Appeal from the District Court for Lancaster County: ROBERT R. OTTE, Judge.
The opinion of the court was delivered by: Moore, Judge.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
INBODY, Chief Judge, and IRWIN and MOORE, Judges.
Jamar Haynes was convicted in the district court for Lancaster County of two counts of terroristic threats, two counts of use of a weapon to commit a felony, one count of felon in possession of a deadly weapon, and one count of burglary. On appeal, Haynes asserts that the court erred in denying his motion to suppress, that the evidence at trial was insufficient to find him guilty of the two use of a weapon charges and the felon in possession charge, and that the court abused its discretion by including and considering a letter submitted by a police officer in the presentence report (PSR). For the reasons set forth herein, we affirm.
This case arises out of two separate incidents that took place in Lincoln, Nebraska. An amended information filed on November 3, 2009, charged Haynes with six separate criminal counts for his activities on July 10, 2008. Counts I and IV alleged that Haynes made terroristic threats against LePreece Wilkinson and Andrea Dawn Renken, respectively, in violation of Neb. Rev. Stat. § 28-311.01 (Reissue 2008), each a Class IV felony. Counts II and V alleged use of a firearm to commit a felony in connection with each of the terroristic threat charges, in violation of Neb. Rev. Stat. § 28-1205 (Reissue 2008), each a Class II felony. Count III alleged that Haynes was a felon in possession of a firearm, in violation of Neb. Rev. Stat. § 28-1206 (Reissue 2008), a Class III felony. Count VI alleged that Haynes committed burglary in violation of Neb. Rev. Stat. § 28-507 (Reissue 2008), a Class III felony.
Mark Meyerson, an officer with the Lincoln Police Department, applied for a search warrant on July 10, 2008. In it, Meyerson sought permission from the court to search the premises located at a particular address in Lincoln (identified in the search warrant affidavit as Haynes' last-known address) and "any and all motor vehicles as well as the Jayco pop-up camper observed in plain view in the backyard" of the address, for shoes of any type which may contain visible glass fragments, a .45-caliber semiautomatic pistol, .45-caliber ammunition, and any evidence of occupancy or residency.
In support of the search warrant application, Meyerson stated that he was investigating a case involving shots fired at an address on Garfield Street. According to Meyerson's affidavit, on the morning of July 10, 2008, Lincoln police officers were dispatched due to shots being fired at the Garfield Street address. Officer Brock Wagner arrived on the scene and made contact with a witness, Ann Christensen, who advised Wagner that her boyfriend, Wilkinson, had just been shot at by a black male individual. Christensen further reported that Wilkinson went outside to investigate after his car alarm went off at 5 a.m. Wilkinson discovered two black males inside of his car. Wilkinson approached, and at that point, the individual in the driver's seat exited the car, said "Hey Blood," produced a handgun, and fired three shots at Wilkinson. Wilkinson retreated to his apartment, and the two suspects fled the scene on foot. Christensen stated that she witnessed the entire episode from her bedroom window.
Meyerson then recites details in his affidavit concerning a second incident. According to Meyerson, about 40 minutes after the first incident occurred, officers were dispatched to a home invasion robbery with shots fired at a particular address on O Street. Wagner learned that Haynes had been "developed" as the party responsible for that robbery. Wagner then pulled up a recent mug shot of Haynes on the mobile data terminal inside of his police car. Although Wagner did not intend to show the mug shot at that time, Wilkinson also observed the mug shot and voluntarily exclaimed, "[T]hat's the guy that shot at me." Christensen was then shown the mug shot of Haynes and also positively identified Haynes as the party who had shot at Wilkinson.
Meyerson stated in his affidavit that Wagner continued the on-scene investigation and learned from Wilkinson that the weapon used was a chrome or silver semiautomatic handgun. Spent shell casings located at the scene of the shooting were consistent with .45-caliber ammunition. Wagner observed the vehicle which was broken into. Entry was made by smashing out a window on one of the car doors, resulting in a large quantity of broken glass which the suspects would have stepped on while at the scene.
Meyerson stated that he learned of these crimes and responded to the last-known address of Haynes, where he located and observed four specifically identified vehicles, one identified as being registered to Haynes and another with an in-transit tag in the name of Michelle Haynes, as well as a "Jayco pop-up camper."
Meyerson stated that during the investigation of a prior shooting where Haynes was a suspect, Investigator Greg Sims interviewed Haynes' girlfriend, Jean Prange. During that interview, Prange advised Sims that Haynes would store guns in the trunks of his vehicles. Meyerson did not state in his affidavit when Sims' interview of Prange occurred.
Meyerson stated that he then began surveillance at Haynes' last-known address to see if any of the specifically identified vehicles would leave the residence. Shortly afterward, Meyerson observed the vehicle identified as being registered to Haynes leave the address. The driver was Michelle, whom Meyerson stated was "another girlfriend of . . . Haynes." Michelle advised Meyerson that Haynes was inside the residence, and Haynes was taken into custody at that location at about 9 a.m. Also taken into custody in Haynes' presence was the other individual believed to be present during the shooting, Tye Carter. At the time of the arrest, neither the weapon used nor the shoes which Haynes and Carter had been wearing had been located. Meyerson stated his belief that the shoes might be critical evidence as they might contain glass fragments from the window which was broken out of Wilkinson's vehicle.
A search warrant was obtained on July 10, 2008, and executed on July 11. Items seized as a result of the search included a .45-caliber automatic cartridge, broken pieces of window glass, and two particular pairs of shoes.
Haynes filed a motion to suppress on March 27, 2009, seeking to suppress all evidence seized from the residence and vehicles, because the evidence was obtained in violation of his constitutional rights. Haynes alleged that the search was illegal because the search warrant affidavit contained stale information, the witnesses listed in the affidavit were not reliable, and the eyewitness identification of Haynes as the suspect was rendered unreliable by the suggestive procedure used.
The district court heard Haynes' motion to suppress on May 7, 2009. The court received a copy of the search warrant application and search warrant into evidence as well as a copy of a police report containing the details of a proffer interview of Prange ...