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State v. Oliveira-Coutinho

Supreme Court of Nebraska

July 10, 2015

STATE OF NEBRASKA, APPELLEE,
v.
JOSE C. OLIVEIRA-COUTINHO, APPELLANT

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Appeal from the District Court for Douglas County: THOMAS A. OTEPKA, Judge.

Todd W. Lancaster, of Nebraska Commission on Public Advocacy, and Horacio J. Wheelock, of Horacio Wheelock Law Offices, P.C., L.L.O., for appellant.

Douglas J. Peterson, Attorney General, and Stacy M. Foust for appellee.

HEAVICAN, C.J., CONNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ., and PIRTLE, Judge. WRIGHT, J., not participating.

OPINION

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[291 Neb. 298] Heavican, C.J.

I. INTRODUCTION

Jose C. Oliveira-Coutinho was charged with and convicted of three counts of first degree murder in the deaths of Vanderlei, Jaqueline, and Christopher Szczepanik, and also with one count of theft by deception over $1,500. The State sought the death penalty, and the jury found aggravating circumstances in connection with each of the three counts of murder. A three-judge panel was appointed for a sentencing

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determination hearing. Following that hearing, Oliveira-Coutinho was sentenced to three life sentences on the murder counts and 20 years' imprisonment on the theft by deception count, sentences to be served consecutively. He appeals. We affirm.

[291 Neb. 299] II. FACTUAL BACKGROUND

1. Szczepanik/Oliveira-Coutinho Relationship

Vanderlei and Jaqueline moved from Brazil to Florida. While in Florida, their son Christopher was born. The family then moved to Omaha, Nebraska, as missionaries for their church to renovate an old school building located on South 16th Street.

At some point, the church became financially unstable and Vanderlei became involved in his own renovation and construction projects. He purchased and was renovating a property located on Park Avenue in Omaha, and his business, IGIT Services Corporation (IGIT), was also hired for a lead stabilization project in Omaha.

Oliveira-Coutinho moved from Brazil to Florida in 2005, where he met and worked for Vanderlei. He moved to Omaha with the family and resided with them at the South 16th Street property. Oliveira-Coutinho led one of Vanderlei's work crews. In early 2009, Oliveira-Coutinho contacted childhood friends Valdeir Goncalves-Santos and Elias Lourenco-Batista, who lived in Brazil, about working in the United States. Both agreed, moved to Omaha to work for Vanderlei in April 2009, and lived at the Park Avenue address.

2. Family Disappears

On January 6, 2010, the Szczepaniks' pastor from Florida received a telephone call from a friend of the Szczepaniks who was unable to contact the family. Jaqueline's adult daughter also had tried and failed to contact her mother. A member of Vanderlei's work crew reported that he had last seen Vanderlei near the end of the workday on December 17, 2009, at the Park Avenue address. The pastor then contacted Oliveira-Coutinho. Oliveira-Coutinho indicated that he was not concerned because Vanderlei had previously gone somewhere without telling him.

After arriving in Omaha on January 8, 2010, the pastor from Florida and another church official reported the Szczepaniks' [291 Neb. 300] disappearance to the Omaha Police Department. A wellness check was then initiated at the South 16th Street address. Oliveira-Coutinho let law enforcement and church officials into the building. Located in the parking lot was a white Dodge van with in-transit papers dated December 16, 2009, another white truck apparently belonging to IGIT, and a dark-colored Volvo registered to Vanderlei. A Nissan pickup registered to Vanderlei was not in the parking lot.

Once inside the home, law enforcement noted that the living quarters looked like someone had been living there, but had just gone out, and that there were no signs of a disturbance. The next day, Oliveira-Coutinho gave the church officials another tour of the South 16th Street property, as well as a tour of the Park Avenue property. Oliveira-Coutinho indicated that he had moved to the Park Avenue property because the heat did not work at the South 16th Street address.

A missing persons investigation was opened on January 11, 2010. No response was received from Vanderlei's and Jaqueline's cell phones. E-mails to IGIT were not returned. The last day that Christopher had been at school was December 17, 2009. The last telephone call from either cell phone was from Jaqueline to Vanderlei

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at 8:46 p.m. on December 17. Vanderlei's Nissan truck was found on January 30, 2010, about 21?2 miles from the Park Avenue location and about one-half mile from the South 16th Street location. The truck had a tow notice from 2 days earlier. A neighbor testified that the truck had been parked one afternoon in December by a Hispanic male, who said " 'hi'" in English and kept walking.

