These combined
cases dealt with homicides which were the result of two drug dealers
killing of “middle men” in their drug operations. The
alleged errors dealt with Batson challenges, the use of inmate’s
testimony, other evidentiary objections, jury instructions, and
the bevy of assignment of error which were the result of such a
complex trial.
State
v. Gutierrez, 272 Neb. 995 (2007)
Supreme
Court Headnotes
Equal Protection:
- [Jurors:]
(Discrimination.) The Equal Protection Clause of the 14th Amendment
forbids prosecutors from using peremptory challenges to strike potential
jurors solely on account of their race.
Juries:
- [Discrimination:]
(Prosecuting Attorneys: Proof.) The evaluation of whether a
party has used peremptory challenges in a racially discriminatory
manner is a three-step process. First, the trial court must determine
whether the defendant has made a prima facie showing that the prosecutor
has exercised peremptory challenges on the basis of race. A defendant
satisfies the requirements of this step by producing evidence sufficient
to permit the trial judge to draw an inference that discrimination
has occurred. Second, if the requisite showing has been made, the
burden shifts to the prosecutor to present a race-neutral explanation
for striking the juror in question. Although the prosecutor must
present a comprehensible reason, the second step of this process
does not demand an explanation that is persuasive, or even plausible;
so long as the reason is not inherently discriminatory, it suffices.
Third, the trial court must then determine whether the defendant
has carried his or her burden of proving purposeful discrimination.
The final step involves evaluating the persuasiveness of the justification
proffered by the prosecutor, but the ultimate burden of persuasion
regarding racial motivation rests with, and never shifts from, the
opponent of the strike.
Pretrial
Procedure:
- [Witnesses:]
(Intent.) The intent of Neb. Rev. Stat. § 29-1929 (Cum.
Supp. 2006) is to ensure that criminal defendants have the opportunity
to prepare to meaningfully confront the testimony of a jailhouse
informer at trial and challenge the witness' credibility.
- [Appeal
and Error.] Trial courts have broad discretion with respect
to sanctions involving discovery procedures, and their rulings thereon
will not be reversed in the absence of an abuse of discretion. •••
A trial court's decision with respect to Neb. Rev. Stat. §
29-1929 (Cum. Supp. 2006) will not be reversed in the absence of
an abuse of discretion.
- [Evidence:]
Pursuant to Neb. Rev. Stat. § 29-1912 (Reissue 1995), upon
a defendant's proper request through discovery procedure, the State
must disclose information which is material to the preparation of
a defense to the charge against the defendant. In order that the
defendant receive a fair trial, requested and material information
must be disclosed to the defendant. (Prosecuting Attorneys.)
Whether a prosecutor's late disclosure of evidence results in prejudice
depends on whether the information sought is material to the preparation
of the defense, meaning that there is a strong indication that such
information will play an important role in uncovering admissible
evidence, aiding preparation of witnesses, corroborating testimony,
or assisting impeachment or rebuttal.
Motions for
Continuance:
- [Evidence.]
When a continuance will cure the prejudice caused by belated disclosure
of evidence, a continuance should be requested by counsel and granted
by the trial court.
Trial:
- [Evidence:]
Only evidence tending to suggest a decision on an improper basis
is unfairly prejudicial. (Appeal and Error.) The admission
of demonstrative evidence is within the discretion of the trial
court, and a judgment will not be reversed on account of the admission
or rejection of such evidence unless there has been a clear abuse
of discretion. (Testimony: Proof.) Demonstrative exhibits
are admissible if they supplement a witness' spoken description
of the transpired event, clarify some issue in the case, and are
more probative than prejudicial. ••• Demonstrative
exhibits are inadmissible when they do not illustrate or make clearer
some issue in the case; that is, where they are irrelevant or where
the exhibit's character is such that its probative value is substantially
outweighed by the danger of unfair prejudice. •••
Unless an objection to offered evidence is sufficiently specific
to enlighten the trial court and enable it to pass upon the sufficiency
of such objection and to observe the alleged harmful bearing of
the evidence from the standpoint of the objector, no question can
be presented therefrom on appeal. ••• An appellate
court reviews the trial court's conclusions with regard to evidentiary
foundation and witness qualification for an abuse of discretion.
(Juries: Appeal and Error.) Evidentiary error is harmless
when improper admission of evidence did not materially influence
the jury to reach a verdict adverse to substantial rights of the
defendant.
- [Waiver:]
(Appeal and Error.) The failure to make a timely objection waives
the right to assert prejudicial error on appeal.
- [Expert
Witnesses.] When an opinion involves scientific or specialized
knowledge, this court will apply the principles of Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct.
2786, 125 L. Ed. 2d 469 (1993). ••• Under the Daubert
v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct.
2786, 125 L. Ed. 2d 469 (1993), and Schafersman v. Agland Coop,
262 Neb. 215, 631 N.W.2d 862 (2001), jurisprudence, the trial court
acts as a gatekeeper to ensure the evidentiary relevance and reliability
of an expert's opinion. This gatekeeping function entails a preliminary
assessment whether the reasoning or methodology underlying the testimony
is valid and whether that reasoning or methodology properly can
be applied to the facts in issue.
Rules of
Evidence:
- [Appeal
and Error.] In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by the Nebraska
Evidence Rules; judicial discretion is involved only when the rules
make discretion a factor in determining admissibility. •••
The exercise of judicial discretion is implicit in determinations
of relevancy under Neb. Evid. R. 401, Neb. Rev. Stat. § 27-401
(Reissue 1995), and prejudice under Neb. Evid. R. 403, Neb. Rev.
Stat. § 27-403 (Reissue 1995), and a trial court's decision
regarding them will not be reversed absent an abuse of discretion.
- [Expert
Witnesses.] An expert's opinion is ordinarily admissible under
Neb. Evid. R. 702, Neb. Rev. Stat. § 27-702 (Reissue 1995),
if the witness (1) qualifies as an expert, (2) has an opinion that
will assist the trier of fact, (3) states his or her opinion, and
(4) is prepared to disclose the basis of that opinion on cross-examination.
Conspiracy:
- [Rules
of Evidence.] To be admissible under Neb. Evid. R. 801(4)(b)(v),
Neb. Rev. Stat. § 27-801(4)(b)(v) (Reissue 1995), the statements
of a coconspirator must have been made while the conspiracy was
pending and in furtherance of its objects. If the statements took
place after the conspiracy had ended, or if merely narrative of
past events, they are not admissible. ••• For an
out-of-court statement to be admissible under Neb. Evid. R. 801(4)(b)(v),
Neb. Rev. Stat. § 27-801(4)(b)(v) (Reissue 1995), there must
be evidence that there was a conspiracy involving the declarant
and the nonoffering party and that the statement was made during
the course and in furtherance of the conspiracy. •••
Neb. Evid. R. 801(4)(b)(v), Neb. Rev. Stat. § 27-801(4)(b)(v)
(Reissue 1995), is irrelevant to the direct testimony of a coconspirator.
••• Statements made by a coconspirator in furtherance
of avoiding capture or punishment are made in furtherance of the
conspiracy within the meaning of Neb. Evid. R. 801(4)(b)(v), Neb.
Rev. Stat. § 27-801(4)(b)(v) (Reissue 1995). •••
A coconspirator's idle chatter or casual conversation about past
events is generally not considered to be in furtherance of the conspiracy
for purposes of Neb. Evid. R. 801(4)(b)(v), Neb. Rev. Stat. §
27-801(4)(b)(v) (Reissue 1995). ((Words and Phrases.)) The
"in furtherance" language of Neb. Evid. R. 801(4)(b)(v),
Neb. Rev. Stat. § 27-801(4)(b)(v) (Reissue 1995), is to be
construed broadly.
- [Hearsay:]
(Evidence.) Before the trier of fact may consider testimony
under the coconspirator exception to the hearsay rule, a prima facie
case establishing the existence of the conspiracy must be shown
by independent evidence.
Verdicts:
- [Juries:]
(Appeal and Error.) Harmless error review looks to the basis
on which the jury actually rested its verdict; the inquiry is not
whether in a trial that occurred without the error a guilty verdict
would surely have been rendered, but, rather, whether the actual
guilty verdict rendered in the questioned trial was surely unattributable
to the error.
Jury Instructions:
- If it becomes
necessary to give further instructions to the jury during deliberation,
the proper practice is to call the jury into open court and to give
any additional instructions in writing in the presence of the parties
or their counsel.
