Consider the Evidence
An excerpt from the closing statement of the prosecuting lawyer in the trial of Tom Nissen, on trial for the murder of Brandon Teena.
Good morning everyone.
"Our problems are over." When the defendant showed up at his house between 12:30 and 1:00 a.m. on December 31st, 1993, he said to his wife, "Our problems are over." And as he said that to his wife, he was also telling you what his state of mind was. He was telling you what was goin' on in his head. You're gonna receive an instruction regarding intent. And in that instruction you will read that intent is -- is hidden. It's in the mind of the actor. And very rarely does someone come out and say what their intent is going to be. So you have to infer intent from the words of the actor. "Our problems are over."
First degree murder, we talked about it encompassing two separate, distinct theories. The first one is killing someone purposely and with deliberate and premeditated malice. To form the design to kill before the act is committed. To reflect on what you're going to do, make the decision, to deliberate on the decision, decide to do something and then act on that decision. You will also receive an instruction that you are governed by the evidence that you've seen and heard, and that you have to deliberate on that evidence. So you need to look at the evidence. Not listen to me, look at the evidence and what does it tell you about this intent, about this premeditation.
First of all, it tells you about malice. This corrupt state of mind toward Teena Brandon. You heard from a guy by the name of David Foote. Yeah, David Foote, he's got a felony conviction and he was in jail. But David Foote was here, looked you straight in the eye and told you about comments made to him. David Foote would rather have been on the beach in Florida. But David Foote told you, when I was in jail he told me -- the defendant told me about his thoughts on Teena Brandon. He was disgusted with Teena Brandon when he found out that this Brandon was actually a female, Teena Brandon.
You know, Teena Brandon had a lot of problems. She was messed up; she was confused. She was also twenty-one years old, and she deserved to find herself. To figure out who and what she was going to be. But the defendant didn't see it that way. He was disgusted with Teena Brandon. And how did that disgust manifest itself? This defendant and John Lotter, his buddy, his cohort -- you'll hear -- they were together all the way through, you've heard throughout the trial, acting together, being together, they show up at the home of Linda Gutierres and 2:00 a.m. on Christmas Day, that day of peace and goodwill toward men, and they're talkin' about how they depantsed Teena Brandon to show Lana Tisdel that Teena Brandon was a female. They humiliated her because they didn't like her lifestyle. They didn't agree with her and they were gonna show her. So they depantsed her in front of this Lana Tisdel, Linda Gutierres' daughter. By 6:00 a.m., four hours later, Teena Brandon is at the Gutierres home at the front door bruised and bloodied, and she's transported to the hospital.
Three days later, December 28th, you heard from Keith Hayes, who's now the Richardson Country Sheriff and was at the time a police officer in Falls City, by December 28th, Keith Hayes is conducting long, detailed interviews with this defendant and with John Lotter, again -- there's that name again -- hand in hand, acting together. And he tells them, "Teena Brandon reported that she was raped by you. You are suspects in the rape of Teena Brandon." That's December 28th. By the evening of the 30th, just about 48 hours later, what do we have for the evidence? Kandi Nissen told you Lotter and Nissen were together all day. This defendant and this John Lotter person together all day at the house. She told you they moved in and how they did things and they went places, and they were in and out of the house together all day on the 30th.
Steve Scholl talked to you about how they came to his gas station twice, not really needing anything. They got the tires filled with air and they got a quart of oil. And they came in a coup -- about an hour apart, the two trips. The pattern that's maintained all the way through this, the defendant is driving Lotter's mother's car, and Lotter is riding in the passenger seat. It's -- It's interesting to look at what they did at those two trips to the gas station. They got air in the tires and they got a quart of oil. What's that tell you? What's that evidence tell you? They were plannin' a trip. And it wasn't just nine miles down to Rulo to drink beer. I submit to you that it's more like a 70 mile round trip they turned this journey to Humboldt into. They're planning a trip. Intent. Premeditation was forming. If it's not already formed by that time. And that's 7:00 or 8 o'clock Thursday evening, December 30th.
