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State v. Trice

Supreme Court of Nebraska

January 15, 2016

STATE OF NEBRASKA, APPELLEE,
v.
DE'ARIS R. TRICE, APPELLANT

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Appeal from the District Court for Madison County: JAMES G. KUBE, Judge.

Patrick P. Carney, of Carney Law, P.C., for appellant.

Douglas J. Peterson, Attorney General, and Kimberly A. Klein for appellee.

WRIGHT, CONNOLLY, McCORMACK, MILLER-LERMAN, CASSEL, and STACY, JJ. HEAVICAN, C.J., not participating.

OPINION

Page 291

[292 Neb. 484] Stacy, J.

I. INTRODUCTION

This is the second direct appeal brought by De'Aris R. Trice, challenging his conviction for second degree murder. In his first direct appeal, we concluded the jury had not been properly instructed on the interplay between second degree murder and sudden quarrel manslaughter.[1] We noted the step instruction used by the trial court was correct when given, but our subsequent holding in State v. Smith [2] rendered the instruction an incorrect statement of the law. We reversed the judgment and remanded the cause for another trial.

On remand, Trice waived a jury. Following a 2-day bench trial, he again was found guilty of second degree murder and again was sentenced to a prison term of 40 years to life. He timely filed this direct appeal, assigning error to various evidentiary rulings and arguing the sentence imposed was excessive. Finding no reversible error, we affirm.

II. BACKGROUND

On December 26, 2010, Timothy Warren was stabbed when a fight broke out during a party in Norfolk, Nebraska. Warren died from his injuries.

Our opinion in State v. Trice [3] recited the circumstances surrounding the stabbing and summarized the evidence adduced at Trice's first trial. In most respects, the evidence adduced at Trice's second trial was similar to that adduced at

Page 292

his first trial. We recite here only that evidence from the second trial which is relevant to the errors assigned on appeal.

[292 Neb. 485] 1. Testimony of Robyn Baldwin

In the first trial, Robyn Baldwin testified and was cross-examined. She was subpoenaed to appear as a witness in the second trial, but failed to appear. In the first trial, Baldwin testified that the day before the stabbing, she overheard her sister, Trice's girlfriend, tell him she wanted to end the relationship. Baldwin then heard Trice respond: " 'Well, if you're done with me, then I might as well just kill myself or hurt somebody . . . I'll just go murder somebody. I might as well be in jail without you in my life.'"

Roughly 1 month before Trice's second trial, the State served Baldwin with a subpoena to testify. The deputy sheriff who served the subpoena testified he called Baldwin on her cell phone and she agreed to meet him later that day to accept service. He personally served Baldwin with the subpoena.

The district court clerk who was responsible for checking in subpoenaed witnesses during the second trial testified that Baldwin had not appeared and had not telephoned the court to indicate she would be late. A Norfolk police officer who was familiar with Baldwin also testified he had " been all through" the courthouse while witnesses were showing up for trial and did not see Baldwin.

The State asked the court to find Baldwin unavailable under Neb. Rev. Stat. § 27-804(1)(e) (Reissue 2008) and offered a transcript of Baldwin's testimony from the first trial. Trice objected, pointing out Baldwin lived in the area and " had been found" previously. The trial court concluded Baldwin was unavailable and received the transcript of her testimony from the first trial into evidence over Trice's hearsay objection.

2. Testimony of Ronald Trice

Trice's brother Ronald testified and was cross-examined in the first trial but was not present for the second trial. In the first trial, Ronald testified about Trice's activities in the days leading up to the party and described what happened [292 Neb. 486] during the party, both before and after the stabbing. Ronald also testified about a conversation he had with Trice shortly after the stabbing. During this conversation, Ronald asked Trice " five or six times" whether he was responsible for the stabbing and each time Trice denied stabbing anyone. Ronald then said, " 'I don't need you to lie to me, did you do it?'" to which Trice replied, " 'Yeah, I -- I had to, I had to protect you and me.'"

About 6 weeks before the second trial, the State filed a " Certificate to Compel Attendance of Witness" seeking to have Ronald served with process in Chicago, Illinois, where it was understood he was living. Roughly 20 days before trial, the State discovered the paperwork had not arrived in Chicago due to a clerical mistake. The paperwork was immediately reissued, and the State contacted the extradition unit in Chicago to request expedited service. The extradition unit agreed to make it a " top priority" and indicated it would use investigators to locate and serve Ronald. The State stayed in contact with the authorities in Chicago up to and including the time of trial. One week before trial, Chicago authorities reported an investigator had gone to Ronald's address to attempt service. The investigator made contact there with Ronald's parents, who reported Ronald was no longer in Illinois. ...


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