- [Proof:]
(Appeal and Error.) In an appeal based on a claim of an erroneous
jury instruction, the appellant has the burden to show that the
questioned instruction was prejudicial or otherwise adversely affected
a substantial right of the appellant.
- [Appeal
and Error.] Whether a jury instruction is correct is a question
of law, regarding which an appellate court is obligated to reach
a conclusion independent of the determination reached by the trial
court. ••• All the jury instructions must be read
together, and if, taken as a whole, they correctly state the law,
are not misleading, and adequately cover the issues supported by
the pleadings and the evidence, there is no prejudicial error necessitating
reversal.
Courts:
- [Juries.]
The decision whether to reply to questions from the jury regarding
the applicable law is entrusted to the discretion of the trial court.
Motions for
Mistrial:
- [Appeal
and Error.] The decision whether to grant a motion for mistrial
is within the discretion of the trial court and will not be disturbed
on appeal in the absence of an abuse of discretion.
- [Prosecuting
Attorneys:] (Proof.) Before it is necessary to grant a mistrial
for prosecutorial misconduct, the defendant must show that a substantial
miscarriage of justice has actually occurred.
Criminal
Law:
- [Convictions:]
(Evidence: Appeal and Error.) In reviewing a criminal conviction,
an appellate court does not resolve conflicts in the evidence, pass
on the credibility of witnesses, or reweigh the evidence. Such matters
are for the finder of fact, and a conviction will be affirmed, in
the absence of prejudicial error, if the properly admitted evidence,
viewed and construed most favorably to the State, is sufficient
to support the conviction. ••• When reviewing a criminal
conviction for sufficiency of the evidence to sustain the conviction,
the relevant question for an appellate court is whether, after viewing
the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.
- [Directed
Verdict.] In a criminal case, a court can direct a verdict only
when there is a complete failure of evidence to establish an essential
element of the crime charged or the evidence is so doubtful in character,
lacking probative value, that a finding of guilt based on such evidence
cannot be sustained.
Date Filed
and Case No.: January 26, 2007. Nos. S-05-979, S-05-980.
Court Appealed
From: District Court for Douglas County: Gerald E. Moran, Judge.
Attorneys
for the Appeal: Michael P. Meckna and Jill A. Daley for Jesse
M. Gutierrez, appellant. Jerry M. Hug and Alan G. Stoler for Adam
P. Sommer, appellant. Jon Bruning and James D. Smith for State of
Nebraska, appellee.
Justices:
Wright, Connolly, Gerrard, Stephan, McCormack, and Miller-Lerman,
JJ., and Hannon, Judge, Retired.
Not Participating:
Heavican, C.J.
Authored
By: Gerrard, J.
Summary:
In separate informations filed 10/01/04, Jesse M. Gutierrez and
Adam P. Sommer (collectively the defendants) were each charged with
two counts of first degree murder, one count of attempted first
degree murder, and three counts of use of a deadly weapon to commit
a felony. All charges were in connection with the killings of Daniel
Lopez and Maria Ojeda and the attempted killing of Marcos Lucero.
In what seemed to be a business maneuver to eliminate the middle
man, the State's theory of the cases was that Lucero, Lucero's nephew
Gutierrez, and Gutierrez' friend Sommer had been involved in the
transportation and distribution of marijuana. Lucero, who lived
in Arizona, obtained marijuana from Mexico through his connections
there and transported it to Nebraska for sale. The State theorized
that Gutierrez and Sommer tried to kill Lucero so they could stay
in business by dealing with Lucero's connections directly. The cases
were consolidated for jury trial, and the jury returned verdicts
of guilty on all charges. Both of the defendants were sentenced
to consecutive terms of life imprisonment for the first degree murder
convictions and consecutive terms of 50 to 50 years' imprisonment
for each of the remaining convictions. Both of the defendants appealed
to the Nebraska Supreme Court. Because the cases were tried together
and the defendants' appellate arguments were substantially the same,
the Court considered these appeals together.
Both of the
defendants assigned that the district court erred in (1) overruling
their Batson objections to the removal of a juror for what
they said was for racial reasons; (2) denying their motions to exclude
a witness’ testimony, whose testimony arose from the witness’
being in custody, because of the State's alleged failure to comply
with the notice requirements applicable to jailhouse informers;
(3) permitting a chart as a demonstrative exhibit; (4) overruling
their objections to the admission, as coconspirator statements,
of purported hearsay; and (5) issuing supplemental instructions
to the jury. Separately, Gutierrez assigned that the court erred
in (6) denying his request for a continuance and motion for mistrial
based on incomplete discovery. Sommer assigned that the court erred
in (7) overruling his relevance and Daubert objections to
the admission of cellular telephone records. Finally, both of the
defendants assigned that the court erred in (8) finding the evidence
to be sufficient to support the verdicts and (9) committing cumulative
error.
Regarding
(1): The Court found that the record in these cases did not
permit it to consider a racial context for the State's peremptory
strikes, because the defendants' perfunctory Batson challenge
established little more than that a single Hispanic member of the
venire had been removed. Therefore, the record in these cases did
not demonstrate that the court clearly erred in determining that
the defendants failed to carry their burden of proving purposeful
discrimination.
Regarding
(2): Christopher Haukaas, who was in the Douglas County Correctional
Center provided information about the shooting to authorities. Haukaas
testified that he was a friend of Sommer and had become involved
in selling marijuana with him. Sommer introduced Haukaas to Gutierrez
and Haukaas said that during their conversation, Gutierrez made
references to having Lucero "taken out" so that Gutierrez
could take over his business. Both of the defendants joined in a
motion to exclude Haukaas' testimony, pursuant to Neb. Rev. Stat.
§ 29-1929 (Cum. Supp. 2006). The defense took the position
that Haukaas was a "jailhouse informer" within the meaning
of the statute and that the State had not met the 10-day statutory
notice requirement.
The Court held
that a trial court's decision with respect to § 29-1929 will
not be reversed in the absence of an abuse of discretion, The Court
ruled that here the district court did not abuse its discretion,
because the State timely notified the defendants that the witness
would testify pursuant to a plea agreement and Gutierrez was actually
notified, more than 10 days before trial, of the terms of the plea
agreement.
Regarding
(3): During its opening statement, the State displayed a demonstrative
exhibit--a chart depicting the relationships among many of the people
involved in the cases, including personal and business relationships.
No objection was made to the chart during the opening. At trial,
the jurors asked the court if the chart could be left up for their
reference during the trial. The defendants objected (foundation,
unfairly prejudicial, distracting to the jury) and the trial court
overruled the objections. The Court found no error in that the district
court specifically instructed the jury that the chart was not an
exhibit in the cases, and the chart was not sent to the jury room
for deliberation. The Court said it’s review of the record
found “clear support for all of the information depicted on
the chart. In fact, our analysis of the evidence in these cases
was helped by our own reference to the chart during our review of
the record.”
Regarding
(4): Both of the defendants also objected to Haukaas' testimony
on the basis of hearsay, arguing that Haukaas' testimony as to statements
made by Sommer and Gutierrez was not admissible as coconspirator
testimony because the existence of a conspiracy had not been proved
before Haukaas testified. The trial court overruled the objections,
indicating that it would determine, as the evidence was adduced,
whether there was evidence of a conspiracy. The Court said defendants'
argument was based on the mistaken premise that evidence of a conspiracy
was necessary before any of Haukaas' testimony was admissible.
“In fact, rule 801(4)(b)(v) governs only the admissibility
of testimony about out-of-court statements made by a coconspirator--not
the admissibility of all the other testimony offered by the same
witness. Rule 801(4)(b)(v) is simply irrelevant to the direct testimony
of a coconspirator. (Citations omitted.) There is no reason why
a witness cannot testify to the existence of a conspiracy, and that
the defendant was a participant, and then testify to out-of-court
statements made by the alleged coconspirators.”
Of the two statements
at which Sommer's argument was directed was a statement that Haukaas
testified Gutierrez made to him, after they were both in jail. “As
for Gutierrez' alleged statement to Haukaas in jail, it does not
implicate Sommer in any way, and its admission as to Sommer was
at worst harmless error.” Based on a thorough review of the
record, the Court concluded that Sommer's conviction was unattributable
to the error. “In the absence of a request for a limiting instruction,
or any prejudice to Sommer from the admission of the statement,
we find no reversible error in the district court's decision to
permit the testimony.” They rejected the defendants' assignments
of error with respect to coconspirator statements.