3. Case Transferred to Homicide

On February 1, 2010, the Omaha Police Department's homicide unit was briefed on the case. The move to the homicide unit was due to a bank surveillance video which showed that someone other than the Szczepaniks had been using the family's bank cards in Omaha on December 17, 2009. Search warrant applications were prepared on February 1, 2010, and [291 Neb. 301] warrants were executed at the South 16th Street and Park Avenue addresses that same day.

While executing the warrants at the Park Avenue address, officers found items matching those purchased with the family's bank cards after the family had gone missing, notably two space heaters. Clothing and hats similar to those worn by the persons seen in the bank surveillance video were also seized, including a black hat with stylized white lettering that spelled " Fox" and a tan hooded coat. In the same room where the black hat was found, law enforcement recovered driving documents, blank checks, and deposit slips, all in Oliveira-Coutinho's name, as well as checks written on IGIT's account and mail postmarked December 23, 2009, and addressed to Jaqueline, Vanderlei, and IGIT.

In the master bedroom at the South 16th Street address, law enforcement found, among other items, a " Thomas the Train" bedspread, Jaqueline's eyeglasses, checks made out to IGIT totaling $95,919, checks made out to Vanderlei totaling $2,800, cash totaling $36,400, and $10,000 in Menards gift checks. In addition to those items, law enforcement noted that items at the South 16th Street address had been moved since the initial wellness check.

4. Questioning of Oliveira-Coutinho, Goncalves-Santos, and Lourenco-Batista

Prior to exercising the search warrants on February 1, 2010, officers made contact with Oliveira-Coutinho, who was standing in the threshold of the South 16th Street property when officers arrived. Oliveira-Coutinho was wearing a tan coat, a long-sleeved camouflage shirt, and a black hat with white lettering that spelled " DC." Officers tried to communicate with Oliveira-Coutinho, but had difficulty because of a language barrier. Eventually, Oliveira-Coutinho was asked to sit in the back seat of the police cruiser. While there, he made a telephone call to a person who was able to talk with one of the officers over Oliveira-Coutinho's cell phone and interpret and [291 Neb. 302] explain the situation to him. Upon arriving at the scene, officers recognized the hat worn by Oliveira-Coutinho as similar to one worn in the bank surveillance video.

Oliveira-Coutinho, Goncalves-Santos, and Lourenco-Batista were all questioned on February 1 and into February 2, 2010, and again later in February and March. When Goncalves-Santos was taken into custody, he was wearing a white jacket with black stripes on the sleeves.

5. Bank Records, Automatic Teller Machine Footage, and Shopping Sprees

Bank records showed that Oliveira-Coutinho's bank balance on December 10, 2009, was $476.96. In approximately the 1 month preceding, there had been just two deposits--for $600 and $363. But between

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December 21, 2009, and January 5, 2010, three deposits totaling $7,000 were made into Oliveira-Coutinho's bank account, all from IGIT's account. Nearly all of that money had been transferred out of the account by the end of the subsequent statement cycle, much of it through withdrawals made by a service described on his statement as " Xoom." Similar deposits were made into the accounts of Goncalves-Santos and Lourenco-Batista, again with the payments coming from IGIT. In addition, 14 automatic teller machine withdrawals were made from the IGIT and Szczepanik accounts between December 17, 2009, and January 20, 2010. No other unauthorized withdrawals occurred after February 1.

Automatic teller machine footage shows individuals in a dark-colored car and a white van, similar to the van driven by Oliveira-Coutinho, making withdrawals from the Szczepaniks' bank accounts. The first withdrawal was on December 17, 2009, at 11:59 p.m. Though faces are not discernible because the vehicle's occupants were wearing hats or hoods, one occupant appears to be wearing a long-sleeved camouflage shirt or hoodie, and in another, a tan hooded coat. Yet still another shows an occupant wearing a black hat with white stylized [291 Neb. 303] lettering that spelled " Fox." According to one witness, Oliveira-Coutinho wore such a hat.

The Szczepaniks' debit cards were used to make various purchases, including purchases at a store referred to as either " Hat World" or " LIDS." At that store, a white hat with black lettering that spelled " Oklahoma" and a black hat with white lettering that spelled " DC" were purchased. On December 31, 2009, three individuals purchased items at a Wal-Mart store in Council Bluffs, Iowa. Those individuals arrived in a dark-colored sedan; one individual was wearing a tan coat with dark lining and a black hat with white letters similar to the " DC" hat, while another individual was wearing a white coat with black stripes on the sleeves.

