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State v. Foster

Supreme Court of Nebraska

November 15, 2013

State of Nebraska, Appellee,
Jeremy D. Foster, Appellant.

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Appeal from the District Court for Douglas County: PETER C. BATAILLON, Judge.

Glenn Shapiro and Michael J. Wilson, Omaha, of Schaefer Shapiro, L.L.P., for appellant.

Jon Bruning, Attorney General, and Stacy M. Foust, Lincoln, for appellee.

Wright, Connolly, Stephan, McCormack, and Miller-Lerman, JJ., and Cassel, Judge.


1. Trial: Joinder. There is no constitutional right to a separate trial.

2. Trial: Joinder: Proof: Appeal and Error. The burden is on the party challenging a joint trial to demonstrate how and in what manner he or she was prejudiced.

3. Trial: Joinder: Appeal and Error. A trial court's ruling on a motion for consolidation of prosecutions properly joinable will not be disturbed on appeal absent an abuse of discretion.

4. Trial: Joinder: Indictments and Informations. The propriety of a joint trial involves two questions: whether the consolidation is proper because the defendants could have been joined in the same indictment or information, and whether there was a right to severance because the defendants or the State would be prejudiced by an otherwise proper consolidation of the prosecutions for trial.

5. Trial: Joinder: Juries. A court should grant a severance only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.

6. Trial: Joinder: Proof. To prevail on a severance argument, a defendant must show compelling, specific, and actual prejudice from the court's refusal to grant the motion to sever.

7. Trial: Joinder: Proof. A defendant must show that a joint trial caused him or her such compelling prejudice that he or she was deprived of a fair trial.

8. Pleadings: Parties: Judgments: Appeal and Error. A denial of a motion to sever will not be reversed unless clear prejudice and an abuse of discretion are shown.

9. Trial: Evidence: Joinder. The existence of mutually antagonistic defenses is not prejudicial per se.

10. Trial: Joinder: Proof. In order to be entitled to severance based on mutually exclusive defenses, the defendant must show real prejudice, rather than merely note that each defendant is trying

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to exculpate himself or herself while inculpating the other.

11. Criminal Law: Aiding and Abetting: Trial: Evidence. The fact that one codefend ant was defending against the charge of aiding and abetting the other codefendant in committing the underlying crime does not necessarily create mutually exclusive defenses.

12. Criminal Law: Aiding and Abetting. Aiding and abetting is simply another basis for holding an individual liable for the underlying crime.

13. Criminal Law: Aiding and Abetting. Neb.Rev.Stat. ยง 28-206 (Reissue 2008) provides that a person who aids or abets may be prosecuted and punished as if he or she were the principal offender.

14. Trial: Waiver: Appeal and Error. The failure to make a timely objection waives the right to assert prejudicial error on appeal.

[286 Neb. 827] 15. Rules of Evidence: Hearsay: Proof. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

16. Hearsay: Extrajudicial Statements. An extrajudicial statement not offered to prove the truth of the matter asserted is not hearsay.

17. Constitutional Law: Criminal Law: Trial: Witnesses. In all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him or her.

18. Criminal Law: Witnesses: Testimony. Statements to friends, relatives, accomplices, and anyone outside the criminal justice system are not testimonial.

19. Criminal Law: Witnesses: Testimony: Intent. A statement that is not intended for use in the prosecution of a crime and that law enforcement had no role in obtaining is not testimonial.

20. Trial: Juries. When a case is finally submitted to the jury, jury members must be kept together in some convenient place, under the charge of an officer, until they agree upon a verdict or are discharged by the court.

21. Trial: Juries: Waiver. A defendant can waive the right to sequester the jury.

Wright, J.