Regarding
(5): The day after the cases were submitted to the jury, the
jury asked the court to define "abets and procures." The
court held a telephonic conference with counsel, and gave a proposed
instruction to the jury as follows. The State agreed, but the defendants
objected. Gutierrez argued, first, that the district court erred
in issuing instructions to the jury neither in open court nor in
the presence of the parties and counsel. However, counsel in this
case was informed by telephonic hearing of each of the jury's questions,
and while they objected to the instructions, they did not object
to the procedure, which the Court found was a failure to make a
timely objection and waived the right to assert prejudicial error
on appeal. Furthermore, Gutierrez had not shown how he was prejudiced
by the court's procedure.
Sommer argued
that the second supplemental instruction, on transferred intent,
was prejudicial. “In the absence of the other instructions,
since the supplemental instruction standing alone is a correct statement
of law and is pertinent to the issues presented in the case, we
conclude that Sommer has failed to demonstrate that he was prejudiced
by the court's supplemental instruction” said the Court. As
neither of the defendants had shown how he was prejudiced by the
court's supplemental instructions, either in substance or in the
procedure by which the supplemental instructions were given the
Court found no merit in the defendants' assignments of error.
Regarding
(6): Gutierrez claimed that the district court erred in overruling
his request for a continuance and motion for mistrial based on allegedly
omitted police reports. As Gutierrez' counsel was given the time
he said he would need to review some material and was given additional
time to review the remaining material, the issue on appeal was really
whether a mistrial was warranted. The Court assumed without deciding,
for purposes of this analysis, that the State was under a duty to
provide Gutierrez with the disputed reports and that those reports
were not actually provided to Gutierrez. Before it is necessary
to grant a mistrial for prosecutorial misconduct, the defendant
must show that a substantial miscarriage of justice has actually
occurred. Gutierrez has not explained, in this case, why the continuance
that was granted was insufficient to cure any prejudice resulting
from the allegedly belated disclosures. Gutierrez did not specifically
identify any facts contained in the police reports that were pertinent
to the case but unknown to him, nor did he explain what he might
have found, given additional time, that would have been material.
“In short,” said the Court “Gutierrez has not explained
how the continuance that he was afforded was insufficient to allow
him to prepare to resume trial. The fact that no prejudice has been
explained lends support to our determination that the district court
did not abuse its discretion in denying Gutierrez' motion for mistrial.”
Regarding
(7): Before the State adduced testimony relating to the use
of cellular telephones, the defendants objected and requested a
Daubert hearing on the admissibility of that evidence. Both
of the defendants later objected to the admission of telephone records
from Sprint Telecommunications, on the basis of relevance. Generally,
the defendants argued that because there was cell tower location
information contained in the records, the jury might infer that
particular telephone calls were made from particular areas. The
district court overruled the objection. The Court concluded that
Daubert was not pertinent to the records objected to as the
telephone records to which Sommer objected did not represent expert
opinion testimony. The testimony presented by the telephone company
employee through whom the records were admitted was not opinion
testimony, but instead foundational testimony explaining the data
in the records. “Any question about the foundation for the
cellular location data contained in the records would properly have
been framed under the business records exception to the hearsay
rule, not Daubert. See, id.; Neb. Evid. R. 803(5), Neb. Rev. Stat.
§ 27-803(5) (Cum. Supp. 2006)” said the Court. Discussing
some of the other errors in this evidence in the opinion the Court
concluded that the trial court did not abuse its discretion in permitting
the Sprint Telecommunications telephone records into evidence. “Sommer's
assignment of error is without merit.”
In regards
to (8): Both of the defendants question the sufficiency of the
evidence to support their convictions. Challenging the credibility
of the State's witnesses and the quality of the police investigation
of the crime, the defendants contendeded that their witnesses were
more credible. “While there was conflicting testimony in this
lengthy trial,” wrote the Court “the evidence was certainly
sufficient to support the jury's determination that the defendants
were guilty of the crimes charged.”
And finally,
in regards to (9): Both of the defendants contended that the
cumulative effect of the other errors they assigned deprived them
of a fair trial. Having rejected each of the defendants' assignments
of error the Court also concluded that the defendants were not denied
a fair trial, and rejected the defendants' final assignments of
error. AFFIRMED.
These combined
cases dealt with homicides which were the result of two drug dealers
killing of “middle men” in their drug operations. The
alleged errors dealt with Batson challenges, the use of inmate’s
testimony, other evidentiary objections, jury instructions, and
the bevy of assignment of error which were the result of such a
complex trial.
State
v. Gutierrez, 272 Neb. 995 (2007)
Supreme
Court Headnotes
Equal Protection:
- [Jurors:]
(Discrimination.) The Equal Protection Clause of the 14th Amendment
forbids prosecutors from using peremptory challenges to strike potential
jurors solely on account of their race.
Juries:
- [Discrimination:]
(Prosecuting Attorneys: Proof.) The evaluation of whether a
party has used peremptory challenges in a racially discriminatory
manner is a three-step process. First, the trial court must determine
whether the defendant has made a prima facie showing that the prosecutor
has exercised peremptory challenges on the basis of race. A defendant
satisfies the requirements of this step by producing evidence sufficient
to permit the trial judge to draw an inference that discrimination
has occurred. Second, if the requisite showing has been made, the
burden shifts to the prosecutor to present a race-neutral explanation
for striking the juror in question. Although the prosecutor must
present a comprehensible reason, the second step of this process
does not demand an explanation that is persuasive, or even plausible;
so long as the reason is not inherently discriminatory, it suffices.
Third, the trial court must then determine whether the defendant
has carried his or her burden of proving purposeful discrimination.
The final step involves evaluating the persuasiveness of the justification
proffered by the prosecutor, but the ultimate burden of persuasion
regarding racial motivation rests with, and never shifts from, the
opponent of the strike.
Pretrial
Procedure:
- [Witnesses:]
(Intent.) The intent of Neb. Rev. Stat. § 29-1929 (Cum.
Supp. 2006) is to ensure that criminal defendants have the opportunity
to prepare to meaningfully confront the testimony of a jailhouse
informer at trial and challenge the witness' credibility.
- [Appeal
and Error.] Trial courts have broad discretion with respect
to sanctions involving discovery procedures, and their rulings thereon
will not be reversed in the absence of an abuse of discretion. •••
A trial court's decision with respect to Neb. Rev. Stat. §
29-1929 (Cum. Supp. 2006) will not be reversed in the absence of
an abuse of discretion.
- [Evidence:]
Pursuant to Neb. Rev. Stat. § 29-1912 (Reissue 1995), upon
a defendant's proper request through discovery procedure, the State
must disclose information which is material to the preparation of
a defense to the charge against the defendant. In order that the
defendant receive a fair trial, requested and material information
must be disclosed to the defendant. (Prosecuting Attorneys.)
Whether a prosecutor's late disclosure of evidence results in prejudice
depends on whether the information sought is material to the preparation
of the defense, meaning that there is a strong indication that such
information will play an important role in uncovering admissible
evidence, aiding preparation of witnesses, corroborating testimony,
or assisting impeachment or rebuttal.
Motions for
Continuance:
- [Evidence.]
When a continuance will cure the prejudice caused by belated disclosure
of evidence, a continuance should be requested by counsel and granted
by the trial court.
Trial:
- [Evidence:]
Only evidence tending to suggest a decision on an improper basis
is unfairly prejudicial. (Appeal and Error.) The admission
of demonstrative evidence is within the discretion of the trial
court, and a judgment will not be reversed on account of the admission
or rejection of such evidence unless there has been a clear abuse
of discretion. (Testimony: Proof.) Demonstrative exhibits
are admissible if they supplement a witness' spoken description
of the transpired event, clarify some issue in the case, and are
more probative than prejudicial. ••• Demonstrative
exhibits are inadmissible when they do not illustrate or make clearer
some issue in the case; that is, where they are irrelevant or where
the exhibit's character is such that its probative value is substantially
outweighed by the danger of unfair prejudice. •••
Unless an objection to offered evidence is sufficiently specific
to enlighten the trial court and enable it to pass upon the sufficiency
of such objection and to observe the alleged harmful bearing of
the evidence from the standpoint of the objector, no question can
be presented therefrom on appeal. ••• An appellate
court reviews the trial court's conclusions with regard to evidentiary
foundation and witness qualification for an abuse of discretion.
