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State v. Kidder

Supreme Court of Nebraska

March 9, 2018

State of Nebraska, appellee,
v.
Matthew J. Kidder, appellant.

          1. Constitutional Law: Search and Seizure: Motions to Suppress: Appeal and Error. In reviewing a trial court's ruling on a motion to suppress based on a claimed violation of the Fourth Amendment, an appellate court applies a two-part standard of review. Regarding historical facts, an appellate court reviews the trial court's findings for clear error. But whether those facts trigger or violate Fourth Amendment protections is a question of law that an appellate court reviews independently of the trial court's determination.

         2. Rules of Evidence: Other Acts: Appeal and Error. It is within the discretion of the trial court to determine relevancy and admissibility of evidence of other wrongs or acts under Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Reissue 2016), and the trial court's decision will not be reversed absent an abuse of discretion.

         3. Criminal Law: Convictions: Appeal and Error. In criminal cases, the purpose of harmless error review is to ensure convictions are not set aside for small errors or defects that have little, if any, likelihood of having changed the result of the trial.

         4. Criminal Law: Appeal and Error. Harmless error jurisprudence recognizes that not all trial errors, even those of constitutional magnitude, entitle a criminal defendant to the reversal of an adverse trial result.

         5. Convictions: Appeal and Error. It is only prejudicial error, that is, error which cannot be said to be harmless beyond a reasonable doubt, which requires that a conviction be set aside.

         6. Appeal and Error. When determining whether an alleged error is so prejudicial as to justify reversal, courts generally consider whether the error, in light of the totality of the record, influenced the outcome of the case.

         7. Verdicts: Juries: Appeal and Error. Harmless error review looks to the basis on which the jury actually rested its verdict. The inquiry is [299 Neb. 233] not whether in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the actual guilty verdict rendered was surely unattributable to the error.

         8. Trial: Evidence: Appeal and Error. In conducting harmless error analysis an appellate court looks to the entire record and views the erroneously admitted evidence relative to the rest of the untainted, relevant evidence of guilt.

         9. Verdicts: Evidence: Appeal and Error. Overwhelming evidence of guilt can be considered in determining whether the verdict rendered was surely unattributable to the error, but overwhelming evidence of guilt is not alone sufficient to find the erroneous admission of evidence harmless.

         10. Evidence: Appeal and Error. When conducting harmless error review, an appellate court may consider whether the improperly admitted evidence was cumulative and tended to prove the same point as other properly admitted evidence.

         11. Appeal and Error. Plain error may be found on appeal when an error unasserted or uncomplained of at trial, but plainly evident from the record, prejudicially affects a litigant's substantial right and, if uncorrected, would result in damage to the integrity, reputation, and fairness of the judicial process.

         12. Sentences. A sentence validly imposed takes effect from the time it is pronounced, and any subsequent sentence fixing a different term is a nullity.

         13. __ . Any attempt to modify a sentence validly imposed is of no effect, and the original sentence remains in force.

         Appeal from the District Court for Douglas County: Kimberly Miller Pankonin, Judge. Affirmed in part, and in part vacated and remanded with directions.

          Thomas C. Riley, Douglas County Public Defender, L. Robert Marcuzzo, Douglas A. Johnson, and Natalie M. Andrews for appellant.

          Douglas J. Peterson, Attorney General, and Austin N. Relph for appellee.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

          [299 Neb. 234] Stacy, J.

         Matthew J. Kidder appeals his convictions for first degree murder and use of a deadly weapon to commit a felony. We affirm his convictions, but find plain error in the sentence imposed on the conviction for use of a deadly weapon to commit a felony. We therefore vacate that sentence only and remand the cause with directions.

         FACTS

         On June 25, 2015, Jessica Nelson's mother received a telephone call advising that Nelson had not shown up for work. Her mother went to Nelson's house to check on her and discovered Nelson's body partially submerged in the bathtub, unclothed, with the water running. She was curled up in a fetal position, and one hand was clutching a cell phone charging cord. Nelson's clothes were piled in the tub near her feet. Blood was pooled under Nelson's head, and there was a ligature mark on her neck.

         Police officers arrived and processed the scene as a homicide. Investigators found no point of forced entry into the home. They took photographs and collected Nelson's cell phone, the charging cord, and the clothes from the bathtub. Blood was found outside the bathroom, in the living room, and in Nelson's bedroom. Swabs were taken of the cell phone cord and the various biological substances found throughout the house. Investigators noticed Nelson's right thumbnail was bent back, so they also swabbed under her fingernails and took fingernail clippings.

         An autopsy revealed bruises and abrasions on Nelson's neck, hemorrhaging in her eyes, and a ligature mark on her neck that was consistent with the cell phone cord. The cause of death was strangulation. There was also evidence Nelson had been sexually assaulted. She had a laceration and bruising in her vaginal area, as well as contusions to her head, abdomen, and bowel.

          [299 Neb. 235] Text Messages From Kidder

         Nelson's cell phone was analyzed, and detectives found what they described as "eerie" text message conversations with a telephone number later confirmed to belong to Kidder. Nelson and Kidder had known each other since childhood.

         The text conversation began on February 4, 2015. The first message arranged for Kidder to shovel snow from Nelson's driveway. For the next several months, Kidder texted Nelson, often suggesting they meet up. Typically, Nelson either turned Kidder down or did not respond.

         On April 16, 2015, Kidder texted saying he needed someplace to "h[a]ng out" while he waited to run an early morning errand, and he asked if he could stop at Nelson's house. Nelson agreed, but stated she would likely still be asleep and would leave the door unlocked. She told Kidder he could watch television, nap on the couch, or use the chairs outside while he waited. Later, the following text conversation occurred:

[Kidder:] 111 admit, a little part of me wanted to run in and doggy pile you, but i didnt feel like being stabbed or beat up. Lol.
[Nelson:] Lol yeah that def would've happened. Im a grouch when my sleep is interrupted unless you're [my son], then I'm less grouchy lol[.]
[Kidder:] Lol. Maybe next time.
[Nelson:] If you want to die.
I do keep a good sized knife in my nightstand drawer.
[Kidder:] Challenge accepted.
We will need to lay down some ground rules though. No hair pulling, no biting. Lol.
[Nelson:] Or you could just leave me alone when I'm sleeping. Save us all the hassle[.]

         Kidder continued to text Nelson regularly, and some of Kidder's messages were sexual in nature. On June 19, a few [299 Neb. 236] days before the murder, Kidder sent Nelson the following sequence of text messages:

[Kidder:] Scale of feeling playful stabby to murdered on my sleep.
Yeah. Trying to make a joke, and now shes mad at me. Lol.
In*
I figured itd be a funny "breaking the ice" joke since every other guy sends dick pics for their first or all communication and im the one ...

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