By 9:30 they're leaving to go to the bar in Rulo, and what does this defendant say to his wife? I'm gonna go get a power of attorney for my mom. Now, that's interesting. You're goin' out to drink beer with your buddy, but you're talkin' about gettin' a power of attorney -- you're talking about giving someone else the authority to take care of your children in case something happens to you? Why? Look at the evidence and ask why. Because after you kill Teena Brandon and you're in jail, you're not gonna be able to take care of the kids. And so they go to Rulo.
And then you heard from Jim Morehead. It was Karaoke night and Mr. Morehead's got hearing problems, he hears the defendant make a statement along the lines of we're in trouble again. Something -- What he told you is he heard something about we're in trouble again. The intent. What's goin' on in this defendant's mind. They leave Rulo -- Mr. Morehead told you it was right about closing time, which he indicated was right before midnight -- and they go back to Falls City. And when you look at the events in Falls City, they're very telling. They're very crucial to this finding that malice existed; that this premeditation to kill had been formed; that the intent to kill existed in the mind of that actor.
When you look at the times of the various events that went on there in Falls City on the evening of the 30th into the early morning hours of the 31st, you can see that the pattern went like this: The first place they stopped was the home of John Lotter. Marci Vargas (sic) told you it was right about midnight or a little after. She was in the bathroom and heard someone come in. And as she exits, there's John Lotter coming out of the back bedroom. And you heard from John Lotter's mother and father that's the bedroom, in a dresser in that bedroom, is where this knife was kept. And this is the knife. He identified the knife by the sheath with his name on it. That's the knife. He also talked about gloves being in that drawer. And he looked at this exhibit and said those are like the gloves that were in the drawer. And then they left. Now, Marci Vargas (sic) couldn't tell you that it was the defendant in the car. She looked out the window and there was John Lotter's house, after pilfering the knife and gettin' a couple pairs of work gloves, the next stop was Bill Bennett's.
Mr. Bennett told you, "They stopped at my house between 11:00 and 1:00." Couldn't pin it down any more than that, but when you look at the fact that they stopped at Kandi's, at his own house between 12:30 and 1:00, and then Linda Gutierres' house at 1:00 or a little after, the next stop had to be Bill Bennett's. They both knew Bennett had a gun. Bennett testified "they both knew I had this gun." This is the gun. He identified this gun as his gun. And Mark Bohaty told you that this is the gun that fired the bullets that killed the people. Bill Bennett also mentioned that that was his gun and everything was the same with it except for the fact all the bullets were missing. They both knew Bill Bennett had the gun. Lotter was in the house for a very short period of time, but for a few minutes of that time he was out of sight of Bennett. And Bennett had talked about how he had gotten the gun fixed. Lotter was there when he was showin' him how it worked, and then he put it away. So they got the gun. And then they go home.
The defendant has a sandwich. You sure can't kill on an empty stomach. And after he eats a sandwich, he makes this comment, "Our problems are over." I submit to you that the evidence is showing -- I'm not tellin' you, this is what the evidence is tellin' you -- that at that point this intent to kill had been formed. Somewhere in that process between December 28th and that comment on December 31st, very early morning hours of December 31st, that intent to kill had been formed.
And again, don't take my word for it. Look what they did next. They went to the home of Linda Gutierres. Linda Gutierres, and her daughter Leslie Tisdel, and her daughter Lana Tisdel, and her son, and this other person were in the house. And notice that they are wearing the gloves by that time. Follow the gloves. It's im -- so important to follow these gloves from the time they're stolen out of Lotter's dresser to the time that they end up on the ice over the Nemaha River with blood stains on them covering -- covering the murder weapons. Follow the gloves. Lotter has the white pair on; the defendant has this pair of yellow gloves on. No question. It's that pair of gloves. Why are they wearing gloves? Well, you heard the testimony. Teena Brandon stays at Linda Gutierres' house. They were looking for Teena Brandon.