(Juries: Appeal and Error.) Evidentiary error is harmless
when improper admission of evidence did not materially influence
the jury to reach a verdict adverse to substantial rights of the
defendant.
- [Waiver:]
(Appeal and Error.) The failure to make a timely objection waives
the right to assert prejudicial error on appeal.
- [Expert
Witnesses.] When an opinion involves scientific or specialized
knowledge, this court will apply the principles of Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct.
2786, 125 L. Ed. 2d 469 (1993). ••• Under the Daubert
v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct.
2786, 125 L. Ed. 2d 469 (1993), and Schafersman v. Agland Coop,
262 Neb. 215, 631 N.W.2d 862 (2001), jurisprudence, the trial court
acts as a gatekeeper to ensure the evidentiary relevance and reliability
of an expert's opinion. This gatekeeping function entails a preliminary
assessment whether the reasoning or methodology underlying the testimony
is valid and whether that reasoning or methodology properly can
be applied to the facts in issue.
Rules of
Evidence:
- [Appeal
and Error.] In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by the Nebraska
Evidence Rules; judicial discretion is involved only when the rules
make discretion a factor in determining admissibility. •••
The exercise of judicial discretion is implicit in determinations
of relevancy under Neb. Evid. R. 401, Neb. Rev. Stat. § 27-401
(Reissue 1995), and prejudice under Neb. Evid. R. 403, Neb. Rev.
Stat. § 27-403 (Reissue 1995), and a trial court's decision
regarding them will not be reversed absent an abuse of discretion.
- [Expert
Witnesses.] An expert's opinion is ordinarily admissible under
Neb. Evid. R. 702, Neb. Rev. Stat. § 27-702 (Reissue 1995),
if the witness (1) qualifies as an expert, (2) has an opinion that
will assist the trier of fact, (3) states his or her opinion, and
(4) is prepared to disclose the basis of that opinion on cross-examination.
Conspiracy:
- [Rules
of Evidence.] To be admissible under Neb. Evid. R. 801(4)(b)(v),
Neb. Rev. Stat. § 27-801(4)(b)(v) (Reissue 1995), the statements
of a coconspirator must have been made while the conspiracy was
pending and in furtherance of its objects. If the statements took
place after the conspiracy had ended, or if merely narrative of
past events, they are not admissible. ••• For an
out-of-court statement to be admissible under Neb. Evid. R. 801(4)(b)(v),
Neb. Rev. Stat. § 27-801(4)(b)(v) (Reissue 1995), there must
be evidence that there was a conspiracy involving the declarant
and the nonoffering party and that the statement was made during
the course and in furtherance of the conspiracy. •••
Neb. Evid. R. 801(4)(b)(v), Neb. Rev. Stat. § 27-801(4)(b)(v)
(Reissue 1995), is irrelevant to the direct testimony of a coconspirator.
••• Statements made by a coconspirator in furtherance
of avoiding capture or punishment are made in furtherance of the
conspiracy within the meaning of Neb. Evid. R. 801(4)(b)(v), Neb.
Rev. Stat. § 27-801(4)(b)(v) (Reissue 1995). •••
A coconspirator's idle chatter or casual conversation about past
events is generally not considered to be in furtherance of the conspiracy
for purposes of Neb. Evid. R. 801(4)(b)(v), Neb. Rev. Stat. §
27-801(4)(b)(v) (Reissue 1995). ((Words and Phrases.)) The
"in furtherance" language of Neb. Evid. R. 801(4)(b)(v),
Neb. Rev. Stat. § 27-801(4)(b)(v) (Reissue 1995), is to be
construed broadly.
- [Hearsay:]
(Evidence.) Before the trier of fact may consider testimony
under the coconspirator exception to the hearsay rule, a prima facie
case establishing the existence of the conspiracy must be shown
by independent evidence.
Verdicts:
- [Juries:]
(Appeal and Error.) Harmless error review looks to the basis
on which the jury actually rested its verdict; the inquiry is not
whether in a trial that occurred without the error a guilty verdict
would surely have been rendered, but, rather, whether the actual
guilty verdict rendered in the questioned trial was surely unattributable
to the error.
Jury Instructions:
- If it becomes
necessary to give further instructions to the jury during deliberation,
the proper practice is to call the jury into open court and to give
any additional instructions in writing in the presence of the parties
or their counsel.
- [Proof:]
(Appeal and Error.) In an appeal based on a claim of an erroneous
jury instruction, the appellant has the burden to show that the
questioned instruction was prejudicial or otherwise adversely affected
a substantial right of the appellant.
- [Appeal
and Error.] Whether a jury instruction is correct is a question
of law, regarding which an appellate court is obligated to reach
a conclusion independent of the determination reached by the trial
court. ••• All the jury instructions must be read
together, and if, taken as a whole, they correctly state the law,
are not misleading, and adequately cover the issues supported by
the pleadings and the evidence, there is no prejudicial error necessitating
reversal.
Courts:
- [Juries.]
The decision whether to reply to questions from the jury regarding
the applicable law is entrusted to the discretion of the trial court.
Motions for
Mistrial:
- [Appeal
and Error.] The decision whether to grant a motion for mistrial
is within the discretion of the trial court and will not be disturbed
on appeal in the absence of an abuse of discretion.
- [Prosecuting
Attorneys:] (Proof.) Before it is necessary to grant a mistrial
for prosecutorial misconduct, the defendant must show that a substantial
miscarriage of justice has actually occurred.
Criminal
Law:
- [Convictions:]
(Evidence: Appeal and Error.) In reviewing a criminal conviction,
an appellate court does not resolve conflicts in the evidence, pass
on the credibility of witnesses, or reweigh the evidence. Such matters
are for the finder of fact, and a conviction will be affirmed, in
the absence of prejudicial error, if the properly admitted evidence,
viewed and construed most favorably to the State, is sufficient
to support the conviction. ••• When reviewing a criminal
conviction for sufficiency of the evidence to sustain the conviction,
the relevant question for an appellate court is whether, after viewing
the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.
- [Directed
Verdict.] In a criminal case, a court can direct a verdict only
when there is a complete failure of evidence to establish an essential
element of the crime charged or the evidence is so doubtful in character,
lacking probative value, that a finding of guilt based on such evidence
cannot be sustained.
Date Filed
and Case No.: January 26, 2007. Nos. S-05-979, S-05-980.
Court Appealed
From: District Court for Douglas County: Gerald E. Moran, Judge.
Attorneys
for the Appeal: Michael P. Meckna and Jill A. Daley for Jesse
M. Gutierrez, appellant. Jerry M. Hug and Alan G. Stoler for Adam
P. Sommer, appellant. Jon Bruning and James D. Smith for State of
Nebraska, appellee.
Justices:
Wright, Connolly, Gerrard, Stephan, McCormack, and Miller-Lerman,
JJ., and Hannon, Judge, Retired.
Not Participating:
Heavican, C.J.
Authored
By: Gerrard, J.
Summary:
In separate informations filed 10/01/04, Jesse M. Gutierrez and
Adam P. Sommer (collectively the defendants) were each charged with
two counts of first degree murder, one count of attempted first
degree murder, and three counts of use of a deadly weapon to commit
a felony. All charges were in connection with the killings of Daniel
Lopez and Maria Ojeda and the attempted killing of Marcos Lucero.
In what seemed to be a business maneuver to eliminate the middle
man, the State's theory of the cases was that Lucero, Lucero's nephew
Gutierrez, and Gutierrez' friend Sommer had been involved in the
transportation and distribution of marijuana. Lucero, who lived
in Arizona, obtained marijuana from Mexico through his connections
there and transported it to Nebraska for sale. The State theorized
that Gutierrez and Sommer tried to kill Lucero so they could stay
in business by dealing with Lucero's connections directly. The cases
were consolidated for jury trial, and the jury returned verdicts
of guilty on all charges. Both of the defendants were sentenced
to consecutive terms of life imprisonment for the first degree murder
convictions and consecutive terms of 50 to 50 years' imprisonment
for each of the remaining convictions. Both of the defendants appealed
to the Nebraska Supreme Court. Because the cases were tried together
and the defendants' appellate arguments were substantially the same,
the Court considered these appeals together.
