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State v. Smith

Supreme Court of Nebraska

November 15, 2013

State of Nebraska, Appellee,
Darrin D. Smith, Appellant.

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

Peder Bartling, of Bartling Law Offices, P.C., L.L.O., for appellant.

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

Darrin D. Smith, pro se.

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


1. Trial: Joinder: Proof. There is no constitutional right to a separate trial. The right is statutory and depends upon a showing that prejudice will result from a joint trial.

2. 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.

3. 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.

4. 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.

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

[286 Neb. 857] 6. 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.

7. Trial: Joinder. A defendant is not considered prejudiced by a joinder where the evidence relating to both offenses would be admissible in a trial of either offense separately.

8. Verdicts: Juries: Jury Instructions: Presumptions. Absent evidence to the contrary, it is presumed that a jury followed the instructions given in arriving at its verdict.

9. 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.

10. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court, an appellate court reviews the admissibility of evidence for an abuse of discretion.

11. Judgments: Words and Phrases. An abuse of discretion occurs when a trial court's decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence.

12. Rules of Evidence: Other Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he or she acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

13. 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 if the other crimes or bad acts are necessary for the prosecution to present a coherent picture of the charged crime.

14. Rules of Evidence: Other Acts. Where evidence of crimes is so blended or connected with the ones on trial so that proof of one incidentally involves the other or explains the circumstances, it is admissible as an integral part of the immediate context of the crime charged. Where the other evidence is so integrated, it is not extrinsic and therefore not governed by Neb. Evid. R. 404(2), Neb.Rev.Stat. § 27-404(2) (Cum.Supp.2012).

15. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings under the residual hearsay exception, an appellate court reviews for clear error the factual findings underpinning a trial court's hearsay ruling and reviews de novo the court's ultimate determination to admit evidence over a hearsay objection.

16. Rules of Evidence: Hearsay: Appeal and Error. An appellate court reviews for clear error the trial court's factual findings underpinning the excited utterance hearsay exception, resolving evidentiary conflicts in favor of the successful party, who is entitled to every reasonable inference deducible from the evidence.

17. Rules of Evidence: Hearsay: Proof.Neb. Evid. R. 801(3), Neb.Rev.Stat. § 27-801(3) (Reissue 2008), provides that hearsay is a statement, other than one [286 Neb. 858] made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

18. Rules of Evidence: Rules of the Supreme Court: Hearsay. Hearsay is not admissible except as provided by the rules of evidence or by other rules adopted by the statutes of the State of Nebraska or by the discovery rules of the Nebraska Supreme Court.

19. Rules of Evidence: Hearsay. For a statement to qualify as an excited utterance, the following criteria must be established: (1) There must have been a startling event, (2) the statement must relate to the event, and (3) the statement must have been made by the declarant while under the stress of the event.

20. Rules of Evidence: Hearsay. The underlying theory of the excited utterance exception is that circumstances may produce a condition of excitement which temporarily stills the capacity of reflection and produces utterances free of conscious fabrication.

21. Rules of Evidence: Hearsay. The true test in spontaneous exclamations is not when the exclamation was made, but whether under all the circumstances of the particular exclamation the speaker may be considered as speaking under the stress of nervous excitement and shock produced by the act in issue.

22. Constitutional Law: Witnesses: Appeal and Error. An appellate court reviews de novo a trial court's determination of the protections afforded by the Confrontation Clause of the Sixth Amendment to the U.S. Constitution and reviews the underlying factual determinations for clear error.

23. Constitutional Law: Witnesses. The Confrontation Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it.

24. Constitutional Law: Search and Seizure: Motions to Suppress: Appeal and Error. In reviewing a trial court's ruling on a motion to suppress based on a claimed violation of the Fourth Amendment, an appellate court applies a two-part standard of review. Regarding historical facts, an appellate court reviews the trial court's findings for clear error, but whether those facts trigger or violate Fourth Amendment protections is a question of law that an appellate court reviews independently of the trial court's determination.

25. Motions to Suppress: Confessions: Constitutional Law: Miranda Rights: Appeal and Error. In reviewing a motion to suppress a confession based on the claimed involuntariness of the statement, including claims that it was procured in violation of the safeguards established by the U.S. Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), an appellate court applies a two-part standard of review. With regard to historical facts, an appellate court reviews the trial court's findings for clear error. Whether those facts suffice to meet the constitutional standards, however, is a question of law, which an appellate court reviews independently of the trial court's determination.

26. Constitutional Law: Appeal and Error. Violations of the Fourth Amendment are subject to harmless error analysis.

27. Miranda Rights: Appeal and Error. Violations of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), are subject to a harmless error analysis.

[286 Neb. 859] 28. Motions for Mistrial: Appeal and Error. Whether to grant a mistrial is within the trial court's discretion, and an appellate court will not disturb its ruling unless the court abused its discretion.