What else did the evidence about the trip to Linda Gutierres' home tell you? They parked a block down the street and then walked up to the house. Why? Why? Why? Why? You look at why. And I submit to you that the evidence tells you why. It tells you that they were lookin' for Teena Brandon and they were gonna kill her, and they sure didn't want their car parked out in front of the house if the killings were gonna take place there. And if Teena Brandon would have been in that home, those people all would have died. And we'd have six victims rather than three. And that's what the evidence tells you.
When they left the Gutierres home, they knew Brandon was in Humboldt. They asked where Phillip was. And Phillip DeVine had had a fight with his girlfriend, Leslie Tisdel, just that afternoon, and had gone out to Humboldt to stay with Lisa Lambert one night prior to getting on the bus and going home. And they -- And it was mentioned specifically, "Brandon's out in Humboldt." So where do they go. They head straight for Humboldt. And in looking at this plan, looking at the intent to kill, look at the drive to Humboldt. The defendant mentioned that they drove the speed limit. Why would you mention that? A lot of people do, but why did he make it a point to mention that? So they wouldn't get stopped. So they wouldn't have ticket. So there'd be no record of them in that vicinity. What else did they do on the trip to the farmhouse? They drove the back streets of the little town of Humboldt. They stayed off the main street -- the main drag of Humboldt. They drove the back streets and they drove by the deputy's house to make sure he was home; so no one would see them, and that they knew the deputy was home. It's 1:30 in the morning or so. And then they go to the house. And they -- They enter the house wearing the gloves.
Again, consider the evidence. If you're goin' into the house to scare someone, why do you have to wear the gloves? Because when you're done scaring that person, that person can say you were there. So why does it matter if you leave a fingerprint or two? But if you're goin' in there and you know that when you leave nobody's gonna be left alive in that house, you don't want to leave any fingerprints. Because if you leave prints, they can still put you at the scene. And the same thing with -- with -- with making the drive past the deputy's house, or driving down the streets. Why does it matter if someone sees you in the Humboldt if you're just goin' to scare Teena Brandon and Lisa Lambert and Phillip DeVine? It doesn't matter if someone sees you because Teena Brandon can say you were there. But if she's not gonna be alive to tell about it, you don't want anybody else to see you either. So they're wearin' these gloves as they go into the house.
And how they entered into the house? You saw the pictures. They shattered -- They shattered the door and entered in the house. But what else does the evidence tell you about intent? About the state of mind of this defendant and John Lotter when they entered into that house?
Perhaps the most graphic -- certainly the most graphic, but perhaps the strongest evidence of intent is the pictures from the crime scene. And I'm not gonna pull them out and show them to you again, but take the time to look at them. As distasteful, as unpleasant as they are, while you're deliberating look at what they did to these people. Teena Brandon -- The gun to Teena Brandon's chin was so close that the powder burned, the unspent powder burned. Then there's another bullet fired from such a range that it passed completely through her head and laid there on the bed, and it's recovered -- you can see it in the picture. There sits the spent bullet next to her head. And then of course she's stabbed. Look at the manner -- These are executions. There are assassinations. And they tell you a lot about the intent of the people when they walked in that door. These aren't wild shots that happened to hit someone or -- or spraying bullets around a place. These are calculated executions.
And Lisa Lambert fared no better. Lisa Lambert also -- The last sight in Lisa Lambert's life was seein' the item here, in Exhibit 105, close enough to her eye that the powder also burned her eye. That was the last thing Lisa Lambert saw before she died. Two bullets passed through her head and end up in that pillow that she's laying as she's shot. Of course, she lived long enough to beg for the life of her child, but died not knowing what happened to her child.
Executions. That's the only way to describe these killings.
And then Phillip DeVine. Consider Phillip DeVine. If you can imagine the terror of Phillip DeVine sitting in that room, this young amputee, sitting in that other room listenin' to two people die and knowing -- he had to know -- he was -- he was next. He knew it. And this defendant goes to that other room, herds Phillip DeVine into the living room, and then he, too, gets a bullet to the head, as well as one to the base of the neck.