Both of the
defendants assigned that the district court erred in (1) overruling
their Batson objections to the removal of a juror for what
they said was for racial reasons; (2) denying their motions to exclude
a witness’ testimony, whose testimony arose from the witness’
being in custody, because of the State's alleged failure to comply
with the notice requirements applicable to jailhouse informers;
(3) permitting a chart as a demonstrative exhibit; (4) overruling
their objections to the admission, as coconspirator statements,
of purported hearsay; and (5) issuing supplemental instructions
to the jury. Separately, Gutierrez assigned that the court erred
in (6) denying his request for a continuance and motion for mistrial
based on incomplete discovery. Sommer assigned that the court erred
in (7) overruling his relevance and Daubert objections to
the admission of cellular telephone records. Finally, both of the
defendants assigned that the court erred in (8) finding the evidence
to be sufficient to support the verdicts and (9) committing cumulative
error.
Regarding
(1): The Court found that the record in these cases did not
permit it to consider a racial context for the State's peremptory
strikes, because the defendants' perfunctory Batson challenge
established little more than that a single Hispanic member of the
venire had been removed. Therefore, the record in these cases did
not demonstrate that the court clearly erred in determining that
the defendants failed to carry their burden of proving purposeful
discrimination.
Regarding
(2): Christopher Haukaas, who was in the Douglas County Correctional
Center provided information about the shooting to authorities. Haukaas
testified that he was a friend of Sommer and had become involved
in selling marijuana with him. Sommer introduced Haukaas to Gutierrez
and Haukaas said that during their conversation, Gutierrez made
references to having Lucero "taken out" so that Gutierrez
could take over his business. Both of the defendants joined in a
motion to exclude Haukaas' testimony, pursuant to Neb. Rev. Stat.
§ 29-1929 (Cum. Supp. 2006). The defense took the position
that Haukaas was a "jailhouse informer" within the meaning
of the statute and that the State had not met the 10-day statutory
notice requirement.
The Court held
that a trial court's decision with respect to § 29-1929 will
not be reversed in the absence of an abuse of discretion, The Court
ruled that here the district court did not abuse its discretion,
because the State timely notified the defendants that the witness
would testify pursuant to a plea agreement and Gutierrez was actually
notified, more than 10 days before trial, of the terms of the plea
agreement.
Regarding
(3): During its opening statement, the State displayed a demonstrative
exhibit--a chart depicting the relationships among many of the people
involved in the cases, including personal and business relationships.
No objection was made to the chart during the opening. At trial,
the jurors asked the court if the chart could be left up for their
reference during the trial. The defendants objected (foundation,
unfairly prejudicial, distracting to the jury) and the trial court
overruled the objections. The Court found no error in that the district
court specifically instructed the jury that the chart was not an
exhibit in the cases, and the chart was not sent to the jury room
for deliberation. The Court said it’s review of the record
found “clear support for all of the information depicted on
the chart. In fact, our analysis of the evidence in these cases
was helped by our own reference to the chart during our review of
the record.”
Regarding
(4): Both of the defendants also objected to Haukaas' testimony
on the basis of hearsay, arguing that Haukaas' testimony as to statements
made by Sommer and Gutierrez was not admissible as coconspirator
testimony because the existence of a conspiracy had not been proved
before Haukaas testified. The trial court overruled the objections,
indicating that it would determine, as the evidence was adduced,
whether there was evidence of a conspiracy. The Court said defendants'
argument was based on the mistaken premise that evidence of a conspiracy
was necessary before any of Haukaas' testimony was admissible.
“In fact, rule 801(4)(b)(v) governs only the admissibility
of testimony about out-of-court statements made by a coconspirator--not
the admissibility of all the other testimony offered by the same
witness. Rule 801(4)(b)(v) is simply irrelevant to the direct testimony
of a coconspirator. (Citations omitted.) There is no reason why
a witness cannot testify to the existence of a conspiracy, and that
the defendant was a participant, and then testify to out-of-court
statements made by the alleged coconspirators.”
Of the two statements
at which Sommer's argument was directed was a statement that Haukaas
testified Gutierrez made to him, after they were both in jail. “As
for Gutierrez' alleged statement to Haukaas in jail, it does not
implicate Sommer in any way, and its admission as to Sommer was
at worst harmless error.” Based on a thorough review of the
record, the Court concluded that Sommer's conviction was unattributable
to the error. “In the absence of a request for a limiting instruction,
or any prejudice to Sommer from the admission of the statement,
we find no reversible error in the district court's decision to
permit the testimony.” They rejected the defendants' assignments
of error with respect to coconspirator statements.
Regarding
(5): The day after the cases were submitted to the jury, the
jury asked the court to define "abets and procures." The
court held a telephonic conference with counsel, and gave a proposed
instruction to the jury as follows. The State agreed, but the defendants
objected. Gutierrez argued, first, that the district court erred
in issuing instructions to the jury neither in open court nor in
the presence of the parties and counsel. However, counsel in this
case was informed by telephonic hearing of each of the jury's questions,
and while they objected to the instructions, they did not object
to the procedure, which the Court found was a failure to make a
timely objection and waived the right to assert prejudicial error
on appeal. Furthermore, Gutierrez had not shown how he was prejudiced
by the court's procedure.
Sommer argued
that the second supplemental instruction, on transferred intent,
was prejudicial. “In the absence of the other instructions,
since the supplemental instruction standing alone is a correct statement
of law and is pertinent to the issues presented in the case, we
conclude that Sommer has failed to demonstrate that he was prejudiced
by the court's supplemental instruction” said the Court. As
neither of the defendants had shown how he was prejudiced by the
court's supplemental instructions, either in substance or in the
procedure by which the supplemental instructions were given the
Court found no merit in the defendants' assignments of error.
Regarding
(6): Gutierrez claimed that the district court erred in overruling
his request for a continuance and motion for mistrial based on allegedly
omitted police reports. As Gutierrez' counsel was given the time
he said he would need to review some material and was given additional
time to review the remaining material, the issue on appeal was really
whether a mistrial was warranted. The Court assumed without deciding,
for purposes of this analysis, that the State was under a duty to
provide Gutierrez with the disputed reports and that those reports
were not actually provided to Gutierrez. Before it is necessary
to grant a mistrial for prosecutorial misconduct, the defendant
must show that a substantial miscarriage of justice has actually
occurred. Gutierrez has not explained, in this case, why the continuance
that was granted was insufficient to cure any prejudice resulting
from the allegedly belated disclosures. Gutierrez did not specifically
identify any facts contained in the police reports that were pertinent
to the case but unknown to him, nor did he explain what he might
have found, given additional time, that would have been material.
“In short,” said the Court “Gutierrez has not explained
how the continuance that he was afforded was insufficient to allow
him to prepare to resume trial. The fact that no prejudice has been
explained lends support to our determination that the district court
did not abuse its discretion in denying Gutierrez' motion for mistrial.”
Regarding
(7): Before the State adduced testimony relating to the use
of cellular telephones, the defendants objected and requested a
Daubert hearing on the admissibility of that evidence. Both
of the defendants later objected to the admission of telephone records
from Sprint Telecommunications, on the basis of relevance. Generally,
the defendants argued that because there was cell tower location
information contained in the records, the jury might infer that
particular telephone calls were made from particular areas. The
district court overruled the objection. The Court concluded that
Daubert was not pertinent to the records objected to as the
telephone records to which Sommer objected did not represent expert
opinion testimony. The testimony presented by the telephone company
employee through whom the records were admitted was not opinion
testimony, but instead foundational testimony explaining the data
in the records. “Any question about the foundation for the
cellular location data contained in the records would properly have
been framed under the business records exception to the hearsay
rule, not Daubert. See, id.; Neb. Evid. R. 803(5), Neb. Rev. Stat.
§ 27-803(5) (Cum. Supp. 2006)” said the Court. Discussing
some of the other errors in this evidence in the opinion the Court
concluded that the trial court did not abuse its discretion in permitting
the Sprint Telecommunications telephone records into evidence. “Sommer's
assignment of error is without merit.”
In regards
to (8): Both of the defendants question the sufficiency of the
evidence to support their convictions. Challenging the credibility
of the State's witnesses and the quality of the police investigation
of the crime, the defendants contendeded that their witnesses were
more credible. “While there was conflicting testimony in this
lengthy trial,” wrote the Court “the evidence was certainly
sufficient to support the jury's determination that the defendants
were guilty of the crimes charged.”