Jeremy D. Foster was charged with one count of murder in the first degree, four counts of assault in the second degree, and five counts of use of a deadly weapon to commit a felony. His codefendant, Darrin D. Smith, was charged with the same crimes, and the two were tried jointly. A jury convicted both Smith and Foster on all counts, and they were each sentenced to life imprisonment plus 96 to 150 years. Smith and Foster perfected timely separate appeals to this court. Because each has assigned different errors and makes distinct arguments, we address the two appeals in separate opinions, addressing errors in the order assigned by the respective appellant. We affirm Foster's convictions and sentences.

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[286 Neb. 828] II. FACTS


The following facts are relevant to Foster's appeal: Brothers Victor Henderson and Corey Henderson belonged to the " Pleasantview" or " PMC" gang in Omaha, Nebraska. Smith was a member of the rival " 40th Avenue" gang.

Corey and Victor were federally indicted and agreed to plead guilty and testify for the government in exchange for more lenient sentencing. When they were released from federal prison in 2007, they were considered " snitches" within the gang community.

Following their release, Corey and Victor saw Smith at a party in October 2008. Smith told Corey: " We don't fuck with your kind." About 2 weeks before the shooting, Corey and Victor saw Smith again at an American Legion hall in Omaha (the Legion). The Legion is considered a bar for Corey and Victor's gang. Smith made another statement to the effect of " we don't mess with your kind."

On November 9, 2008, Corey, Victor, and several of their family members went to the Legion. While Corey and Victor were there, Smith and Foster entered the bar wearing hooded sweatshirts. Smith and Foster were in the Legion approximately 10 minutes, and before they left, they looked and nodded toward Corey and Victor.

Around closing time, Victor attempted to break up a fight in the parking lot of the Legion. Smith and Foster returned, and Corey and Victor were shot. The evidence was in conflict as to whether Foster or Smith was the shooter. Officers responded to the Legion and found a chaotic scene. Victor was fatally shot in the neck, and four others were wounded.

Within a month, Smith and Foster were arrested. Both were charged with one count of first degree murder, four counts of second degree assault, and five counts of use of a deadly weapon to commit a felony.


On April 9, 2010, over the objection of both defendants, the district court sustained the State's motion to consolidate. Later, the court sustained Smith's motion to sever, but subsequently [286 Neb. 829] reconsolidated the trials. Before trial, both defendants again moved to sever, arguing that they would be required to " point the finger" at each other. The State asserted that it planned to prosecute the defendants based on a theory that they acted together. The court overruled both motions.


Neither defendant testified at trial. Both defendants proceeded mainly by cross-examining witnesses called by the State. We summarize the relevant trial testimony below.

(a) Robert Wiley

Officer Robert Wiley received a call at 12:44 a.m. on November 10, 2008. Upon responding to the call, Wiley found Victor lying in blood with a gunshot wound to his neck.

At trial, Wiley testified that soon after arriving on the scene, he observed a woman screaming, " It was D-Wacc, it was D-Wacc." The court sustained two of Smith's objections and instructed the jury to disregard Wiley's testimony about what the screaming individual said. Foster did not object to this testimony.

Later, the State asked Wiley to describe the demeanor of the person screaming and state what she said. Smith objected on hearsay and confrontation grounds, but Foster did not. The State claimed the statement fell under the excited utterance exception to the hearsay rule. Smith's

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objection was overruled, and Wiley proceeded to testify that the party was screaming, " It was D-Wacc," over and over again.

(b) Corey Henderson

Corey testified that he knew Smith as " D-Wacc." He explained that he and Smith had grown up together, that there was a fairly close connection between Victor's and Smith's families, and that Victor had fathered children with Smith's cousin. Victor and Smith were on good terms. Over Smith's objection, Corey also testified that Smith had been a member of the 40th Avenue gang from the time Smith was approximately 13 years old up through the shooting. Corey explained that in 2003 and 2004, Corey and Victor were federally indicted. They cooperated with the federal government [286 Neb. 830] and testified against members of Smith's gang in exchange for lighter prison sentences. As a result, Corey and Victor were labeled as " snitches" and received threats. Following their release from federal prison, Corey and Victor primarily associated with their family members and continued to associate with members of the Swift family.

