Perrigo called him. Perrigo told Schaefer that Perrigo had gone out the night before and "did something very bad last night, and, phew, I almost got caught." In conversations later that day, Perrigo told Schaefer nothing about what had happened the night before. Late on November 29, Schaefer called Perrigo from a bar. Perrigo told Schaefer in that conversation that "the cops were at [Perrigo's] house questioning him about a cab driver."

Over Perrigo's objection, Danny Arcuri, the owner of Danny's Bar, testified that his bar had been burglarized on November 26, 1991. During the burglary, a .32-caliber Colt revolver was stolen. Arcuri identified the gun found during the search of Perrigo's home as the gun taken during the burglary of his bar. At Perrigo's request, the trial court gave a limiting instruction concerning Arcuri's testimony, telling the jury that Arcuri's testimony about the burglary of Danny's Bar was to be used only in determining the voluntariness and truthfulness of Perrigo's statement to Giangrosso and whether Perrigo's admission was corroborated.

Mark Bohaty, a firearms and tool-mark examiner for the Nebraska State Patrol Criminalistics Laboratory, testified that marks on the test-fired bullets and on bullets found in Linkenhoker's body were consistent with the general characteristics of marks made on bullets fired by Colts of the .32-caliber weapon's design. However, Bohaty further testified that the gun found in Perrigo's home lacked the "unique peculiarities needed for absolute positive identification." In other words, the gun failed to leave its fingerprints on test-fired bullets. Therefore, Bohaty was unable to positively determine whether the bullets found in Linkenhoker's body were or were not fired from the gun found in Perrigo's possession.

Before trial, Perrigo moved in limine to prevent introducing into evidence the nature of Perrigo's prior felony conviction and the burglary of Danny's Bar. Both motions in limine were overruled. Perrigo preserved those issues on appeal by objections at trial. The State rejected Perrigo's offer to stipulate that he was a convicted felon for the purpose of the felon in possession of a firearm charge. Instead, the State offered, over Perrigo's objection, a certified copy of the judgment and sentence for Perrigo's prior conviction for attempted burglary. In instructing the jury, the court gave a limiting instruction that the prior felony conviction was to be considered to establish one of the elements of the crime of possession of a firearm by a felon, and ...


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