Appeal from the District Court for Kimball County:
DEREK C. WEIMER, Judge. Reversed and remanded for a new trial.
James R. Mowbray and
Kelly S. Breen, of Nebraska Commission on Public Advocacy, for appellant.
Jon Bruning, Attorney General, and Stacy M. Foust for appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack, Miller-Lerman, and Cassel, JJ.
Syllabus by the Court
1. Criminal Law: Motions for Continuance: Appeal and Error. A decision whether to grant a continuance in a criminal case is within the discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion.
2. Judges: Words and Phrases. A judicial abuse of discretion exists only when the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result in matters submitted for disposition.
3. Rules of Evidence. 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.
4. Rules of Evidence: Other Acts: Appeal and Error. It is within the discretion of the trial court to determine relevancy and admissibility of evidence of other wrongs or acts under Neb. Evid. R. 403 and 404(2), Neb.Rev.Stat. §§ 27-403 (Reissue 2008) and 27-404(2) (Cum.Supp.2012), and the trial court's decision will not be reversed absent an abuse of discretion.
5. Constitutional Law: Criminal Law: Pretrial Procedure: Evidence. A criminal defendant has constitutional and statutory rights which mandate the timely disclosure of the State's evidence in a criminal case.
[286 Neb. 682] 6. Pretrial Procedure: Evidence. Neb.Rev.Stat. § 29-1912(2) (Cum.Supp.2012) requires the State, upon request, to disclose evidence that is material to the preparation of a defense.
7. Double Jeopardy: Evidence: New Trial: Appeal and Error. The Double Jeopardy Clause does not forbid a retrial so long as the sum of all the evidence admitted by a trial court, whether erroneously or not, would have been sufficient to sustain a guilty verdict.
8. Rules of Evidence: Other Acts. Neb. Evid. R. 404(2), Neb.Rev.Stat. § 27-404(2) (Cum.Supp.2012), does not apply to evidence of a defendant's other crimes or bad acts if the evidence is inextricably intertwined with the charged crime. This rule includes evidence that forms part of the factual setting of the crime, or evidence that is so blended or connected to the charged crime that proof of the charged crime will necessarily require proof of the other crimes or bad acts, or if the other crimes or bad acts are necessary for the prosecution to present a coherent picture of the charged crime.
Vencil Leo Ash III was charged with first degree murder in the death of Ryan Guitron. Ash was found guilty following a jury trial and was sentenced to life imprisonment. We reverse Ash's conviction and sentence and remand the cause for a new trial.
On November 4, 2003, Guitron was reported missing by his girlfriend. Guitron's remains were discovered nearly 7 years later, on April 8, 2010, on an abandoned
farm in rural Kimball County, Nebraska. The cause of death was determined to be two gunshot wounds, one through the right eye and the other through the back of the neck. The shots were later determined [286 Neb. 683]to be fired from a Hi-Point .380-caliber pistol purchased by Ash's sister. Guitron's death was later found to have occurred on October 15, 2003.
In August 2003, Guitron had been living in a trailer home in Fort Collins, Colorado, with Ash and Kelly Meehan-Ash, Ash's then 15-year-old girlfriend (now his wife). Guitron, Ash, and Meehan-Ash were methamphetamine users. After living with Guitron for 3 to 4 weeks during August 2003, Ash and Meehan-Ash moved to a tent near Grover, in Weld County, Colorado. Ash testified that at this time, he retrieved the .380-caliber pistol from his sister because Meehan-Ash wanted some form of protection. The pistol was originally purchased on August 1, 2003, in Walsenburg, Colorado. Ash was with his sister during the purchase of this handgun.
MEEHAN-ASH'S VERSION OF EVENTS
At the time of trial, Ash and Meehan-Ash described two different versions of the events surrounding Guitron's death, each implicating the other as responsible for his murder. Meehan-Ash testified that Guitron had stolen a pair of her underwear and a bra and kept them with a pornographic magazine in a backpack and that after Ash found these items in Guitron's closet, he threatened to kill Guitron because of it. According to Meehan-Ash, on the day of the murder, Ash asked Guitron to travel with Ash and Meehan-Ash to get methamphetamine. Ash drove them in Guitron's car to the abandoned farm where Guitron's body was later discovered. The three of them had smoked methamphetamine during the car ride and again upon arriving at the abandoned farm.
