Appeal from the District Court for Douglas County: KIMBERLY MILLER PANKONIN, Judge.
Thomas C. Riley, Douglas County Public Defender, and Kelly M. Steenbock for appellant.
Jon Bruning, Attorney General, and Melissa R. Vincent for appellee.
HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ.
[290 Neb. 827] Heavican, C.J.
I. NATURE OF CASE
Miguel Avalos and two of his sons were shot to death in their Omaha, Nebraska, home during an apparent home invasion robbery. Avalos was a known drug dealer. The attempted robbery was allegedly orchestrated by Greg Logemann, another drug dealer in the area. Logemann contacted the defendant, Anthony D. Davis, and another individual, Timothy Britt, about the opportunity to rob Avalos.
At Davis' trial, multiple witnesses testified to observing that Logemann had pointed out the Avalos home to Davis earlier
in the day and also testified that Davis and Britt were at the Avalos home at the time the murders took place. One [290 Neb. 828] witness made an unsolicited comment that Davis had previously been in prison. Another witness' testimony differed substantially from her earlier deposition testimony regarding incriminating statements made by Davis about the murders. On both occasions, Davis moved for a mistrial. The district court denied both motions.
Davis was convicted of three counts of first degree murder and three counts of use of a deadly weapon to commit a felony, and he was sentenced to three life sentences and 75 to 90 years' imprisonment. Davis now appeals. We determine that the district court did not abuse its discretion in overruling Davis' two motions for mistrial and that the verdicts were not based on evidence that was insufficient to prove Davis guilty beyond a reasonable doubt.
On July 9, 2012, Avalos and two of his sons were killed inside Avalos' home in Omaha. All three had been shot multiple times and died as a result of their wounds. Avalos' oldest son was in the house in a downstairs bedroom with his wife and child at the time the three were shot upstairs. He testified that he woke up to the sound of gunshots at approximately 3:45 a.m. He locked the door to the bedroom and called the 911 emergency dispatch service, remaining on the telephone until police arrived. Police observed signs of forced entry at one of the entrances to the residence. Inside Avalos' bedroom within the residence, police discovered methamphetamine and over $5,000 in cash. A defaced .40-caliber semiautomatic pistol was also found in the residence.
The State alleges that the three victims were killed by Davis and Britt during an attempted robbery. Logemann testified that he had orchestrated the robbery. Logemann and Avalos were both drug dealers, and Logemann believed Avalos was an easy target. Logemann had previously tried to eliminate Avalos as a competitor by assisting the Omaha Police Department in making controlled drug buys from Avalos. In exchange for his testimony at trial, Logemann was granted use immunity and not charged with the murders. Logemann was charged [290 Neb. 829] with criminal conspiracy to commit robbery, a Class II felony. Logemann admitted to lying to the detectives the first time he spoke with them about the murders, but testified that he told the detectives everything he knew the second time he was interviewed.
Logemann testified that on July 8, 2012, he offered to show Davis where Avalos lived. Davis contacted Crystal Branch, an acquaintance, and asked for a ride. Branch then asked her roommate, Charice Jones, if she would be willing to give Davis a ride. Jones agreed. Branch and Jones drove in Jones' vehicle to Davis' apartment in Council Bluffs, Iowa. According to both Branch and Jones, the two picked up Davis and the group then picked up Logemann.
Branch and Jones both testified that Logemann had Jones drive past the Avalos residence and that Logemann pointed out which house belonged to Avalos. While in the vehicle, neither Branch nor Jones heard anyone mention a potential robbery. According to Branch and Jones, Logemann told them that Logemann saw his sister outside of Avalos' house. Logemann's sister, who purchased drugs from Avalos, testified that she was at Avalos' home on the evening of July 8, 2012, and had observed a " weird dark colored truck" slowly drive by the residence.
Davis, Britt, Branch, and Jones then returned to Jones and ...