29. Motions for Mistrial. A party must premise a motion for mistrial upon actual prejudice, not the mere possibility of prejudice.

30. Criminal Law: Motions for Mistrial: Appeal and Error. A mistrial is properly granted in a criminal case where an event occurs during the course of a trial that is of such a nature that its damaging effect cannot be removed by proper admonition or instruction to the jury and thus prevents a fair trial.

31. Trial: Photographs. The admission of photographs of a gruesome nature rests largely with the discretion of the trial court, which must determine their relevancy and weigh their probative value against their prejudicial effect.

32. Homicide: Photographs. In a homicide prosecution, photographs of a victim may be received into evidence for the purpose of identification, to show the condition of the body or the nature and extent of wounds and injuries to it, and to establish malice or intent.

33. Criminal Law: Convictions: Evidence: Appeal and Error. In reviewing a sufficiency of the evidence claim, whether the evidence is direct, circumstantial, or a combination thereof, the standard is the same: 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. The relevant question 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.

34. Constitutional Law: Trial. While one or more trial errors might not, standing alone, constitute prejudicial error, their cumulative effect may deprive a defendant of his or her constitutional right to a public trial by an impartial jury.

35. Speedy Trial. Every person indicted or informed against for any offense shall be brought to trial within 6 months, as computed under Neb.Rev.Stat. § 29-1207 (Cum.Supp.2012).

36. Constitutional Law: Speedy Trial. Determining whether a defendant's constitutional right to a speedy trial has been violated requires a balancing test in which the courts must approach each case on an ad hoc basis.

37. Judgments: Speedy Trial: Appeal and Error. As a general rule, a trial court's determination as to whether charges should be dismissed on speedy trial grounds is a factual question which will be affirmed on appeal unless clearly erroneous.

38. Appeal and Error. In order to be considered by an appellate court, an alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error.

Wright, J.

[286 Neb. 860] I. NATURE OF CASE

Darrin D. Smith 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, Jeremy D. Foster, was charged with the same counts, and the two were tried jointly. The 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 and assign different errors. We address their appeals in separate opinions. We affirm Smith's convictions and sentences.



Brothers Victor Henderson and Cory Henderson belonged to the " Pleasantview" or " PMC" gang in Omaha, Nebraska. The defendant, Smith, was a member of the rival " 40th Avenue" gang. Corey had known Smith since Corey was 15. Smith and Victor were good friends.

Corey and Victor were federally indicted in 2003 and 2004, respectively. Both agreed to plead guilty and testify for the government in exchange for more lenient sentencing. When Corey and Victor were released from federal prison in 2007, they were considered " snitches" by their community in Omaha.

Following their release, Corey and Victor first saw Smith at a party in October 2008. Smith told Corey, " We don't fuck with your kind" or " we don't mess with your kind." About 2 weeks before the shootings, Corey saw Smith again at an American Legion Hall in Omaha (the Legion). The Legion is considered a bar for Corey and Victor's gang.

[286 Neb. 861] On November 9, 2008, Corey, Victor, and several of their family members went to the Legion. Smith and Foster entered the bar. Both were wearing hooded sweatshirts (hoodies). They were in the Legion a short time, 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. Smith and Foster returned, and Corey and Victor were shot. The trial testimony was in conflict as to the identity of the shooter. Officers responded to the Legion and found a chaotic scene. Five people had been shot. Victor was fatally shot in the neck. Four others were wounded.

Smith and Foster were arrested later that month. They were both 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, and their cases were consolidated for trial.


(a) Robert Wiley

Officer Robert Wiley testified that he received a call at 12:44 a.m. on November 10, 2008. He found Victor lying in blood with a gunshot wound to his neck. Wiley observed a woman who was screaming and crying. Over Smith's objection, Wiley testified that Tamela Henderson was screaming, " It was D-Wacc, it was D-Wacc." Other testimony established that Smith is known as D-Wacc.

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(b) Corey Henderson

Corey testified that he saw two people wearing hoodies come into the Legion with the hoods over their heads. Corey said that he recognized the individual in the black hoodie as Smith. The second person was light skinned, had a braid, wore a gray hoodie, and walked with a limp. Corey testified that he had never seen the individual in the gray hoodie prior to that night. Corey later identified the individual in a gray hoodie as Foster.

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. Smith and Foster left the Legion after about 10 minutes.

[286 Neb. 862] Later that evening, Victor attempted to stop a fight in the parking lot of the Legion. When Corey noticed that Victor turned his head, Corey turned to see what caught Victor's attention. He saw that Smith and Foster had returned and were only about 6 or 7 feet away. Smith and Foster had switched hoodies; Smith was now wearing the gray hoodie, and Foster was wearing the black hoodie.