Despite mainly associating with family, Corey testified than they saw Smith on several occasions before the shootings. In October 2008, Corey and Victor saw Smith at a party where, after Corey acknowledged Smith, Smith stated, " We don't fuck with your kind." At trial, Foster did not object to Corey's testimony about Smith's statement or request a limiting instruction.

Corey testified that he and Victor next saw Smith 2 weeks before the shootings. Corey and Victor went to the Legion, where Corey noticed Smith on the dance floor. They stayed only about 30 minutes. As Corey walked out, he saw that a group of males had surrounded Victor outside of a car, including Smith, " Don Don" Swift, and a boy of about 14, who each had a gun. " Don Don" was arguing with Victor. At some point, Corey heard Smith say, " We don't fuck with y'all kind. They ain't tripping off that other stuff. We just don't fuck with y'all kind." Corey understood this to be a comment about Corey and Victor's being " snitches." Foster did not object to this testimony about Smith's statements outside the Legion or request a limiting instruction.

On the night of November 9, 2008, Corey and Victor were at the Legion. While there, Corey saw Smith and Foster come into the Legion wearing hooded sweatshirts with the hoods pulled over their heads. Smith wore a black hooded sweatshirt. Foster wore a gray hooded sweatshirt, was light skinned, had braided hair, and walked with a limp. While at the Legion, Smith gave Corey a " hateful look or a stare." Corey also saw Smith and Foster looking and nodding toward him and Victor. After about 10 minutes, Smith and Foster left the Legion.

Later that evening, Victor attempted to stop a fight in the parking lot. When Corey noticed that Victor turned his head, Corey turned his head to see what caught Victor's attention. He [286 Neb. 831] saw that Smith and Foster had returned and were only about 6 or 7 feet away. They had switched hooded sweatshirts. Smith was now wearing the gray hooded sweatshirt, and Foster was wearing the black hooded sweatshirt.

Corey testified, " I [saw] like a gesture and then I turned real quick and I could just see a flash." The gesture was " like maybe they [were] caught off guard, or it was a movement." Corey said that when Smith made the gesture, he did not see Smith with a gun. Corey saw " fire" and heard " a loud boom" coming from the direction of Foster, consistent with a " bigger handgun." Corey began to run between

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the cars in the parking lot, but he stopped because he had been shot in the leg.

During cross-examination by Foster, Corey testified that he picked Smith out of a photographic lineup but could not identify Foster. Foster later attempted to impeach Corey with his prior statements to police that he saw Smith hand Foster a gun and that Smith was wearing a black hooded sweatshirt. When Foster asked Corey whether he told police that " Don Don" had brandished a gun at Victor 2 weeks prior to the shooting, Corey responded, " I can't recall."

Smith similarly questioned Corey about the person referred to as " Don Don" who threatened Victor with a firearm. Smith also questioned Corey about testifying for the federal government and receiving threats from individuals other than Smith.

(c) Shampagne Swift

Shampagne Swift was at the Legion the evening of the shooting and saw Smith and another individual. She had not seen the individual with Smith before, but testified that he had a black hooded sweatshirt, light skin, and braids. When Smith and the individual with him left the bar, they went past the table where Corey and Victor were seated. Later, as Shampagne was walking toward her mother's house, she heard shots.

(d) Martini Swift

At trial, Martini Swift testified that she saw Smith enter the Legion, but that she did not see anyone enter the Legion with Smith. Then, the State impeached Martini with her statement to police that Smith walked into the Legion with a " light-skinned boy" wearing braids and a gray hooded sweatshirt.

[286 Neb. 832] (e) Tameaka Smith

Tameaka Smith was in her van in the Legion parking lot when the gunshots began. She saw someone in a black hooded sweatshirt shooting a gun from either a crouching position or a shooter's stance. She said the shooter was skinny and taller than her. ...

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