STEPHAN, J.
In 2009, Jeffrey D. Glazebrook was convicted of first degree murder in connection with the 1977 death of Sadie May McReynolds. He was sentenced to life imprisonment. In this direct appeal, Glazebrook contends that the State's delay in charging him with the offense violated his constitutional rights and that the trial court erred in receiving certain evidence over his objections. We find no merit in the constitutional claim, but we determine that the conviction must be reversed because the district court improperly received evidence of Glazebrook's criminal history.
Shortly after 1 p.m. on November 7, 1977, the Ashland, Nebraska, rescue squad was dispatched to the Ashland home of 97-year-old McReynolds. McReynolds was a widow who lived alone. She was transported to a Lincoln, Nebraska, hospital, where the admitting nurse documented bruises on McReynolds' right lower leg, left thigh, left wrist, and left hand. McReynolds also had large amounts of dried blood on her face, abdomen, legs, and feet. An examination at the hospital disclosed that McReynolds sustained injuries to her vagina and urethra. McReynolds died on November 20, 1977, as a result of her injuries.
In 2008, a Saunders County grand jury indicted Glazebrook on one count of first degree sexual assault and one count of felony murder in the first degree in connection with the assault and death of McReynolds. The State later filed the operative second amended information charging Glazebrook with a single count of first degree murder. The State alleged that Glazebrook killed McReynolds during the perpetration of a sexual assault or a robbery. Following a preliminary hearing, the court determined there was probable cause to believe that Glazebrook committed the murder but stated there was no evidence a robbery had occurred.
Glazebrook filed a plea in abatement asserting various arguments, including that the delay in filing charges against him had unfairly prejudiced his right to present a defense, in violation of his due process rights under the federal and state Constitutions. The district court over-ruled the plea in abatement but specifically stated that Glazebrook could raise the issue of preindictment delay at trial. Glazebrook then entered a plea of not guilty.
Before trial, the State filed a motion requesting a hearing on the admissibility of other "crimes, wrongs, or acts" committed by Glazebrook. The pretrial motion asserted the other crimes were relevant to prove the identity of the person who killed McReynolds and as "proof of motive, opportunity, intent, preparation, plan, knowledge, or absence of mistake or accident."
A rule 404
First responders testified they found McReynolds lying on the floor, partially in a hallway and partially in a bathroom, dressed in a flannel nightgown which she was still wearing when she was taken to the hospital. An Ashland police officer who was one of the first officers at the
At Osborne's request, Trooper James Snyder of the Nebraska State Patrol went to the Lincoln hospital to which McReynolds was taken. Snyder arrived at the hospital at 1:30 p.m. and was present in the emergency room when McReynolds was questioned by a nurse regarding the events which led to her injuries. McReynolds reported that her doorbell rang sometime after 9:30 p.m. on the preceding day and that when she responded, an unidentified man grabbed her and pushed her down "`"over [her] organs."'" He told her to do certain things, such as to "`spread [her] feet apart.'" McReynolds thought that his objective was sex. The man eventually apologized and left.
Utilizing a "rape kit," the nurse assisted an attending physician in obtaining tissue specimens from McReynolds, including fingernail scrapings, vaginal and rectal smears, and hair specimens. Snyder took possession of the rape kit and delivered it the same afternoon to Karen Schmidt, who was then the chief forensic serologist at the State Patrol Criminalistics Laboratory (crime lab) in Lincoln. Schmidt placed the rape kit in a locked evidence room at the crime lab. On the following morning, Osborne brought additional items of evidence to Schmidt, including a nightgown and a washcloth. Schmidt inventoried and numbered each item of evidence and placed each item in a separate paper bag labeled with the case number. The nightgown and washcloth were placed in a paper bag which was initialed by Schmidt and Osborne.
Schmidt later performed nondestructive testing on the tissue specimens included in the rape kit. She also examined the nightgown, which had McReynolds' name on it and was heavily stained with blood and urine. Schmidt was unable to detect the presence of semen from either the rape kit specimens or the nightgown. Schmidt did find that the blood on the nightgown was the same type as the sample of McReynolds' blood from the rape kit specimen. Schmidt also observed hairs on the nightgown, which she removed and mounted on four individually numbered microscope slides. After examining the slides, Schmidt determined that slides Nos. 3 and 4 contained hairs that did not come from McReynolds. Schmidt identified the hairs on slide No. 3 as head hairs and those on slide No. 4 as pubic hairs. After examining the slides, Schmidt stored them in slide mailers and put them in the crime lab's evidence room; the nightgown was placed in its paper bag and returned to the evidence room. The nightgown and other evidence were later released to Osborne, but the slides containing the hair specimens obtained from the nightgown were retained in the crime lab.
