Petition for further review from the Court of Appeals, INBODY, Chief Judge, and IRWIN and RIEDMANN, Judges, on appeal there to from the District Court for Hall County, WILLIAM T. WRIGHT, Judge.
Gerard A. Piccolo, Hall County Public Defender, and Matthew A. Works for appellant.
Jon Bruning, Attorney General, and Melissa R. Vincent for appellee.
HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ.
[289 Neb. 185] Cassel, J.
William W. Matthews was convicted of six felonies arising from a shooting involving multiple victims in Grand Island, Nebraska. On appeal, the Nebraska Court of
Appeals reversed his convictions for attempted first degree murder and use of a deadly weapon to commit a felony with respect to Kevin Guzman and remanded the cause for a new trial. We granted the State's petition for further review.
The Court of Appeals determined that Matthews' self-defense claim was prejudiced by the exclusion of evidence of Guzman's aggressive and violent character. We disagree that the exclusion of the character evidence caused Matthews prejudice. There was ample evidence before the jury to establish that Guzman was the first aggressor. Thus, the character evidence was cumulative, and its exclusion was harmless error. [289 Neb. 186] We reverse the decision of the Court of Appeals and remand the cause with direction that the relevant convictions and sentences be reinstated.
On April 21, 2011, a witness was driving on Eddy Street when he observed a large crowd of people near 11th and 12th Streets walking toward the center of Eddy Street from the west. The people in the crowd appeared to be arguing. The witness observed a man and woman standing on the east side of Eddy Street, near a garage and an alley. The man was waving a gun, which appeared to be pointed toward the woman. The witness went around the block to obtain a second look, and upon his return, he observed that the crowd had proceeded to the center of the street. A man from the crowd pulled out a gun, waved it, and fired shots at the man and woman. The witness described that at the time the shots were fired, the man near the garage had his gun out, but it was at his side and not pointed in any specific direction. The witness identified Matthews as the shooter at trial.
Another witness observed the altercation while sitting in a parked vehicle. The witness heard a man and woman arguing and yelling across the street. The witness heard the man say, " 'Bring it on . . . I'm packing.'" She saw the man lift up his shirt and " flash" a gun. The man took the gun from his waistband and pointed it in the direction of the other side of the street. Two other individuals came running into the middle of the street, and one of the individuals started shooting. The shooter initially fired into the air, but subsequently lowered the gun to chest level and fired toward the man and woman. The witness first testified that she could not remember what the man and woman were doing when the shots were fired. She later testified that they were standing near some bushes facing the shooter. But during cross-examination, the witness admitted that she was unsure whether the man and woman had proceeded down the alley when the shots were fired. The witness identified Matthews as the shooter at trial.
Guzman, the man with the woman on the east side of Eddy Street, was called as a witness for the State at trial. However, [289 Neb. 187] when asked about the altercation with Matthews, Guzman stated, " You know something, I plead the 5th." After a break to allow Guzman to speak with his attorney, Guzman returned to the stand and testified that he had no recollection of the events of April 21, 2011. On cross-examination, Guzman admitted that one of the reasons for his lack of memory was that he was usually under the influence of drugs and alcohol in April 2011. Matthews' counsel asked Guzman whether he was aggressive and violent while using drugs and alcohol in the following exchange:
[Matthews' counsel:] [Y]ou were constantly under the ...