And finally,
in regards to (9): Both of the defendants contended that the
cumulative effect of the other errors they assigned deprived them
of a fair trial. Having rejected each of the defendants' assignments
of error the Court also concluded that the defendants were not denied
a fair trial, and rejected the defendants' final assignments of
error. AFFIRMED.
These combined
cases dealt with homicides which were the result of two drug dealers
killing of “middle men” in their drug operations. The
alleged errors dealt with Batson challenges, the use of inmate’s
testimony, other evidentiary objections, jury instructions, and
the bevy of assignment of error which were the result of such a
complex trial.
State
v. Gutierrez, 272 Neb. 995 (2007)
Supreme
Court Headnotes
Equal Protection:
- [Jurors:]
(Discrimination.) The Equal Protection Clause of the 14th Amendment
forbids prosecutors from using peremptory challenges to strike potential
jurors solely on account of their race.
Juries:
- [Discrimination:]
(Prosecuting Attorneys: Proof.) The evaluation of whether a
party has used peremptory challenges in a racially discriminatory
manner is a three-step process. First, the trial court must determine
whether the defendant has made a prima facie showing that the prosecutor
has exercised peremptory challenges on the basis of race. A defendant
satisfies the requirements of this step by producing evidence sufficient
to permit the trial judge to draw an inference that discrimination
has occurred. Second, if the requisite showing has been made, the
burden shifts to the prosecutor to present a race-neutral explanation
for striking the juror in question. Although the prosecutor must
present a comprehensible reason, the second step of this process
does not demand an explanation that is persuasive, or even plausible;
so long as the reason is not inherently discriminatory, it suffices.
Third, the trial court must then determine whether the defendant
has carried his or her burden of proving purposeful discrimination.
The final step involves evaluating the persuasiveness of the justification
proffered by the prosecutor, but the ultimate burden of persuasion
regarding racial motivation rests with, and never shifts from, the
opponent of the strike.
Pretrial
Procedure:
- [Witnesses:]
(Intent.) The intent of Neb. Rev. Stat. § 29-1929 (Cum.
Supp. 2006) is to ensure that criminal defendants have the opportunity
to prepare to meaningfully confront the testimony of a jailhouse
informer at trial and challenge the witness' credibility.
- [Appeal
and Error.] Trial courts have broad discretion with respect
to sanctions involving discovery procedures, and their rulings thereon
will not be reversed in the absence of an abuse of discretion. •••
A trial court's decision with respect to Neb. Rev. Stat. §
29-1929 (Cum. Supp. 2006) will not be reversed in the absence of
an abuse of discretion.
- [Evidence:]
Pursuant to Neb. Rev. Stat. § 29-1912 (Reissue 1995), upon
a defendant's proper request through discovery procedure, the State
must disclose information which is material to the preparation of
a defense to the charge against the defendant. In order that the
defendant receive a fair trial, requested and material information
must be disclosed to the defendant. (Prosecuting Attorneys.)
Whether a prosecutor's late disclosure of evidence results in prejudice
depends on whether the information sought is material to the preparation
of the defense, meaning that there is a strong indication that such
information will play an important role in uncovering admissible
evidence, aiding preparation of witnesses, corroborating testimony,
or assisting impeachment or rebuttal.
Motions for
Continuance:
- [Evidence.]
When a continuance will cure the prejudice caused by belated disclosure
of evidence, a continuance should be requested by counsel and granted
by the trial court.
Trial:
- [Evidence:]
Only evidence tending to suggest a decision on an improper basis
is unfairly prejudicial. (Appeal and Error.) The admission
of demonstrative evidence is within the discretion of the trial
court, and a judgment will not be reversed on account of the admission
or rejection of such evidence unless there has been a clear abuse
of discretion. (Testimony: Proof.) Demonstrative exhibits
are admissible if they supplement a witness' spoken description
of the transpired event, clarify some issue in the case, and are
more probative than prejudicial. ••• Demonstrative
exhibits are inadmissible when they do not illustrate or make clearer
some issue in the case; that is, where they are irrelevant or where
the exhibit's character is such that its probative value is substantially
outweighed by the danger of unfair prejudice. •••
Unless an objection to offered evidence is sufficiently specific
to enlighten the trial court and enable it to pass upon the sufficiency
of such objection and to observe the alleged harmful bearing of
the evidence from the standpoint of the objector, no question can
be presented therefrom on appeal. ••• An appellate
court reviews the trial court's conclusions with regard to evidentiary
foundation and witness qualification for an abuse of discretion.
(Juries: Appeal and Error.) Evidentiary error is harmless
when improper admission of evidence did not materially influence
the jury to reach a verdict adverse to substantial rights of the
defendant.
- [Waiver:]
(Appeal and Error.) The failure to make a timely objection waives
the right to assert prejudicial error on appeal.
- [Expert
Witnesses.] When an opinion involves scientific or specialized
knowledge, this court will apply the principles of Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct.
2786, 125 L. Ed. 2d 469 (1993). ••• Under the Daubert
v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct.
2786, 125 L. Ed. 2d 469 (1993), and Schafersman v. Agland Coop,
262 Neb. 215, 631 N.W.2d 862 (2001), jurisprudence, the trial court
acts as a gatekeeper to ensure the evidentiary relevance and reliability
of an expert's opinion. This gatekeeping function entails a preliminary
assessment whether the reasoning or methodology underlying the testimony
is valid and whether that reasoning or methodology properly can
be applied to the facts in issue.
Rules of
Evidence:
- [Appeal
and Error.] In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by the Nebraska
Evidence Rules; judicial discretion is involved only when the rules
make discretion a factor in determining admissibility. •••
The exercise of judicial discretion is implicit in determinations
of relevancy under Neb. Evid. R. 401, Neb. Rev. Stat. § 27-401
(Reissue 1995), and prejudice under Neb. Evid. R. 403, Neb. Rev.
Stat. § 27-403 (Reissue 1995), and a trial court's decision
regarding them will not be reversed absent an abuse of discretion.
- [Expert
Witnesses.] An expert's opinion is ordinarily admissible under
Neb. Evid. R. 702, Neb. Rev. Stat. § 27-702 (Reissue 1995),
if the witness (1) qualifies as an expert, (2) has an opinion that
will assist the trier of fact, (3) states his or her opinion, and
(4) is prepared to disclose the basis of that opinion on cross-examination.
Conspiracy:
- [Rules
of Evidence.] To be admissible under Neb. Evid. R. 801(4)(b)(v),
Neb. Rev. Stat. § 27-801(4)(b)(v) (Reissue 1995), the statements
of a coconspirator must have been made while the conspiracy was
pending and in furtherance of its objects. If the statements took
place after the conspiracy had ended, or if merely narrative of
past events, they are not admissible. ••• For an
out-of-court statement to be admissible under Neb. Evid. R. 801(4)(b)(v),
Neb. Rev. Stat. § 27-801(4)(b)(v) (Reissue 1995), there must
be evidence that there was a conspiracy involving the declarant
and the nonoffering party and that the statement was made during
the course and in furtherance of the conspiracy. •••
Neb. Evid. R. 801(4)(b)(v), Neb. Rev. Stat. § 27-801(4)(b)(v)
(Reissue 1995), is irrelevant to the direct testimony of a coconspirator.
••• Statements made by a coconspirator in furtherance
of avoiding capture or punishment are made in furtherance of the
conspiracy within the meaning of Neb. Evid. R. 801(4)(b)(v), Neb.
Rev. Stat. § 27-801(4)(b)(v) (Reissue 1995). •••
A coconspirator's idle chatter or casual conversation about past
events is generally not considered to be in furtherance of the conspiracy
for purposes of Neb. Evid. R. 801(4)(b)(v), Neb. Rev. Stat. §
27-801(4)(b)(v) (Reissue 1995). ((Words and Phrases.)) The
"in furtherance" language of Neb. Evid. R. 801(4)(b)(v),
Neb. Rev. Stat. § 27-801(4)(b)(v) (Reissue 1995), is to be
construed broadly.
- [Hearsay:]
(Evidence.) Before the trier of fact may consider testimony
under the coconspirator exception to the hearsay rule, a prima facie
case establishing the existence of the conspiracy must be shown
by independent evidence.
Verdicts:
- [Juries:]
(Appeal and Error.) Harmless error review looks to the basis
on which the jury actually rested its verdict; the inquiry is not
whether in a trial that occurred without the error a guilty verdict
would surely have been rendered, but, rather, whether the actual
guilty verdict rendered in the questioned trial was surely unattributable
to the error.