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." When Smith made the gesture, Corey did not see Smith with a gun. Corey then saw " fire" and heard " a loud boom" coming from the direction of Foster. Corey began running. Eventually, he could not run anymore because he had been shot in the leg. According to Corey, Foster was the only shooter.

At trial, Foster impeached Corey, because previously, Corey had told police that Smith had a gun and had handed it to Foster before the shooting. Corey had also told police he thought both Smith and Foster may have been shooting at him. The court instructed the jury three times that this evidence was to be used solely for impeachment.

(c) Shampagne Swift

Shampagne Swift was at the Legion that evening and saw Smith and Foster. She had not seen Foster before, but testified he wore a black hoodie, had light skin, and had braids. Smith and Foster left the bar a different way than they entered and went past Corey and Victor's table. Later, as Shampagne was walking toward her mother's house, she heard shots.

(d) Tameaka Smith

Tameaka Smith was in her van in the parking lot when the gunshots began. She saw someone in a black hoodie shooting a gun from either a crouching position or a shooter stance. She said the shooter was skinny and taller than her. She testified she was about 5 feet 6 inches or 5 feet 7 inches tall. She did not recall whether someone had been next to the shooter.

[286 Neb. 863] (e) Martini Swift

Martini Swift saw Smith come in the bar by himself. She walked out of the bar with him for a cigarette. Smith left, and Martini lit a cigarette. She was one of the participants in the fight Victor attempted to stop in the parking lot. When Martini heard gunfire, she started to run. She did not see Smith outside the bar at the time of the shooting.

(f) Tenisha Bennett

Tenisha Bennett was less than 5 feet from Victor as he was trying to break up the fight in the parking lot. She turned and saw a person standing close to Victor and pointing a gun at him. The man with the gun was wearing a black coat with a hood pulled far over his face. It was possible someone else was standing next to the shooter, but the shooter seemed to be alone. Tenisha's look at the shooter was

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brief. She knew Foster and stated she did not see him that evening.

(g) Jacqueline Edwards

Jacqueline Edwards saw someone come into the bar with Smith. That person was light skinned, had two long pigtails, and wore a gray hoodie with the hood pulled up. Jacqueline was at a vehicle in the parking lot when she heard five or six gunshots.

(h) Tamela Henderson

Tamela Henderson left the bar at the same time as Victor, Corey, and a few others. She was walking back toward the bar when she received a telephone call. As she walked and talked on her cell phone, she was forced to sidestep two men. She saw their faces; one was Smith, and the other was a person she had seen in the bar earlier that evening. They were wearing the same hoodies they had been wearing in the bar. Smith had a gun in his hand. She did not see Smith's companion with a gun. Tamela heard gunfire a few seconds later. She did not see the shooter. She ran to the door of the bar, someone let her in, and she stayed until the gunshots stopped. She went to the parking lot and was screaming, " It was D-Wacc."

[286 Neb. 864] (i) Tequila Bennett

Tequila Bennett was with Tamela outside the bar when Tamela had to sidestep Smith and Foster. Smith and Foster were wearing the same hoodies they had worn inside the bar. Smith was taking a gun from his waistband with his right hand. Tequila was at the front door of the bar when she heard gunshots. She looked back in the direction of the gunfire and saw Smith firing the gun.

(j) Terrance Edwards

Terrance Edwards was at the Legion when Smith made a statement before the shooting. He testified that he heard Smith say, " [W]e don't fuck with your kind."

On the night of the shooting, Terrance saw Smith and Foster come into the bar. Smith wore a black hoodie, and Foster wore a gray hoodie. Foster walked with a limp. After leaving the bar, Terrance saw Victor stop a fight. Smith and Foster arrived at the scene. Terrance testified that the two had switched hoodies, so Smith wore the gray hoodie, and Foster wore the black hoodie. They were both wearing their hoods up.

Terrance saw Foster shoot Victor. Terrance ran between cars and saw Smith and Foster chasing Corey. Foster limped after Smith as the two ran away. Terrance then realized he had been shot. He told police he had a good look at the person with the black hoodie, who had ponytails or braids. He told officers Smith was the shooter, meaning that Smith masterminded the shooting.

(k) Christopher Spencer

Christopher Spencer was a detective with the Omaha Police Department. He conducted approximately 26 interviews for the case. Spencer interviewed Smith and testified that Smith said he had been at the Legion by himself.

Before Foster began his cross-examination of Spencer, Smith requested a sidebar, where he moved to sever and for a mistrial on the basis that Foster would elicit impeachment evidence from Spencer that would not be admitted in a separate trial of Smith. Smith argued that the prejudice from the evidence would be so great that it could not be cured by a limiting instruction. The court overruled the motions.

[286 Neb. 865] On cross-examination of Spencer, Foster elicited impeachment evidence against Tameaka and Corey. When Smith ...

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