An investigator with the Nebraska State Patrol interviewed Glazebrook in December 1977, at Osborne's request. Glazebrook, then a 17-year-old, resided in Ashland, as did other members of his family. He told the investigator he had not known McReynolds personally, but he knew who she was because he had scooped her walks on one occasion and his brother may have mowed her lawn. Glazebrook told the investigator that on the evening of the assault, he and a few friends were in Council Bluffs, Iowa, and he returned to his grandparents' home in Ashland at approximately 11:45 p.m. Glazebrook's grandparents lived approximately one block from McReynolds' home. He denied assaulting
A urologist who treated McReynolds following the assault found that her urethra was severely lacerated and torn. A forensic pathologist reviewed the medical records and concluded the injuries McReynolds sustained in the assault were the direct cause of her death.
Nebraska State Patrol Lt. Robert Frank began reviewing the McReynolds files as a cold case in 1996. He knew about advances in DNA testing and was looking for DNA evidence. When he learned of the slides containing the hair specimens, Frank went to the locked long-term evidence storage facility, where he located a cardboard box with the McReynolds case number on it. Inside the box was a black plastic garbage bag containing individual brown paper bags and boxes. One of the paper bags contained the nightgown and the washcloth. Frank testified neither this paper bag nor any of the others had been sealed or stapled shut. He determined the evidence had not been checked out of the storage facility after 1978, but was unable to locate the slides.
Frank then contacted the crime lab to ask about the slides. The crime lab found two of the four slides, Nos. 3 and 4, and Frank had those slides sent to an outside facility for DNA testing. No nuclear DNA could be obtained from the slides, and they were returned to the crime lab in November 1997.
In late 1999, Frank learned of a new technology known as mitochondrial DNA (mtDNA) testing. This technique differs from nuclear DNA testing in that it utilizes DNA from outside the cell nucleus which is inherited only from the individual's mother. The testing of mtDNA can exclude individuals as donors, but cannot identify a specific individual as a donor or identify the donor's sex, race, or ethnicity. Frank obtained slides Nos. 3 and 4 from the crime lab and sent them, along with two vials of Glazebrook's blood, to a testing facility. At the facility's request, Frank later sent 19 head hairs obtained from Glazebrook.
Pamela Pogue performed mtDNA testing on the slides prepared by Schmidt and sent to her by Frank. Pogue also tested the hair specimens and blood obtained from Glazebrook. Over a defense objection with respect to chain of custody and relevance, Pogue testified that Glazebrook could not be excluded as the donor of the hair on one of the slides. Pogue sent the mtDNA sequence she found on that slide to the Federal Bureau of Investigation's database to determine how often that particular mtDNA sequence had been found in an individual. The database showed that the sequence had been found in 1 of 563 African Americans, 0 of 1,219 Caucasians, 0 of 302 Hispanics, and 0 of 342 Asians.
Although 19 hair samples taken from Glazebrook were sent to Pogue to serve as known samples of his mtDNA, only 1 hair sample was returned after the mtDNA testing was completed. Pogue testified she did not know what happened to the remaining 18 hair samples, but she was confident that they were not consumed in the testing process.
Over Glazebrook's objection, evidence regarding the assaults committed by Glazebrook on E.S. and K.B. was received at trial. The court instructed the jury that the evidence was received "for the limited purpose of establishing the identity of the person responsible for the charged offense" and that the jury must consider the evidence "for that limited purpose and for no other."
After the State rested, Glazebrook renewed his plea in abatement and a hearing
The jury returned a verdict of guilty, and Glazebrook was sentenced to life imprisonment. He perfected this timely direct appeal.
Glazebrook assigns, restated and renumbered, that the district court erred in (1) not dismissing the charge on the basis of preindictment delay, in violation of his rights under the 6th Amendment and the Due Process Clause of the 14th Amendment to the U.S. Constitution; (2) receiving the other crimes evidence over his objection; and (3) receiving the mtDNA evidence over his objection.
Glazebrook argues the State's delay in filing charges against him in connection with the McReynolds homicide violated his rights under the 6th Amendment and the Due Process Clause of the 14th Amendment. He did not assert his Sixth Amendment claim in the district court. Absent plain error, this court will not consider an issue not raised to the trial court.
The Due Process Clause of the Fifth Amendment protects a criminal defendant against unreasonable preindictment delay.
On this issue, Glazebrook had the burden of establishing that the delay in filing charges actually prejudiced his defense and that the State intentionally caused the delay to gain an unfair tactical advantage.
Glazebrook argues the district court erred in receiving, over his objection, evidence of other crimes he committed. We summarize the other crimes evidence here.