Jury Instructions:
- If it becomes
necessary to give further instructions to the jury during deliberation,
the proper practice is to call the jury into open court and to give
any additional instructions in writing in the presence of the parties
or their counsel.
- [Proof:]
(Appeal and Error.) In an appeal based on a claim of an erroneous
jury instruction, the appellant has the burden to show that the
questioned instruction was prejudicial or otherwise adversely affected
a substantial right of the appellant.
- [Appeal
and Error.] Whether a jury instruction is correct is a question
of law, regarding which an appellate court is obligated to reach
a conclusion independent of the determination reached by the trial
court. ••• All the jury instructions must be read
together, and if, taken as a whole, they correctly state the law,
are not misleading, and adequately cover the issues supported by
the pleadings and the evidence, there is no prejudicial error necessitating
reversal.
Courts:
- [Juries.]
The decision whether to reply to questions from the jury regarding
the applicable law is entrusted to the discretion of the trial court.
Motions for
Mistrial:
- [Appeal
and Error.] The decision whether to grant a motion for mistrial
is within the discretion of the trial court and will not be disturbed
on appeal in the absence of an abuse of discretion.
- [Prosecuting
Attorneys:] (Proof.) Before it is necessary to grant a mistrial
for prosecutorial misconduct, the defendant must show that a substantial
miscarriage of justice has actually occurred.
Criminal
Law:
- [Convictions:]
(Evidence: Appeal and Error.) In reviewing a criminal conviction,
an appellate court does not resolve conflicts in the evidence, pass
on the credibility of witnesses, or reweigh the evidence. Such matters
are for the finder of fact, and a conviction will be affirmed, in
the absence of prejudicial error, if the properly admitted evidence,
viewed and construed most favorably to the State, is sufficient
to support the conviction. ••• When reviewing a criminal
conviction for sufficiency of the evidence to sustain the conviction,
the relevant question for an appellate court is whether, after viewing
the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.
- [Directed
Verdict.] In a criminal case, a court can direct a verdict only
when there is a complete failure of evidence to establish an essential
element of the crime charged or the evidence is so doubtful in character,
lacking probative value, that a finding of guilt based on such evidence
cannot be sustained.
Date Filed
and Case No.: January 26, 2007. Nos. S-05-979, S-05-980.
Court Appealed
From: District Court for Douglas County: Gerald E. Moran, Judge.
Attorneys
for the Appeal: Michael P. Meckna and Jill A. Daley for Jesse
M. Gutierrez, appellant. Jerry M. Hug and Alan G. Stoler for Adam
P. Sommer, appellant. Jon Bruning and James D. Smith for State of
Nebraska, appellee.
Justices:
Wright, Connolly, Gerrard, Stephan, McCormack, and Miller-Lerman,
JJ., and Hannon, Judge, Retired.
Not Participating:
Heavican, C.J.
Authored
By: Gerrard, J.
Summary:
In separate informations filed 10/01/04, Jesse M. Gutierrez and
Adam P. Sommer (collectively the defendants) were each charged with
two counts of first degree murder, one count of attempted first
degree murder, and three counts of use of a deadly weapon to commit
a felony. All charges were in connection with the killings of Daniel
Lopez and Maria Ojeda and the attempted killing of Marcos Lucero.
In what seemed to be a business maneuver to eliminate the middle
man, the State's theory of the cases was that Lucero, Lucero's nephew
Gutierrez, and Gutierrez' friend Sommer had been involved in the
transportation and distribution of marijuana. Lucero, who lived
in Arizona, obtained marijuana from Mexico through his connections
there and transported it to Nebraska for sale. The State theorized
that Gutierrez and Sommer tried to kill Lucero so they could stay
in business by dealing with Lucero's connections directly. The cases
were consolidated for jury trial, and the jury returned verdicts
of guilty on all charges. Both of the defendants were sentenced
to consecutive terms of life imprisonment for the first degree murder
convictions and consecutive terms of 50 to 50 years' imprisonment
for each of the remaining convictions. Both of the defendants appealed
to the Nebraska Supreme Court. Because the cases were tried together
and the defendants' appellate arguments were substantially the same,
the Court considered these appeals together.
Both of the
defendants assigned that the district court erred in (1) overruling
their Batson objections to the removal of a juror for what
they said was for racial reasons; (2) denying their motions to exclude
a witness’ testimony, whose testimony arose from the witness’
being in custody, because of the State's alleged failure to comply
with the notice requirements applicable to jailhouse informers;
(3) permitting a chart as a demonstrative exhibit; (4) overruling
their objections to the admission, as coconspirator statements,
of purported hearsay; and (5) issuing supplemental instructions
to the jury. Separately, Gutierrez assigned that the court erred
in (6) denying his request for a continuance and motion for mistrial
based on incomplete discovery. Sommer assigned that the court erred
in (7) overruling his relevance and Daubert objections to
the admission of cellular telephone records. Finally, both of the
defendants assigned that the court erred in (8) finding the evidence
to be sufficient to support the verdicts and (9) committing cumulative
error.
Regarding
(1): The Court found that the record in these cases did not
permit it to consider a racial context for the State's peremptory
strikes, because the defendants' perfunctory Batson challenge
established little more than that a single Hispanic member of the
venire had been removed. Therefore, the record in these cases did
not demonstrate that the court clearly erred in determining that
the defendants failed to carry their burden of proving purposeful
discrimination.
Regarding
(2): Christopher Haukaas, who was in the Douglas County Correctional
Center provided information about the shooting to authorities. Haukaas
testified that he was a friend of Sommer and had become involved
in selling marijuana with him. Sommer introduced Haukaas to Gutierrez
and Haukaas said that during their conversation, Gutierrez made
references to having Lucero "taken out" so that Gutierrez
could take over his business. Both of the defendants joined in a
motion to exclude Haukaas' testimony, pursuant to Neb. Rev. Stat.
§ 29-1929 (Cum. Supp. 2006). The defense took the position
that Haukaas was a "jailhouse informer" within the meaning
of the statute and that the State had not met the 10-day statutory
notice requirement.
The Court held
that a trial court's decision with respect to § 29-1929 will
not be reversed in the absence of an abuse of discretion, The Court
ruled that here the district court did not abuse its discretion,
because the State timely notified the defendants that the witness
would testify pursuant to a plea agreement and Gutierrez was actually
notified, more than 10 days before trial, of the terms of the plea
agreement.
Regarding
(3): During its opening statement, the State displayed a demonstrative
exhibit--a chart depicting the relationships among many of the people
involved in the cases, including personal and business relationships.
No objection was made to the chart during the opening. At trial,
the jurors asked the court if the chart could be left up for their
reference during the trial. The defendants objected (foundation,
unfairly prejudicial, distracting to the jury) and the trial court
overruled the objections. The Court found no error in that the district
court specifically instructed the jury that the chart was not an
exhibit in the cases, and the chart was not sent to the jury room
for deliberation. The Court said it’s review of the record
found “clear support for all of the information depicted on
the chart. In fact, our analysis of the evidence in these cases
was helped by our own reference to the chart during our review of
the record.”
Regarding
(4): Both of the defendants also objected to Haukaas' testimony
on the basis of hearsay, arguing that Haukaas' testimony as to statements
made by Sommer and Gutierrez was not admissible as coconspirator
testimony because the existence of a conspiracy had not been proved
before Haukaas testified. The trial court overruled the objections,
indicating that it would determine, as the evidence was adduced,
whether there was evidence of a conspiracy. The Court said defendants'
argument was based on the mistaken premise that evidence of a conspiracy
was necessary before any of Haukaas' testimony was admissible.
“In fact, rule 801(4)(b)(v) governs only the admissibility
of testimony about out-of-court statements made by a coconspirator--not
the admissibility of all the other testimony offered by the same
witness. Rule 801(4)(b)(v) is simply irrelevant to the direct testimony
of a coconspirator. (Citations omitted.) There is no reason why
a witness cannot testify to the existence of a conspiracy, and that
the defendant was a participant, and then testify to out-of-court
statements made by the alleged coconspirators.”
Of the two statements
at which Sommer's argument was directed was a statement that Haukaas
testified Gutierrez made to him, after they were both in jail. “As
for Gutierrez' alleged statement to Haukaas in jail, it does not
implicate Sommer in any way, and its admission as to Sommer was
at worst harmless error.” Based on a thorough review of the
record, the Court concluded that Sommer's conviction was unattributable
to the error. “In the absence of a request for a limiting instruction,
or any prejudice to Sommer from the admission of the statement,
we find no reversible error in the district court's decision to
permit the testimony.” They rejected the defendants' assignments
of error with respect to coconspirator statements.
