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State v. Stevens

Supreme Court of Nebraska

March 27, 2015

STATE OF NEBRASKA, APPELLEE,
v.
MALIQUE A. STEVENS, APPELLANT

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Appeal from the District Court for Lancaster County: JODI NELSON, Judge.

Matthew K. Kosmicki for appellant.

Jon Bruning, Attorney General, and Melissa R. Vincent for appellee.

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

OPINION

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[290 Neb. 462] Stephan, J.

After a jury trial, Malique A. Stevens was convicted of robbery and sentenced to 6 to 10 years' imprisonment. A codefendant, Alfredo V. Dominguez, was tried with Stevens and convicted of the same crime. In this appeal, Stevens challenges various procedural and evidentiary rulings. We find no merit in any of his assignments of error and therefore affirm his conviction and sentence.

BACKGROUND

On the evening of December 3, 2012, Janelle Yaunk parked her car in the lot of an apartment complex in north Lincoln, Nebraska, where a friend resided. As she walked toward the entrance of the building, she was approached by a young man who displayed a gun. Two other young men soon joined him. All three wore hoods over their heads and foreheads, and the rest of their faces, except their eyes, were covered with bandannas.

The man with the gun ordered Yaunk to give him money. When she said she had none, he struck her in the face with the gun, and she sat on the ground. One of the other two men took her car keys and cell phone from her. The men then made her start the car for them before they ordered her out of the vehicle and drove away in it.

Yaunk's friend arrived soon after, and they called the police. Shortly after the robbery was reported, a Lincoln police officer [290 Neb. 463] observed the stolen car and attempted to stop it. Three individuals in the car jumped out of it while it was still moving and ran away. The officer attempted to give chase but was unable to apprehend them. A cell phone that belonged to Orlando Neal was found in the abandoned vehicle. A pellet gun was found approximately 30 feet from the vehicle.

Neal eventually confessed to the robbery and was subsequently convicted and sentenced. In his initial statements to the police, he implicated Stevens and Dominguez as the other two participants in the robbery. In a subsequent deposition, however, Neal stated Stevens and Dominguez were not involved. Investigators found Stevens' fingerprints on the exterior of Yaunk's car, and this evidence was admitted at trial. Investigators also determined

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that DNA found on the pellet gun came from Dominguez, and this evidence was admitted at trial.

Both Stevens and Dominguez were 15 years old at the time the robbery was committed. They were each charged with one count of robbery in separate informations filed in the district court for Lancaster County. The cases were then consolidated for trial. Stevens filed a motion to transfer his case to juvenile court. After conducting an evidentiary hearing on the motion, the district court found good cause to deny the transfer. After the DNA evidence implicating Dominguez was discovered, Stevens filed a motion requesting his trial be severed, but the motion was denied.

Yaunk testified and described the robbery. She identified Stevens and Dominguez in court as two of the perpetrators. Timothy Robinett, a Lincoln cabdriver, testified that the night of the robbery, he had been at a Walgreens store near the scene of the robbery and three young men had attempted to hire his cab. Over Stevens' objection, Robinett testified that he was 50- to 75-percent sure that Stevens was one of the young men. Robinett was unable to identify the others.

The State also called Dakota Grant, Stevens' brother. Grant was arrested on December 4, 2012, for the robbery, along with Stevens and Dominguez. He testified that before they were arrested, he was with Stevens and Dominguez and heard them talking, but did not hear what they were saying. He also [290 Neb. 464] testified that he did not remember talking to a police officer after he was arrested. After a court recess, Grant stated that on December 4, Stevens and Dominguez were looking at a newspaper Web site and reading and talking about an article describing the robbery and carjacking. The State asked Grant whether he had told the police that Stevens and Dominguez had been talking about the actual robbery, not the article, but Dominguez' objection to the question was sustained by the court.

Neal also testified at trial. He testified that he had come to Lincoln a few days before December 4, 2012, to meet up with Stevens and Dominguez. He testified that he was at the Walgreens store with Stevens and Dominguez the evening of December 3 and that they tried to get a cab, but that then they split up and went separate ways. Neal described how he committed the robbery of Yaunk and stated that the two persons with him at the time were not Stevens and Dominguez. He admitted that he was stealing the car in order to get to Dominguez' home, where he was staying, and he stated that he did not remember telling the police at the time of his arrest the names of the persons he was with during the robbery. Over objection, Neal was allowed to testify that he originally told the police that Dominguez was with him at the time of the robbery. Neal also testified that he used Stevens' name when talking to the police, but emphasized that he never said Stevens took part in the robbery.

After hearing all the evidence, the jury convicted both Stevens and Dominguez of robbery. Stevens was subsequently sentenced to 6 to 10 years' ...


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