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State v. Patton

Supreme Court of Nebraska

April 11, 2014


Page 573

[Copyrighted Material Omitted]

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Appeal from the District Court for Douglas County: J. MICHAEL COFFEY, Judge.

Thomas C. Riley, Douglas County Public Defender, for appellant.

Jon Bruning, Attorney General, and Nathan A. Liss for appellee.



Page 575

[287 Neb. 901] Stephan, J.

A jury convicted Marqus J. Patton of first degree murder and use of a deadly weapon to commit a felony as a result of his involvement in a fatal shooting which occurred during a home invasion robbery. Two key prosecution witnesses were participants in the crime, and another was the victim's former girlfriend. On appeal, Patton contends the trial court erroneously restricted his cross-examination of these witnesses and otherwise impeded his efforts to impeach them in violation of his

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constitutional rights of confrontation and due process of law. We conclude there was no reversible error and affirm.


On July 6, 2011, Patton was at the home of his friend Nicholas Ely. Also present were Ryan Elseman and Emily G., a juvenile. The group decided to go swimming, and Drake Northrop arrived at around 11:45 a.m. to give them a ride. After setting out in Northrop's vehicle, they decided to stop to buy marijuana from Kristopher Winters before going swimming.

Emily directed the group to Winters' home, where she had been before. She testified that while they were in the car, she heard the others discussing a plan to rob Winters. Northrop testified that it was Ely and Elseman who devised the plan to rob Winters and recalled them saying it would be an easy " lick," a slang term for robbery. Northrop further testified that both he and Patton agreed with the plan.

Northrop parked the car around the corner from Winters' home. Emily went to the door alone and agreed to send a text message to the others when she was inside. While near Winters' home, Emily encountered Winters' friend Eric Brusha. Brusha called Winters on his cell phone, and Winters let Emily and Brusha in the house. Emily then sent a text message to Elseman stating that she was inside.

A few minutes later, Ely, Elseman, Patton, and Northrop entered Winters' home. Elseman and Patton both carried firearms. When Elseman held his weapon up, Winters rushed at Elseman. Patton struck Winters as he fought with Elseman, and then Winters struck Patton with a chair. Patton yelled for [287 Neb. 902] Elseman to shoot, and a gunshot struck Winters in the neck, causing his death. As Winters fell, Ely, Elseman, Patton, and Northrop ran to the parked vehicle. Emily was left behind.

Ely, Elseman, Patton, and Northrop left the scene in Northrop's vehicle. Elseman sent Emily a text message instructing her to go to a nearby restaurant where someone would pick her up. The others went to Patton's apartment. On the way there, Patton stated that a bullet must have grazed him and showed the others a bloody injury on his stomach. DNA testing later showed blood found in Northrop's car was a match for Patton.

Meanwhile, Brusha called the 911 emergency dispatch service and was present at the scene when investigators arrived. An investigating officer escorted Brusha to the police station for an interview. As they drove, Brusha saw Emily walking and identified her as a participant in the incident. Emily was detained and taken to the police station.

Emily had blood spatters on her shirt, leg, and shoes. She initially was uncooperative, but eventually told investigators what happened and showed them where Ely lived. Patton was arrested on the morning of July 8, 2011. Northrop was arrested on July 14. Northrop originally denied involvement, but eventually confessed and implicated Ely, Elseman, Patton, and Emily.

Patton, Emily, and Northrop were all charged with first degree murder. Emily and Northrop agreed to testify against Patton, and many of the facts summarized here came into evidence through their testimony. In addition, Cassandra Moyers, Winters' former girlfriend, testified that 2 days before the robbery, she had been at a party with Ely, Elseman, Patton, and Northrop. At that time, Patton asked Moyers to help him devise a plan to rob Winters, who was a known drug dealer.

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Patton was convicted and sentenced to life imprisonment on the murder count and to 5 to 15 years' imprisonment for use of a deadly weapon to commit a felony. He filed this timely appeal. Additional facts will be set forth in our discussion of Patton's specific assignments of error.


Patton assigns, restated, renumbered, and consolidated, (1) that the trial court violated his constitutional right to confront the witnesses against him by limiting his cross-examination of Emily, Northrop, and Moyers; (2) that the trial court violated his due process rights by precluding him from presenting evidence that the State had made tacit plea agreements with Emily and Northrop; (3) that the State violated his due process rights by failing to disclose it made such tacit plea agreements; and (4) that the trial court erred in refusing to receive evidence of prior robberies committed by Emily and Elseman.


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 article I, § 11, of the Nebraska Constitution and reviews the underlying factual determinations for clear error.[1] The determination of whether procedures afforded an individual comport with constitutional requirements for procedural due process presents a question of law.[2] When issues on appeal present questions of law, an appellate court has an obligation to reach an independent conclusion irrespective of the decision of the court below.[3]

The exercise of judicial discretion is implicit in the determinations of relevancy under Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403 (Reissue 2008), and a trial court's decisions regarding them will not be reversed absent an abuse of discretion.[4] 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. 404(2), Neb. Rev. Stat. ยง 27-404(2) ...

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