What do the killings tell you about the intent? The intent to kill. I submit to you, and have submitted to you, that the intent to kill Teena Brandon was formed over that period of days, December 28th through around the 30th or through the point where she was actually shot. Somewhere in that time frame that intent was formed. The intent instruction will also tell you that intent can be formed instantaneously as long as it's formed prior to the act being done. And, so while they may not have had the precise intent to kill Lisa Lambert or Phillip DeVine when they walked into the home, they might not have known who else would be in there, but before Lisa Lambert and Phillip DeVine died, that intent was formed. It sure didn't take as long but there could be no witnesses after Teena Brandon was shot. So the intent to kill was there on these other two victims.
And even the post shooting activities of these two guys tells you something about their intent. Something about their plan. They took a route home that was twice as long, at least, as you'd need to. Sheriff Hayes outlined the route for you -- I think it's Exhibit 96 -- put it in yellow -- Yeah, it's 96. Take a look at the map. They headed exactly the opposite way you need to go from Humboldt to get back to Falls City. They headed straight south down into Kansas, along a winding blacktop country road called the Morrill Road, then they come out at the Kansas-Nebraska border south of Falls City. The usual route to Humboldt is north and west. It was -- It was twice as long of a trip. And -- And also consider what Investigator Reinhart found, one of the items he found in the car. It's Exhibit 111; it's a pocket road atlas. And look where the paperclips are; they're at the Kansas and Nebraska maps. That tells you something about their intent, about their plan, about where they knew they were gonna drive, where they were gonna be. As they drive into Falls City, the weapons are dumped over the bridge and they go to the defendant's home.
And still you have evidence of premeditation, plan. Of the plan to kill. Because what goes on at the house? First of all, they go to the locked back door of the house. Now, Kandi Nissen told you that she indicated to the defendant and John Lotter the front door would be open. "You can come in the front door." But if you go to the front door of a house, somebody might see you. So you go to the locked back door. And I have to knock on the door and get Kandi out of bed, and she comes and lets them in. And then what goes on in the house? "Lie for me," he tells her. "Lie for me. I was here all night with you. Lie for me. Wash -- Pour the Clorox over my hands as I wash my hands." And it's not because he was workin' on the car at 3 o'clock in the morning. He was washing his hands, hoping to get get rid of traces of blood. He gives her the bracelet that he had been wearing and that she had given him as an anniversary present and said, "Hide this where no one will ever find it." Get rid of the evidence. Hide the evidence he's tellin' her. And then he tells her to check his shirt for blood. "Is there blood on my shirt?" And he's not wearin' the gloves any more. And he may or may not have gone into the bathroom and thrown up, but one thing he did was roll over and go to sleep. And right before he drops off to sleep he mentions to Kandi Nissen that, "My past is gonna catch up to me now." It all goes to intent.
The evidence before you -- and again, don't take it from me, look at the evidence -- is that these two peole were acting together. There's no question. There's no evidence of him being afraid of John Lotter or him not knowing what Lotter's gonna do, except for his own self-serving statements. The evidence is that they were hand-in-hand plotting and hatching a plot and carrying through on the plan to kill Teena Brandon so she wouldn't testify about this rape allegation. And they're both responsible for the killings. I told you in the opening, I can't tell you for certain who pulled the trigger on each of these victims. And that's why you have an instruction that's called aiding and abetting. If you aid someone or encourage someone in acting, you are just as guilty. So whoever pulled the trigger, they're acting in concert. Look at -- Look at the instruction. Acting in concert, performing an act together. Both are equally guilty.
Some of the acts that the defendant did commit you can be sure of. He was doin' the drinkin'. Remember Lotter's mom sayin' he can't have the car unless someone else drives it. So John Lotter couldn't have gotten out there without his defendant driving his car there, for one thing. Another thing, he stabbed Teena Brandon. What's that tell you about intent? Now, Dr. Roffman couldn't tell you, the stabbing was either immediately prior to the shootings or immediately after the shootings because of lack of blood in the abdomen, but what's that tell you about intent? He didn't know if she was dead yet. He was makin' sure. That speaks volumes about intent, the stabbing.