Regarding
(5): The day after the cases were submitted to the jury, the
jury asked the court to define "abets and procures." The
court held a telephonic conference with counsel, and gave a proposed
instruction to the jury as follows. The State agreed, but the defendants
objected. Gutierrez argued, first, that the district court erred
in issuing instructions to the jury neither in open court nor in
the presence of the parties and counsel. However, counsel in this
case was informed by telephonic hearing of each of the jury's questions,
and while they objected to the instructions, they did not object
to the procedure, which the Court found was a failure to make a
timely objection and waived the right to assert prejudicial error
on appeal. Furthermore, Gutierrez had not shown how he was prejudiced
by the court's procedure.
Sommer argued
that the second supplemental instruction, on transferred intent,
was prejudicial. “In the absence of the other instructions,
since the supplemental instruction standing alone is a correct statement
of law and is pertinent to the issues presented in the case, we
conclude that Sommer has failed to demonstrate that he was prejudiced
by the court's supplemental instruction” said the Court. As
neither of the defendants had shown how he was prejudiced by the
court's supplemental instructions, either in substance or in the
procedure by which the supplemental instructions were given the
Court found no merit in the defendants' assignments of error.
Regarding
(6): Gutierrez claimed that the district court erred in overruling
his request for a continuance and motion for mistrial based on allegedly
omitted police reports. As Gutierrez' counsel was given the time
he said he would need to review some material and was given additional
time to review the remaining material, the issue on appeal was really
whether a mistrial was warranted. The Court assumed without deciding,
for purposes of this analysis, that the State was under a duty to
provide Gutierrez with the disputed reports and that those reports
were not actually provided to Gutierrez. Before it is necessary
to grant a mistrial for prosecutorial misconduct, the defendant
must show that a substantial miscarriage of justice has actually
occurred. Gutierrez has not explained, in this case, why the continuance
that was granted was insufficient to cure any prejudice resulting
from the allegedly belated disclosures. Gutierrez did not specifically
identify any facts contained in the police reports that were pertinent
to the case but unknown to him, nor did he explain what he might
have found, given additional time, that would have been material.
“In short,” said the Court “Gutierrez has not explained
how the continuance that he was afforded was insufficient to allow
him to prepare to resume trial. The fact that no prejudice has been
explained lends support to our determination that the district court
did not abuse its discretion in denying Gutierrez' motion for mistrial.”
Regarding
(7): Before the State adduced testimony relating to the use
of cellular telephones, the defendants objected and requested a
Daubert hearing on the admissibility of that evidence. Both
of the defendants later objected to the admission of telephone records
from Sprint Telecommunications, on the basis of relevance. Generally,
the defendants argued that because there was cell tower location
information contained in the records, the jury might infer that
particular telephone calls were made from particular areas. The
district court overruled the objection. The Court concluded that
Daubert was not pertinent to the records objected to as the
telephone records to which Sommer objected did not represent expert
opinion testimony. The testimony presented by the telephone company
employee through whom the records were admitted was not opinion
testimony, but instead foundational testimony explaining the data
in the records. “Any question about the foundation for the
cellular location data contained in the records would properly have
been framed under the business records exception to the hearsay
rule, not Daubert. See, id.; Neb. Evid. R. 803(5), Neb. Rev. Stat.
§ 27-803(5) (Cum. Supp. 2006)” said the Court. Discussing
some of the other errors in this evidence in the opinion the Court
concluded that the trial court did not abuse its discretion in permitting
the Sprint Telecommunications telephone records into evidence. “Sommer's
assignment of error is without merit.”
In regards
to (8): Both of the defendants question the sufficiency of the
evidence to support their convictions. Challenging the credibility
of the State's witnesses and the quality of the police investigation
of the crime, the defendants contendeded that their witnesses were
more credible. “While there was conflicting testimony in this
lengthy trial,” wrote the Court “the evidence was certainly
sufficient to support the jury's determination that the defendants
were guilty of the crimes charged.”
And finally,
in regards to (9): Both of the defendants contended that the
cumulative effect of the other errors they assigned deprived them
of a fair trial. Having rejected each of the defendants' assignments
of error the Court also concluded that the defendants were not denied
a fair trial, and rejected the defendants' final assignments of
error. AFFIRMED.
These combined
cases dealt with homicides which were the result of two drug dealers
killing of “middle men” in their drug operations. The
alleged errors dealt with Batson challenges, the use of inmate’s
testimony, other evidentiary objections, jury instructions, and
the bevy of assignment of error which were the result of such a
complex trial.
State
v. Gutierrez, 272 Neb. 995 (2007)
Supreme
Court Headnotes
Equal Protection:
- [Jurors:]
(Discrimination.) The Equal Protection Clause of the 14th Amendment
forbids prosecutors from using peremptory challenges to strike potential
jurors solely on account of their race.
Juries:
- [Discrimination:]
(Prosecuting Attorneys: Proof.) The evaluation of whether a
party has used peremptory challenges in a racially discriminatory
manner is a three-step process. First, the trial court must determine
whether the defendant has made a prima facie showing that the prosecutor
has exercised peremptory challenges on the basis of race. A defendant
satisfies the requirements of this step by producing evidence sufficient
to permit the trial judge to draw an inference that discrimination
has occurred. Second, if the requisite showing has been made, the
burden shifts to the prosecutor to present a race-neutral explanation
for striking the juror in question. Although the prosecutor must
present a comprehensible reason, the second step of this process
does not demand an explanation that is persuasive, or even plausible;
so long as the reason is not inherently discriminatory, it suffices.
Third, the trial court must then determine whether the defendant
has carried his or her burden of proving purposeful discrimination.
The final step involves evaluating the persuasiveness of the justification
proffered by the prosecutor, but the ultimate burden of persuasion
regarding racial motivation rests with, and never shifts from, the
opponent of the strike.
Pretrial
Procedure:
- [Witnesses:]
(Intent.) The intent of Neb. Rev. Stat. § 29-1929 (Cum.
Supp. 2006) is to ensure that criminal defendants have the opportunity
to prepare to meaningfully confront the testimony of a jailhouse
informer at trial and challenge the witness' credibility.
- [Appeal
and Error.] Trial courts have broad discretion with respect
to sanctions involving discovery procedures, and their rulings thereon
will not be reversed in the absence of an abuse of discretion. •••
A trial court's decision with respect to Neb. Rev. Stat. §
29-1929 (Cum. Supp. 2006) will not be reversed in the absence of
an abuse of discretion.
- [Evidence:]
Pursuant to Neb. Rev. Stat. § 29-1912 (Reissue 1995), upon
a defendant's proper request through discovery procedure, the State
must disclose information which is material to the preparation of
a defense to the charge against the defendant. In order that the
defendant receive a fair trial, requested and material information
must be disclosed to the defendant. (Prosecuting Attorneys.)
Whether a prosecutor's late disclosure of evidence results in prejudice
depends on whether the information sought is material to the preparation
of the defense, meaning that there is a strong indication that such
information will play an important role in uncovering admissible
evidence, aiding preparation of witnesses, corroborating testimony,
or assisting impeachment or rebuttal.
Motions for
Continuance:
- [Evidence.]
When a continuance will cure the prejudice caused by belated disclosure
of evidence, a continuance should be requested by counsel and granted
by the trial court.
Trial:
- [Evidence:]
Only evidence tending to suggest a decision on an improper basis
is unfairly prejudicial. (Appeal and Error.) The admission
of demonstrative evidence is within the discretion of the trial
court, and a judgment will not be reversed on account of the admission
or rejection of such evidence unless there has been a clear abuse
of discretion. (Testimony: Proof.) Demonstrative exhibits
are admissible if they supplement a witness' spoken description
of the transpired event, clarify some issue in the case, and are
more probative than prejudicial. ••• Demonstrative
exhibits are inadmissible when they do not illustrate or make clearer
some issue in the case; that is, where they are irrelevant or where
the exhibit's character is such that its probative value is substantially
outweighed by the danger of unfair prejudice. •••
Unless an objection to offered evidence is sufficiently specific
to enlighten the trial court and enable it to pass upon the sufficiency
of such objection a
