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State v. Tolbert

Supreme Court of Nebraska

August 1, 2014

STATE OF NEBRASKA, APPELLEE,
v.
ANGELO TOLBERT, APPELLANT

Page 75

Appeal from the District Court for Douglas County: W. MARK ASHFORD, Judge.

AFFIRMED.

Thomas C. Riley, Douglas County Public Defender, Scott C. Sladek, and Brenda J. Leuck for appellant.

Jon Bruning, Attorney General, and Kimberly A. Klein for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ.

OPINION

Page 76

[288 Neb. 733] Heavican, C.J.

INTRODUCTION

Angelo Tolbert was convicted of first degree murder, first degree assault, and two counts of use of a deadly weapon to commit a felony. He was sentenced to life imprisonment on the murder count and 40 to 50 years' imprisonment on each of the other three counts, to be served consecutively. Tolbert appeals. We affirm.

FACTUAL BACKGROUND

In the early morning hours of October 21, 2012, a group of teenagers -- Montrell Wiseman, Desjuha Wilkinson, Shamika Parks, and Onticha Gresham--were all gathered in front of the Gresham residence near 21st and Binney Streets in Omaha, Nebraska. The group noticed a van drive past slowly on two occasions. After the van's second pass, the group became nervous and decided to go into the house. As the group made its way into the house, two shots were fired. One shot

Page 77

struck and injured Wilkinson. Another struck and killed Wiseman. It was later determined that due to their red-colored clothing, the group of teenagers was mistakenly targeted by the shooter as being members of a rival gang.

A neighbor, Vincent Anderson, witnessed the shooting. Anderson testified that he heard a vehicle coming up the alley behind his house, so he looked out the window and saw a van. Anderson testified that he went outside because he was concerned that the van was there to dump trash at a nearby condemned house. As Anderson exited his house and headed into the alley, he heard a " boom," saw a flash, and witnessed an individual located behind the van's driver, holding a shotgun. In addition, Parks testified that she also saw a flash coming from the driver's side of the vehicle and that she thought the sliding door to the van might have been open.

After the shooting, the van crashed into a nearby pole. Witnesses reported seeing four individuals flee the van following the crash, but one returned. A fifth individual never left the scene. Parks also testified that she witnessed some of the individuals in the van flee following the shooting and that she thought one might have been carrying " a long gun."

[288 Neb. 734] Anderson also testified that he saw one of the individuals, though not the driver, leave the van with " something long" that might have been a gun. And another neighbor testified that the fourth individual to leave the van was " carrying something."

The van was registered to Constance Brown. Brown testified that on October 21, 2012, she lived near 42d and Ohio Streets in Omaha. Besides her children, Brown testified that she lived with her sister and several nephews, including Matthew Saunsoci; her brother Francis Cayou; and Joshua VanAckeren. Brown testified that in the early morning hours of October 21, she loaned her van to VanAckeren and Cayou, so they could go buy alcohol. Brown testified that in addition to VanAckeren and Cayou, Tolbert and Adam Gamble were at her home, but that she was not aware of who was with VanAckeren and Cayou when they left in her van.

The State's two primary witnesses at trial were Cayou and Gamble. Gamble testified first. He testified that he was with VanAckeren, Tolbert, and Saunsoci on October 21, 2012. He indicated that after spending some time at the 42d and Ohio residence, the group went " riding around" in Brown's van. According to Gamble, VanAckeren was driving; Cayou was in the front passenger seat; Tolbert was seated behind the driver in the middle row; he, Gamble, was seated in the middle row behind the passenger; and Saunsoci was in the back seat. Gamble testified that Cayou had a shotgun.

Gamble testified that after the group had driven around for approximately 20 minutes, they pulled up beside two people standing next to a car. At this point, Cayou handed Tolbert the gun, VanAckeren stopped the van, and Tolbert got out and shot at the people. The shooting was unsuccessful, however, because the shotgun still had the safety on. According to Gamble, upon returning to the van, Tolbert handed the shotgun back to Cayou, who took it off safety. VanAckeren then drove off.

Gamble then testified that VanAckeren stated they were headed " down to the Bottom area," which was rival gang territory. Upon arriving in that area, VanAckeren and Cayou [288 Neb. 735] spotted some individuals wearing red shirts. Cayou again handed Tolbert the gun. According to Gamble, Tolbert ...


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