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State v. Glazebrook

Court of Appleals of Nebraska

January 6, 2015

STATE of NEBRASKA, APPELLEE,
v.
JEFFREY D. GLAZEBROOK, APPELLANT

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Appeal from the District Court for Sarpy County: WILLIAM B. ZASTERA, Judge.

Gregory A. Pivovar for appellant.

Jon Bruning, Attorney General, and James D. Smith for appellee.

MOORE, Chief Judge, and PIRTLE and RIEDMANN, Judges.

OPINION

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[22 Neb.App. 623] Pirtle, Judge.

INTRODUCTION

A jury found Jeffrey D. Glazebrook guilty of tampering with a witness and of terroristic threats. He was sentenced for the offenses, both felonies, and his sentences were enhanced by a finding that he was a habitual criminal. For the reasons that follow, we affirm.

BACKGROUND

On November 16, 2011, Glazebrook was charged by information with two crimes: tampering with a witness, a Class IV felony, and terroristic threats, a Class IV felony. The information also alleged Glazebrook was a habitual criminal, as defined by Neb. Rev. Stat. § 29-2221 (Reissue 2008).

[22 Neb.App. 624] After a jury trial on August 30 and 31, 2012, Glazebrook was convicted of both tampering with a witness and terroristic threats. The district court held an enhancement hearing and found Glazebrook had been convicted of at least two prior felony convictions that satisfied the criteria for habitual criminal sentencing.

The charges in this case were derived from Glazebrook's alleged behavior during a prior criminal trial, with Glazebrook as the defendant. During the testimony of Charles Goodwin, an inmate witness, Glazebrook

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allegedly threatened Goodwin's life. At the trial on this matter, several witnesses, including four of the jurors and the county sheriff in attendance at the prior trial, testified. They stated that they saw Glazebrook mouth a threat toward Goodwin immediately after Goodwin had testified that Glazebrook had uttered an inflammatory statement; Goodwin had testified that Glazebrook had previously told him, " [T]here ain't no pussy like old pussy." This statement was the subject of a motion in limine filed by Glazebrook prior to the start of the trial. Glazebrook's motion was denied, and the statement attributed to Glazebrook was allowed to become a part of the record in this case.

David Herroon, one of the jurors in the prior trial, testified in this case that Glazebrook mouthed the words, " I will kill you," to Goodwin. Herroon testified to his ability to read lips because of his hearing loss, and he stated that he was certain that Glazebrook had mouthed those words to Goodwin. Herroon testified that he was shocked and stunned because he " had never thought something like that would happen and that [he] would witness it."

Saunders County Sheriff Kevin Stukenholtz testified that he was present at the prior trial and that the inmate witness testifying at the time of the alleged threat was Goodwin. Stukenholtz testified that he was approximately 22 feet from Glazebrook during Goodwin's testimony, during which he saw Glazebrook lean forward and " mouth something." He stated he was not in a position to see what was mouthed, but he noticed that Goodwin was visibly shaken and that his voice was cracking after he concluded his testimony and left the witness stand.

[22 Neb.App. 625] Danny Sabatka, another juror, testified that he observed Glazebrook mouthing the words " I'll kill you" to an inmate witness who was testifying. Sabatka testified Glazebrook's demeanor had changed and become " much more profound and directed towards that individual." Sabatka said this was the only time he noticed a change in Glazebrook's demeanor during the trial.

Two other jurors, John Brabec and Daniel O'Connor, testified that they witnessed a change in Glazebrook's demeanor during the testimony of an inmate witness. Brabec testified that Glazebrook's mouthed words, " I will kill you," toward the inmate witness were " obvious." Brabec stated that he was 100 percent certain of the statement Glazebrook had mouthed.

Prior to the trial, the jurors who testified were shown a video reenactment of Glazebrook making various statements, without sound. Herroon and Sabatka were not able to identify the words spoken in the video. Brabec testified that the statements he observed in the video did not resemble the statement mouthed in court. He said the way Glazebrook mouthed the statement in court was different from the way a person would move his or her mouth in normal conversation. Brabec described the mouthed statement in court as more enunciated, or exaggerated, than the statements on the video.

Herroon also testified that the statements on the video were different from what he witnessed as a juror. Herroon stated Glazebrook's mouthed statement in court was " very articulated . . . almost over the top enunciation, trying to get a point across." Herroon testified that Glazebrook was very agitated and was sitting " up in his seat with elbows puffed out, almost like attempting to try and look bigger, more threatening." In contrast, Glazebrook's demeanor in the video was very calm and the movements of his mouth were " almost conversational."

One of Glazebrook's attorneys from the previous case testified that the judge was

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concerned about eye contact between Goodwin and Glazebrook. He stated that the judge asked him to address that issue with Glazebrook, and he said that he did. He testified that the statement, " [T]here ain't no pussy like old pussy" was not a surprise at trial, because it [22 Neb.App. 626] was ...


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