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State v. Russell

Supreme Court of Nebraska

January 15, 2016

STATE OF NEBRASKA, APPELLEE,
v.
DARNELL L. RUSSELL, APPELLANT

Page 10

Appeal from the District Court for Douglas County: GARY B. RANDALL, Judge.

Daniel R. Stockmann for appellant.

Douglas J. Peterson, Attorney General, and Austin N. Relph for appellee.

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

OPINION

Page 11

[292 Neb. 502] Wright, J.

NATURE OF CASE

Darnell L. Russell appeals from his conviction for conspiracy to commit unlawful possession with intent to deliver a controlled substance, crack cocaine. Russell claims the court erred in allowing a police officer to testify concerning the meaning of certain cell phone calls and text messages between Russell and other persons involved in the drug conspiracy. He also claims the court erred in allowing a witness to testify despite the State's failure to timely disclose the person's status as a witness. Finally, Russell claims the court erred in convicting him of a Class IB felony instead of a Class II felony and by imposing an excessive sentence.

SCOPE OF REVIEW

In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial discretion is involved only [292 Neb. 503] when the rules make discretion a factor in determining admissibility. State v. Stricklin, 290 Neb. 542, 861 N.W.2d 367 (2015). 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. Id.

Trial courts have broad discretion with respect to sanctions involving discovery procedures, and their rulings thereon will not be reversed in the absence of an

Page 12

abuse of discretion. State v. Alford, 278 Neb. 818, 774 N.W.2d 394 (2009).

Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach an independent conclusion irrespective of the determination made by the court below. State v. Wang, 291 Neb. 632, 867 N.W.2d 564 (2015).

FACTS

Background

The Greater Omaha Safe Streets Task Force is a coalition of local, state, and federal law enforcement agencies that conducts long-term investigations related to narcotics and violent crime. In the summer of 2012, the task force began an operation to investigate the distribution of crack cocaine in Omaha, Nebraska. Approximately 15 people were targeted during the investigation, 8 of whom were ultimately arrested, including Russell.

Russell was charged with conspiracy to commit unlawful possession with intent to deliver a controlled substance, crack cocaine, under Neb. Rev. Stat. § 28-202 (Reissue 2008), a Class IB felony. He was also charged with being a habitual criminal under Neb. Rev. Stat. § 29-2221 (Reissue 2008), but that charge was not pursued.

Pretrial Motions

On the morning that Russell's trial was set to begin, he filed a motion to continue as well as a motion in limine to exclude the testimony of F.L., a confidential informant. Both motions [292 Neb. 504] were based on Russell's assertion that F.L.'s identity was not timely disclosed, in violation of the court's discovery order. During a hearing on the motions, Russell's counsel explained that he had received police reports during the discovery process detailing the work of two separate confidential informants, but was advised as to the identity of only one of them. Ten days before trial, Russell received the State's notice to endorse two additional witnesses, one of whom was F.L. However, it was not until 4 days prior to trial that Russell's counsel was first advised that F.L. was the identity of the second confidential informant. Russell argued that because F.L.'s identity was not timely disclosed, he was unable to properly investigate F.L. prior to trial, and that therefore, a continuance or exclusion of F.L.'s testimony was appropriate.

In response, counsel for the State asserted that approximately 1 month before trial, he advised Russell's counsel that the State would be presenting testimony from two confidential informants at trial, one of whom Russell's counsel had already deposed. Counsel for the State inquired at that time whether Russell wished to depose the other confidential informant, which Russell's counsel declined to do. Counsel for the State further explained that he filed a notice to endorse F.L. as a witness approximately 10 days before trial, as soon as he realized that F.L.'s name was not included on the initial list of endorsements. The State argued that there was no prejudice to the defense because F.L. would not ...


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