And what else is done? He's the one that goes to get Phillip DeVine, and in his own words he's sayin' "I knew then, nobody was gettin' out alive." And he goes and gets Phillip DeVine, who is a member of a minority race that he doesn't much care for to begin with, and he brings Phillip DeVine into that living room where he can be shot. And the gun jams. Between the time that Teena Brandon is shot and Lisa Lambert is shot, that gun jammed again. The bullet on the floor between the legs of Teena Brandon tells you the gun jammed. He mentioned the gun jamming. "John, don't shoot them." "John, let's get out of here." "John, let them go." If Lotter's doin' all the shooting, what's he doing as he stands -- Is he just standing there watching people die? That's preposterous. He was involved in this and he's just as guilty.
You're gonna get an instruction on second degree murder. Second degree murder is intentional murder without premeditation. Without forming that intent beforehand. This is not second degree murder. This is cold, calculated, planned executions.
You'll also receive an instruction on what's called manslaughter in Nebraska. Manslaughter involves killing someone upon a sudden quarrel. It's a guy fightin' with his wife and he throws her down and she hits her head and dies. Certainly this is not manslaughter by any stretch. This is first degree murder.
Now, I haven't talked a whole lot about the defendant's statements he made. You've heard evidence of four -- four people that the defendant talked to: Investigator Chrans right after his arrest; Investigator Reinhart on January 2nd of '94; this Dave Foote within a couple months of the arrest while they're both incarcerated; and then the young writer from D.C., Eric Konigsberg, we heard from yesterday. Yesterday? Monday. Obviously the statements are valuable. But as you'll see in your instructions and as you would know out of common sense, these statements are only valuable insofar as they relate to the evidence. The evidence is the important thing. So when considering those statements, consider whether they are independently confirmed by the evidence.
Here's an example. He spoke about the manner of death in those statements. Who died first, where they were shot, such things as that. The physical evidence from the scene confirms that notion. You can say -- You can find, excuse me, without a whole lot of question that Teena Brandon died first, then Lisa Lambert, then Phillip DeVine. Not just because he says so, but because the evidence at the scene supports what he says.
Another little example is when he talked to Investigator Reinhart he said after Teena Brandon was shot but before Lisa Lambert was shot, the gun jammed and John had to extract a bullet and then reload before the massacre continued. Well there's a bullet that's found on the floor between Teena Brandon's legs. Again, that part of the statement is corroborated. It's -- It's confirmed by what the physical evidence is. And then he also says in his statements, and he's pretty consistent on it, "We were just goin' there to scare her. All we were doin' -- We were just gonna scare her about the rape." Well, for one thing, for the reasons I've just gone through, the evidence doesn't back that up. The evidence is of planned killings. But even assuming, if you can, that the intent was only to scare because of the rape, knowingly or unknowingly the defendant was confessing to first degree murder. He was confessing to the second prong of first degree murder called felony murder. Felony murder in this case is defined as killing another in the perpetration of a burglary. Excuse me. As opposed to premeditated intentional killing, felony murder involves killing someone in the perpetration of another felony. In this case, a burglary. Your instructions will tell you, and it's crucial to keep in mind, that no intent to kill need be present on felony murder. The intent that is needed is the intent to commit the underlying felony. And if some -- And if a person dies at your hands while you're in the process of committing this underlying felony, you are guilty of felony murder. It's the situation where two guys walk into a liquor store to rob the liquor store and one has a gun, and during the process of rubbin' -- robbin' the liquor store he puts the gun to the proprietor's head and kills him. The killing is imputed to both individuals under this felony murder theory. The second guy need not have any inkling that the killing was going to happen as long as he had the intent to rob the liquor store. And that's crucial to keep in mind.
Here we're talkin' about the intent to perpetrate a burglary. You've got to look at the definition of burglary, and it's in there for you in your instructions, but burglary is forcibly breaking and entering into a building with the intent to commit a felony. So, here we are, an intent to commit a felony. But forcibly breaking and entering, there's no question here. Again, check out the pictures, look at the doorjamb; it's splintered. It's shattered. Certainly a forceful act opened the door to that building. And there's very little question that then the defendant and this John Lotter character enter. They broke into the home and entered into the home. And let's just say that the intent was only to scare Teena Brandon about the rape. If it was -- and again I don't submit for a minute that it was, the intent was to kill -- but if it was, are there any felonies that are supported by the evidence? And the State submits to you that there are four of possible felonies that line up under this theory of felony murder. And you'll read about them in your instructions, but I'd like to go through them with you right now.