According to Meehan-Ash, once parked, all three got out of the car and walked around the farm. They came upon parts of a baby bed, and Ash asked Meehan-Ash to collect the parts and take them back to the car. On her way back to the car, Meehan-Ash testified, she heard a gunshot. She turned in the direction of the two men and saw Ash standing over Guitron's body, holding the .380-caliber pistol. Meehan-Ash testified this was the first time she had seen the pistol that day because Ash normally tucked the gun in his pants. Meehan-Ash stated she did not hear or see a struggle or see any other weapon during the [286 Neb. 684] incident. Ash then walked to the car to get some black gloves and told Meehan-Ash he was going to bury Guitron under a woodpile near the farm. After Ash covered up the body, they left to get gas and drove back to Fort Collins.
ASH'S VERSION OF EVENTS
Ash denied Meehan-Ash's story that Ash was aware Guitron had stolen Meehan-Ash's underwear and bra and that Ash wanted revenge. Ash testified that he and Guitron were actually good friends. Ash testified that on the day of the murder, the three of them went in Guitron's car to get iodine, an ingredient to make methamphetamine, from Guitron's iodine source so that Ash could " cook" more methamphetamine. Ash stated that he missed a turn and that they ended up at the abandoned farm where some old cars caught his eye. Ash also stated that he left his sister's .380-caliber pistol in a cooler that he put in the back seat next to Meehan-Ash. Ash testified, as did Meehan-Ash, that the three of them had smoked methamphetamine during the drive. He also agreed that they found a baby bed while at the farm. Ash testified that after finding the baby bed, Guitron went to the car and got a .22-caliber rifle
and then Ash and Guitron continued to search the property without Meehan-Ash.
Ash testified that during their search, Guitron was going to smoke more methamphetamine, but discovered that there was no more methamphetamine left to smoke. Guitron then claimed that " he was going to kill that fucking bitch," referring to Meehan-Ash, and " took off running," rifle in hand. Ash went after Guitron, and he saw Guitron fire a shot from the .22-caliber rifle at Meehan-Ash. Ash then knocked the rifle out of Guitron's hand, which caused another round to go off. The two men struggled, and then Ash saw Meehan-Ash and heard a shot. The men fell to the ground, and Ash heard another shot. He then saw Guitron lying on the ground and Meehan-Ash in the car, banging her head against the dashboard. Ash testified, as did Meehan-Ash, that they then went to get gas. Ash testified that they returned, however, to pick up the rifle and retrieve from Guitron's person the address of Guitron's iodine source.
[286 Neb. 685] After the murder, Ash traded Guitron's car for a Cadillac Escalade. Meehan-Ash was with him during the trade. After trading for the Escalade, Ash and Meehan-Ash returned to Guitron's trailer home in Fort Collins and loaded Guitron's property into the Escalade. On October 13, 2003, 2 days before the murder, Ash had pawned Guitron's " Raiders Pro Line" leather jacket. Meehan-Ash claimed they had pawned the jacket to get money for food. Ash testified that he probably had pawned the jacket if his name was on the pawn ticket, but that he did not remember doing so. On October 17, 2 days after the murder, Ash pawned Guitron's television.
On October 18, 2003, Ash was arrested on a warrant for parole violations. The Escalade remained with Meehan-Ash after Ash's arrest. Meehan-Ash was arrested the next day on a juvenile warrant, and the .380-caliber pistol was discovered under Meehan-Ash's bed at Ash's sister's house where Meehan-Ash was living. The Escalade was towed on October 19. Several of Guitron's possessions were removed from the Escalade, including his credit card and various personal items identified at trial as belonging to Guitron. The parts of the baby bed gathered on the day of the murder were also removed from the Escalade. Law enforcement retrieved the .380-caliber pistol from Ash's sister on November 24. It was not disputed that this was the weapon used to shoot Guitron.
After Guitron's disappearance, Ash was questioned by law enforcement on several occasions. On November 4, 2003, Ash indicated that he had last seen Guitron on October 17 and that Guitron was supposed to pick him up to go work at an oil rig the next day, but Guitron never showed up. And on March 18, 2004, Ash was interviewed by the lead investigator into Guitron's disappearance. At that time, Ash told the investigator that he was broke at the time of his arrest because he had given Guitron large sums of money. Ash claimed that Guitron was still alive and that he last saw him on October 18, 2003, at Guitron's trailer home. Ash denied killing Guitron, but at the end of the interview, unsolicited, he asked whether they had found Guitron's body. Ash then stated that if Guitron was dead, law enforcement would have found his body because it had been quite some time since Guitron's disappearance.
[286 Neb. 686] On April 2, 2010, Meehan-Ash was interviewed by law enforcement on a different matter; however, she volunteered at the interview that Ash had killed Guitron. Meehan-Ash was then escorted by the lead investigator ...