In May 1978, Glazebrook was convicted by a jury of an assault with intent to inflict serious bodily injury on E.S. Glazebrook was sentenced to 4 to 10 years' imprisonment. He was 17 years old at the time the crime was committed. E.S. was 56 when she was assaulted and died before the rule 404 hearing in this case. At trial, the State offered the testimony of E.S. from the 1978 trial and a portion of Glazebrook's testimony from that trial. This evidence was received over Glazebrook's objections under rules 403
E.S. testified at the 1978 trial that she had fallen asleep on her living room sofa on the evening of February 1, 1978. She woke to find a man standing over her and striking her head with a hammer. E.S. tried to resist, but he struck her several times. Suddenly he stopped and left. After he left, she discovered that her wallet was missing from her purse, which had been in her kitchen. The investigation revealed that Glazebrook broke into her house through a basement window and picked up the hammer in the basement. He could have taken the purse without disturbing her as she slept. Glazebrook testified at the 1978 trial that he knew E.S. from helping his brother mow her lawn, but stated he had never been in her home.
In September 1991, Glazebrook entered a no contest plea to a charge of first degree sexual assault of K.B. and was
K.B. was 45 years old at the time of the assault and lived in a basement apartment at her parents' home in Lincoln. Glazebrook was dating K.B.'s daughter at the time. In February 1991, K.B. was asleep in her apartment when she was awakened at 2 a.m. by a noise at her door. When the noise persisted, she got up to investigate. She found the door to her apartment ajar, and when she attempted to close it, Glazebrook unexpectedly entered. He told K.B. he had had an argument with her daughter and asked if he could use her restroom. K.B. agreed. When Glazebrook returned, he grabbed K.B.'s shoulders and pushed her to the floor, where they struggled and K.B. screamed for help. During the struggle, Glazebrook removed K.B.'s underwear and digitally penetrated her. K.B. managed to break away and run to the door, but Glazebrook caught her and dragged her onto her bed. When K.B.'s father heard the commotion and called down the stairs to ask what was going on, K.B., fearing for her life, told Glazebrook that if he left she would not tell about the incident. Glazebrook then left, and K.B. later called the police.
Glazebrook's principal objection to the evidence of his prior crimes was based on rule 404(2), which provides that evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he or she acted in conformity therewith. Such evidence may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
It is within the discretion of the trial court to determine relevancy and admissibility of evidence of other wrongs or acts under rules 403 and 404(2), and the trial court's decision will not be reversed absent an abuse of discretion.
Rule 404(2) prohibits the admission of relevant evidence for the purpose of proving the character of a person
But evidence of other crimes which is relevant for any purpose other than to show the actor's propensity is admissible under rule 404(2).
Here, the evidence of other assaults committed by Glazebrook was offered and received for the sole purpose of proving Glazebrook's identity as McReynolds' assailant. Other acts evidence may have probative value as to identity where there are overwhelming similarities between the other crime and the charged offense or offenses, such that the crimes are so similar, unusual, and distinctive that the trial judge could reasonably find that they bear the same signature.
But in other cases, we have held that general similarities between prior crimes and the charged offense are insufficient to establish admissibility of the prior crimes to prove identity under rule 404. In State v. Trotter,
Because McReynolds was unable to identify her assailant before her death, a jury could have concluded that someone other than Glazebrook committed the crime. Therefore, identity was a fact of consequence in the case.
The use of violence and the occurrence of injury are inherent in any assault, and the commission of an assault during nighttime hours in the victim's home is hardly unusual. The temporal proximity of the two attacks and the fact that both victims lived near Glazebrook and near each other lends some credence to a finding that the attack on E.S. is probative of the identity of the attacker of McReynolds. But the key in any identity analysis is whether the crimes are so unusual and distinctive that the trial judge can reasonably find that they bear the same signature.
In determining that evidence of the assault against K.B. was admissible on the issue of the identity of McReynolds' assailant, the district court reasoned (1) both victims were considerably older than Glazebrook, (2) both assaults occurred late at night in the homes of women who lived alone, (3) Glazebrook knew both women, and (4) both women were forced to the floor and digitally penetrated. But again, the use of violence and the occurrence of injury are inherent in any assault, and the commission of a sexual assault during nighttime hours in the victim's home is hardly unusual. And although Glazebrook knew both K.B. and McReynolds, the manner by which he knew them differed greatly, in that K.B. was the mother of his girlfriend and McReynolds was an elderly woman who lived in his hometown and for whom he performed odd jobs. And while both victims were older than Glazebrook, nothing about the age difference creates an inference of a signature method of carrying out the crimes. It is notable too that McReynolds was assaulted in Ashland, while the assault upon K.B. occurred more than 13 years later in Lincoln. Viewing the evidence as a whole, we conclude that while there are some general and superficial similarities between the crimes, the manner in which they were committed is not so similar, unusual, and distinctive that they could be reasonably found to bear the same signature. The evidence of Glazebrook's assault on K.B. was therefore inadmissible under rule 404(2). Accordingly, we conclude the district court abused its discretion in receiving evidence of Glazebrook's assault of K.B.