6. Initial Charges

Following law enforcement's questioning of Oliveira-Coutinho and others, all were placed on immigration holds by the federal government. Lourenco-Batista was ordered deported on April 22, 2010. On July 29, Oliveira-Coutinho, Goncalves-Santos, and Lourenco-Batista were charged with unauthorized use of a financial transaction device. The charges against Goncalves-Santos and Lourenco-Batista were dropped on January 11, 2011. On January 28, Goncalves-Santos was charged with three counts of first degree murder. A few months later, Lourenco-Batista was deported.

Goncalves-Santos' trial began on August 15, 2011. After 7 days of evidence, Goncalves-Santos interrupted his trial to cooperate with the State and law enforcement. As part of this cooperation, Goncalves-Santos informed law enforcement that he and Lourenco-Batista killed the Szczepanik family at Oliveira-Coutinho's direction.

On August 25, 2011, pursuant to a plea agreement, Goncalves-Santos pled guilty to one count of second degree murder for killing Vanderlei. Also pursuant to the agreement, in exchange for his plea and truthful testimony in any current or future cases related to the murders, the State agreed to recommend a sentence of 20 years' to 20 years' imprisonment. [291 Neb. 304] With credit for good time and time served, Goncalves-Santos could reduce his sentence to 7 years 5 months' imprisonment, after which he would likely be deported to Brazil. As of Oliveira-Coutinho's trial, Goncalves-Santos had not been sentenced.

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7. Testimony of Goncalves-Santos

At Oliveira-Coutinho's trial, Goncalves-Santos testified that on December 17, 2009, he and Lourenco-Batista were working at the Park Avenue property when Oliveira-Coutinho arrived. Goncalves-Santos testified that Oliveira-Coutinho was unhappy working for Vanderlei and wanted to " get" him. Oliveira-Coutinho tried to persuade Goncalves-Santos and Lourenco-Batista to help him kill Vanderlei.

Oliveira-Coutinho gave Lourenco-Batista a baseball bat and gave Goncalves-Santos an iron bar and told them to go to the basement where Vanderlei was working and kill him. Lourenco-Batista went into the basement, but did not kill Vanderlei.

Oliveira-Coutinho then drove Goncalves-Santos and Lourenco-Batista to the South 16th Street property. The men went to Oliveira-Coutinho's bedroom, where Oliveira-Coutinho showed the others his bank balance and complained that he had no money. Goncalves-Santos testified that Oliveira-Coutinho was upset because Vanderlei had lowered their wages, because work was slow in the winter months. Oliveira-Coutinho indicated again that they had to kill Vanderlei and that it had to be " 'today.'"

Oliveira-Coutinho, Goncalves-Santos, and Lourenco-Batista waited on the staircase for Vanderlei to come home. Oliveira-Coutinho handed Goncalves-Santos a box cutter that looked like a gun. Vanderlei came home. Lourenco-Batista hit Vanderlei, causing him to fall. Vanderlei screamed for Jaqueline and kept saying, " 'It's me, guys.'" Vanderlei sat up, and Goncalves-Santos hit him with the iron bar. Lourenco-Batista then hit Vanderlei on the forehead. At that point, Vanderlei was apparently dead.

[291 Neb. 305] Meanwhile, Jaqueline came running to Vanderlei. Oliveira-Coutinho grabbed her and punched her in the mouth. He then told Lourenco-Batista to get Christopher. Jaqueline and Christopher were taken to Oliveira-Coutinho's bedroom. Goncalves-Santos testified that Jaqueline's legs and hands were taped and that " we tied her with a sock."

Oliveira-Coutinho demanded bank account numbers from Jaqueline. She told him the numbers. Oliveira-Coutinho retrieved the bank card and returned with the card and a box of checks. Oliveira-Coutinho made Jaqueline sign the checks. At this point, Oliveira-Coutinho left Lourenco-Batista with Jaqueline and Christopher while he and Goncalves-Santos went to the bank to withdraw cash. After the trip to the bank, Oliveira-Coutinho drove to the Missouri River to look for a place to " throw him away and be free of these people."

After returning to the South 16th Street address, Oliveira-Coutinho and Goncalves-Santos found that Lourenco-Batista had untaped Jaqueline's hands. Oliveira-Coutinho said that doing so was " 'dangerous. This woman might hit you.'" They tied Jaqueline back up, but took the tape off her feet and put a pillowcase over her head. Oliveira-Coutinho warned her that " '[i]f you do anything, you know what's gonna happen to Christopher.'"