The first underlying felony, you broke and entered into that home to commit the felony of intimidation of a witness. You'll get a definition of intimidation of a witness, but basically, if you believe that a criminal investigation is pending and you attempt to induce a witness to testify falsely or to withhold testimony in some way, you are guilty of intimidation of a witness. You'll get a definition of intimidation of a witness, but basically, if you believe that a criminal investigation is pending and you attempt to induce a witness to testify falsely or to withhold testimony in some way, you are guilty of intimidation of a witness. Does that fit the facts, even as the defendant tried to use -- tried to state the facts in his attempt to pin everything on John Lotter, does that fit the facts? Absolutely. They knew the criminal investigation into the rape was pending. They'd been told about it on December 28th. And if their intent was to go scare Brandon to not -- so that she not testify about those proceedings, that's intimidation of a witness. They wanted her not to testify about the rape complaint. She is killed in the perception of that felony, and that's felony murder. That's first degree murder.
But even if we've got felony murder of Teena Brandon, what about Lisa Lambert and Phillip DeVine? Again, the intent to kill Lisa Lambert and Phillip DeVine is then formed, and it's carried through. And actually Teena Brandon -- or Lisa Lambert and Phillip DeVine are also -- are also killed under the felony murder theory because you'll get an instruction on something that -- lawyers just love words like this -- res gestae, it's called. And what the heck does that mean? Res gestae means that even though the object of the felony is technically over, if the later events occur in such close proximity to the original felony, then it's all part of one transaction. So they are actually killed under the felony murder theory as well. And what's the second felony that fits these facts, if they are -- if you are to believe that this defendant was only going in there to scare the people. The second felony fits the burglary definition, the breaking and entering with the intent to commit a felony, is false imprisonment. And again, you'll see a definition of it.
False imprisonment is defined as knowingly restraining a person under terrorizing circumstances, or under circumstances that expose the person to the risk of serious bodily injury. Restraining someone under terrorizing circumstances, with restrain being defined as restricting the movements of that person, to interfere with the person's liberty. That's defined by the facts of this case. How could the circumstances have been more terrorizing? And certainly these people were being restrained so as to interfere with their liberty. They weren't goin' anywhere. They were all gonna die. So you've got a second felony that fits under the definition of felony murder.
And there's two more even, if you can indulge me for a few minutes. Assault in the first degree. Assault in the first degree is intentionally or knowingly causing serious bodily injury to another person. Once again, that's an easy one. That's what they did, for goodness sakes. They caused serious bodily inury to another person, after breaking and entering into that home. That's a felony, assault in the first degree.
Assault in the second degree also fits under the felony murder theory. Again, it's what happened. Assault in the second degree is knowingly causing bodily injury with a dangerous instrument. I'd say Exhibit 105 and 106 are dangerous instruments, and they were certainly used in that way. So if you're lookin' at felony murder, if you want to believe that the only intent in the mind of this defendant was to scare those people in spite of all the evidence of premeditation, he's still guilty of first degree murder.
These instructions are not as complicated as they seem. You'll scratch your head over a couple of them. Wait till you'll get to number two, talking about the elements of the crime. But these are not that complicated.
This situation is not that complicated. What we've got here is planned -- a planned, carried out series of executions. That's all this is, is bottom line here. This defendant and John Lotter set out to kill Teena Brandon, and they accomplished that mission. And that's first degree murder, and they're guilty. The defendant is guilty. And I ask you to so find. Thank you very much.
Note: Tom Nissen was convicted and is serving a life sentence for the first degree murder of Brandon Teena and the second-degree murders of Lisa Lambert and Phillip DeVine. He escaped the death penalty by giving evidence against his partner John Lotter, who was also convicted and at time of writing is on death row.