An erroneous admission of evidence is considered prejudicial to a criminal defendant unless the State demonstrates that the error was harmless beyond a reasonable doubt.
Here, the other evidence of guilt is not as compelling. The mtDNA testing utilized in this case can exclude individuals as donors, but it cannot identify a specific individual as a donor or identify the donor's sex, race, or ethnicity. Although the testing established that Glazebrook could not be excluded as the donor of the hair found on the nightgown, it did not establish with certainty that the hair was his. And, as noted below, there are circumstances affecting the weight to be given to the mtDNA test results.
An appellate court may, at its discretion, discuss issues unnecessary to the disposition of an appeal where those issues are likely to recur during further proceedings.
As noted, the hair specimens tested for mtDNA were taken from a nightgown which Osborne delivered to the crime lab on the day after McReynolds was hospitalized. Osborne died prior to Glazebrook's trial, and his testimony was not preserved. Glazebrook argues there was insufficient foundational evidence regarding when, where, or by whom the nightgown was taken into the custody of law enforcement.
Where objects pass through several hands before being produced in court, it is necessary to establish a complete chain of evidence, tracing the possession of the object or article to the final custodian; and if one link in the chain is missing, the object may not be introduced in evidence.
Glazebrook relies on Priest v. McConnell
The chain of custody evidence is considerably stronger in this case than in Priest or Raskey. Schmidt, the forensic serologist who obtained the hair specimens from the nightgown, testified she took the nightgown from a paper bag Osborne delivered to her on the day after McReynolds was found and taken to the hospital. Osborne was identified as the Nebraska State Patrol investigator responsible for Saunders County who responded to the crime scene and directed the investigation. There was testimony that in 1977, it was standard procedure for State Patrol investigators to place evidence in a clean paper bag for delivery to the crime lab. There was evidence McReynolds was wearing a nightgown when she was found lying on the floor after the assault and that there was blood on the floor. There is also testimony that McReynolds was wearing a nightgown when she arrived at the hospital and that she had dried blood on her body. Schmidt testified that the nightgown had McReynolds' "name on the back cover" and was heavily soiled with blood and urine. Testing established that bloodstains on the nightgown matched McReynolds' blood type. Schmidt testified as to the manner in which she placed the hair specimens from the nightgown on microscope slides, which were retained in the custody of the crime lab from 1977 until they were sent out for DNA testing in 1996 and again in 1999. There is no evidence of tampering. From this evidence, it is reasonably probable that the nightgown from which the hair specimen was taken was the nightgown worn by McReynolds at the time of the assault and that it was on her person or in the custody of the State Patrol at all relevant times prior to the mtDNA testing. We therefore conclude the district court did not abuse its discretion in deciding that there was sufficient foundational evidence regarding chain of custody to permit testimony regarding the results of mtDNA testing on the hair specimen taken from the nightgown.
Glazebrook argues that because two of the original microscope slides containing hair obtained from the nightgown are now missing and only 1 of the 19 hair samples taken from him were returned by the crime lab which performed the mtDNA tests, the test results cannot be associated with the McReynolds assault with any degree of confidence. We conclude these matters go to the weight of the test results, not their admissibility.
Glazebrook argues the results of mtDNA testing should not have been admitted because "[t]he State did not obtain an elimination mtDNA profile for . . . McReynolds or any of the other ten individuals" who were present at the McReynolds residence during the initial investigation of the crime.
Relevant evidence is that which has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
The State was not required to produce mtDNA profiles of each person who was present at the crime scene, as Glazebrook contends. But it is clear from the record, and from the jurisprudence and forensic literature, that mtDNA "is not a unique identifier because it is shared by individuals within a given maternal line."
As noted, the State presented evidence in this case that according to the Federal Bureau of Investigation's database, the particular mtDNA sequence obtained from the evidence had been found in 1 of 563 persons of African American descent, 0 of 1,219 Caucasians, 0 of 302 Hispanics, and 0 of 342 persons of Asian descent. But Pogue noted that back in 1999, this was a small database, and the record includes no explanation of the significance of this raw data in arriving at a statistical probability analysis to establish relevancy.
Having found reversible error, we must determine whether the totality of the evidence admitted by the district court was sufficient to sustain Glazebrook's conviction. If it was not, then concepts of double jeopardy would not allow a remand for a new trial.
For the reasons discussed, we reverse the judgment of the district court and remand the cause for a new trial.
Reversed and remanded for a new trial.
CONNOLLY, J., participating on briefs.
WRIGHT, J., not participating.