Goncalves-Santos and Lourenco-Batista then walked Jaqueline down the hallway to a staircase, though not the same staircase where Vanderlei was killed. Oliveira-Coutinho stayed with Christopher. Goncalves-Santos stayed at the top of the staircase. Lourenco-Batista tied a rope around Jaqueline's neck, and the other end of the rope was tied to a railing at the top of the staircase. Jaqueline begged for her life, but Lourenco-Batista pushed her down the stairs. According to Goncalves-Santos'

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testimony, Jacqueline " rolled over and she hit the wall. And then she rolled again and she went down, and she stayed with her head down. Her knees were almost touching the ground and she was head-down . . . ." Goncalves-Santos took the rope off Jaqueline and placed her at the bottom of [291 Neb. 306] the stairs. From the bedroom, Oliveira-Coutinho asked, " 'Are you done?'"

They repeated the process with Christopher. Goncalves-Santos testified that he could not " stand to look at him, to see Christopher moving around." When it was finished, Oliveira-Coutinho again asked, " 'Is it over?'" Goncalves-Santos went to Christopher, who was still moving, and laid him next to Jaqueline.

While Oliveira-Coutinho looked for money, Goncalves-Santos and Lourenco-Batista wrapped the bodies in plastic and sheets and loaded them into Oliveira-Coutinho's van. Oliveira-Coutinho then drove to the Missouri River, where Goncalves-Santos and Lourenco-Batista unloaded the bodies. While Oliveira-Coutinho drove, Goncalves-Santos cut open the stomach of each body, apparently to keep the bodies from floating, and tied each body's legs to iron bars. The bodies were then placed in the river, but they continued to float. Oliveira-Coutinho was concerned that the bodies would be found, so they returned to the South 16th Street address to get a knife to cut the rope. Goncalves-Santos cut the iron bars from Vanderlei's and Jaqueline's bodies, but Christopher's body had disappeared. Goncalves-Santos threw the knife, iron bars, baseball bat, the contents of a bucket of Vanderlei's blood, and their cleaning supplies into the river.

The men returned to the South 16th Street location and cleaned more thoroughly. In addition, according to Goncalves-Santos, he and Oliveira-Coutinho parked Vanderlei's truck on a nearby street to make it look like the family had gone on vacation. The men then returned to the Park Avenue property to sleep.

Goncalves-Santos testified that they wrote checks and cashed them at a Wells Fargo Bank and also that Oliveira-Coutinho used the Szczepaniks' bank cards while with Goncalves-Santos and Lourenco-Batista. Goncalves-Santos testified that Oliveira-Coutinho hid the bank cards and checks in his van or in the attic at the Park Avenue property.

[291 Neb. 307] Goncalves-Santos testifed that he told his wife about the killings, but denied telling anyone else. He said that he did not tell law enforcement the truth at first because he did not know whom to trust, and admitted on cross-examination that he made inconsistent statements to law enforcement. Goncalves-Santos testified that he decided to tell the truth for Jaqueline's daughter's sake. He also testified that he believed he killed the family because he was with Oliveira-Coutinho and Lourenco-Batista when everything happened.

In addition to his testimony, Goncalves-Santos led law enforcement to the spot where the bodies had been placed in the river, though flooding prevented further search at that time. In addition, because of Goncalves-Santos' information, Vanderlei's blood was found at the South 16th Street property near a radiator in the entryway to the building. Vanderlei's blood was also found in a mop bucket located in a utility closet in the building.

On October 13, 2011, Goncalves-Santos returned with law enforcement to the location where the bodies were disposed of. Eventually, skeletal remains bundled in plastic and a " Thomas the Train" sheet were found. A pathologist testified that DNA evidence established the remains as Christopher but that the cause of death

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could not be determined due to the condition of the partial skeletal remains. Also recovered was a metal grate with a rope attached. Goncalves-Santos testified that the rope was the one they used to hang Jaqueline and Christopher. No other evidence was recovered, nor were Vanderlei's or Jaqueline's bodies found.

8. Testimony of Patricia Barbosa dos Santos-Oliveira

Oliveira-Coutinho's wife, Patricia Barbosa dos Santos-Oliveira, testified. According to her testimony, Oliveira-Coutinho had a 5-year plan, which began in 2005, to earn money and then return to his family in Brazil. In addition, Patricia testified that Goncalves-Santos and Lourenco-Batista [291 Neb. 308] owed Oliveira-Coutinho money upon their arrival in the United States.

Patricia testified that Vanderlei had " laid [Oliveira-Coutinho] off," but then rehired him at a lower wage, and that Oliveira-Coutinho was angry because he worked hard for " very little money." Oliveira-Coutinho told Patricia that Vanderlei treated him " like a slave," that Oliveira-Coutinho hated Vanderlei, and that he was thinking of killing Vanderlei. Patricia told him that " only God has the power to give life and . . . to take life" and that he could not kill Vanderlei because he could not repent from that. Oliveira-Coutinho replied that he would not kill Vanderlei because of Christopher. When Patricia later asked if Vanderlei and Oliveira-Coutinho's relationship had improved, he said that it had not but that it did not matter, because he and " the boys" had something planned. According to Patricia, Oliveira-Coutinho referred to Goncalves-Santos and Lourenco-Batista as " the boys."

