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State v. Newman

Supreme Court of Nebraska

April 3, 2015

STATE OF NEBRASKA, APPELLEE,
v.
TERRELL E. NEWMAN, ALSO KNOWN AS MONROE E. TERRELL, ALSO KNOWN AS EDWARD N. TERRELL, APPELLANT

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Appeal from the District Court for Douglas County: SHELLY R. STRATMAN, Judge.

Michael J. Wilson, of Schaefer Shapiro, L.L.P., for appellant.

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

WRIGHT, CONNNNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ., and MOORE, CHIEF JUDGE. HEAVICAN, C.J., not participating.

OPINION

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[290 Neb. 574] Cassel, J.

I. INTRODUCTION

This case is Terrell E. Newman's direct appeal from multiple felony convictions, including two convictions for first degree murder. Newman's convictions arose from the shooting deaths of Carlos Morales and Bernardo Noriega during a planned drug transaction. The State alleged that Newman committed the crimes with an accomplice, Derrick U. Stricklin, and the two were tried together. Newman's assignments of error relate to his identification by the State's primary witness, the sufficiency of the evidence, ineffective assistance of trial counsel, the admissibility of evidence based upon cell phone records, comments made by a prospective juror, the exclusion of statements made by a confidential informant, the scope of his cross-examination of the State's primary witness, and juror misconduct. Finding no merit to his claims, we affirm his convictions and sentences.

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II. BACKGROUND

We address Newman's and Stricklin's appeals in separate opinions. The basic facts of this case are contained in State v. Stricklin [1] and are not repeated herein, except as otherwise indicated.

As previously noted, the deaths of Morales and Noriega occurred during a planned drug transaction. One of the victims, Jose Herrera-Gutierrez, was not killed and identified Newman and Stricklin as Morales' and Noriega's killers. At trial, Herrera-Gutierrez was the State's primary witness. He testified that Morales had asked him to obtain some cocaine and that he and Noriega were supposed to deliver the cocaine [290 Neb. 575] to Morales' automobile body shop. When they arrived at the shop, they entered the shop's office to find two black males already present. The males ordered Herrera-Gutierrez, Morales, and Noriega to lie down. They subsequently shot and killed Morales and Noriega.

Newman was convicted of two counts of first degree murder, three counts of use of a deadly weapon to commit a felony, attempted intentional manslaughter, and possession of a deadly weapon by a prohibited person. He was sentenced to life imprisonment for each of the first degree murder convictions, 15 to 25 years' imprisonment for each of the three use of a deadly weapon convictions, 20 months' to 5 years' imprisonment for the attempted intentional manslaughter conviction, and 15 to 25 years' imprisonment for the possession of a deadly weapon by a prohibited person conviction. Each sentence was ordered to run consecutively.

Newman filed a timely notice of appeal-an appeal which is taken directly to this court.[2]

III. ASSIGNMENTS OF ERROR

Newman assigns, reordered and restated, that (1) the police employed unnecessary and unduly suggestive photographic lineups in order to identify him; (2) the State introduced insufficient evidence to support his convictions; and (3) his trial counsel failed to introduce the affidavit or testimony of a juror's brother regarding Newman's allegations of juror misconduct, to object to jury instructions Nos. 5, 11, and 12, and to adequately investigate his defenses.

Newman further assigns that the district court erred in (1) admitting exhibit 288 into evidence, (2) overruling his motion for mistrial due to comments made by a prospective juror, (3) excluding the statements of a confidential informant, (4) limiting the scope of his cross-examination of Herrera-Gutierrez, (5) overruling his motion for a new trial due to juror misconduct, and (6) overruling his motion to withdraw his rest and to reopen the evidence.

[290 Neb. 576] IV. STANDARD OF REVIEW

A district court's conclusion whether an identification is consistent with due process is reviewed de novo, but the court's findings of historical fact are reviewed for clear error.[3]

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

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witnesses, or reweigh the evidence; such matters are for the finder of fact. The relevant question for an appellate court 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.[4]

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.[5] 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.[6]

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.[7]

V. ANALYSIS

Newman and Stricklin assign several of the same issues as error. And as to these issues, there is no material difference in the applicable facts or law in the two appeals. Thus, we will refer to our opinion in Stricklin[8] for the disposition of their common claims. This opinion addresses only those assignments [290 Neb. 577] of error unique ...


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