At the end of January or beginning of February 2010, Oliveira-Coutinho contacted Patricia in Brazil and requested that if anything happened to him she should transfer money from his bank accounts to her bank accounts in Brazil. She testified that she did so via " Xoom." She also testified that Oliveira-Coutinho never told her that the Szczepanik family was missing.

By mid-February 2010, Patricia began almost daily contact with Goncalves-Santos's wife and assisted the Omaha Police Department in making contact with her. Patricia testified that she assisted law enforcement because " when you're made aware of a crime being committed and you don't report that crime, then I believe that you are just as guilty as the perpetrators of that crime. And I did not want to have that guilt on me."

9. Motion for Advance Ruling--Goncalves-Santos Cross-Examination

As relevant on appeal, Oliveira-Coutinho filed a motion for advance ruling seeking to cross-examine Goncalves-Santos [291 Neb. 309] about his sexual relations with animals, his killing or harming of animals, his threats to kill his wife, and any other violent or antisocial tendencies or behaviors. In connection with this, Oliveira-Coutinho also sought to introduce the testimony of Renan Diaz, one of Goncalves-Santos' cellmates at the Douglas County Correctional Center. Oliveira-Coutinho argued that this evidence was relevant and went to the competency of Goncalves-Santos as a witness under rule 601.[1]

The district court rejected Oliveira-Coutinho's motion for advance ruling. It reasoned that the evidence Oliveira-Coutinho sought to introduce had no bearing on Goncalves-Santos' competency as a witness and, further, did not bear on Goncalves-Santos' credibility, because none of the questions which Oliveira-Coutinho

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sought to ask were probative of Goncalves-Santos' truthfulness or lack thereof.

The district court further concluded that Oliveira-Coutinho could not ask Diaz questions related to specific instances of Goncalves-Santos' conduct, because such extrinsic evidence, under rule 608(2),[2] could not be used to attack a witness' credibility.

The district court next rejected Oliveira-Coutinho's contention that the evidence which he sought to admit would contradict Goncalves-Santos' presumed testimony that he, Goncalves-Santos, was not violent, but that he killed only under Oliveira-Coutinho's orders. The district court found there was nothing to suggest that Goncalves-Santos would testify that he was not violent; to the contrary, his testimony about committing the murders would tend to support the conclusion that Goncalves-Santos was violent. The evidence Oliveira-Coutinho sought to introduce, then, would not contradict Goncalves-Santos' testimony.

Finally, the district court rejected Oliveira-Coutinho's assertions that these questions of Goncalves-Santos would [291 Neb. 310] show bias on the part of Goncalves-Santos against Oliveira-Coutinho. The district court reasoned that none of the questions which Oliveira-Coutinho sought to ask touched upon the relationship between Oliveira-Coutinho and Goncalves-Santos or upon Goncalves-Santos' self-interest.

Oliveira-Coutinho filed a motion to reconsider, alleging that cross-examination on the issues sought was " 'reverse 404(b)'" [3] evidence offered to prove Goncalves-Santos' conscious guilt, as well as for impeachment if Goncalves-Santos testified otherwise. The court denied the motion to reconsider, reasoning that the evidence could not show Goncalves-Santos' conscious guilt where Goncalves-Santos had admitted his guilt.

10. Other Pretrial Motions

(a) Motion to Sequester

Prior to trial, Oliveira-Coutinho sought a change of venue and to have the jury, once selected, sequestered for the duration of the trial due to pretrial publicity. The district court granted the motion with regard to sequestering the jury for deliberations but otherwise denied the motion, concluding that the evidence before it showed that while there had been significant pretrial publicity, it was not " invidious, inflammatory, misleading, or biased against [Oliveira-Coutinho]."

(b) Family Photograph

Prior to trial, Oliveira-Coutinho sought to have a family photograph of the Szczepaniks excluded from evidence as prejudicial. The district court denied that motion, agreeing with the State that in this case, the photograph was necessary for purposes of identification.

(c) Handwriting Expert

Oliveira-Coutinho also objected to the State's handwriting expert, Charles Eggleston. The district court held a [291 Neb. 311] Daubert/Schafersman hearing regarding the admissibility of Eggleston's testimony.[4] The district court found that Eggleston qualified as an expert and that his testimony satisfied the standards of Daubert/Schafersman

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and was therefore ...


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