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Appeal from the District Court for Platte County: ROBERT R. STEINKE, Judge.
Mark M. Sipple and Erik C. Klutman, of Sipple, Hansen, Emerson, Schumacher & Klutman, for appellant.
Douglas J. Peterson, Attorney General, and James D. Smith for appellee.
HEAVICAN, C.J., WRIGHT, CONNOLLY, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ., and MOORE, Chief Judge.
[292 Neb. 837] Wright, J.
I. NATURE OF CASE
Eric M. Henry was convicted of felony murder, use of a deadly weapon to commit a felony, and conspiracy to commit robbery for his involvement in the stabbing death of Steven T. Jorgensen. He was sentenced to consecutive terms of life imprisonment, 40 to 50 years' imprisonment, and 10 to 20 years' imprisonment, respectively.
[292 Neb. 838] On appeal, Henry assigns error to the overruling of various pretrial motions, including a motion in limine, a motion for a bill of particulars, and a motion to sever. He also challenges the admission and handling of certain evidence and the giving of an instruction. We affirm.
1. Criminal Charges
On December 20, 2013, Henry was charged by amended information with four counts. Count I alleged that he committed the first degree murder of Jorgensen " in the perpetration of or attempt to perpetrate a robbery." Count II charged use of a deadly weapon to commit a felony. Count III charged possession of a deadly weapon (brass or iron knuckles) by a prohibited person. Count IV charged criminal conspiracy to commit robbery. Specifically, count IV alleged that
on or about May 17 or May 18, 2013, in Platte County, Nebraska, . . . Henry, with the intent to promote or facilitate the commission of felony robbery, did agree with one or more persons to engage in the result specified by the definition of the offense of robbery, and he or another person with whom he conspired committed an overt act in pursuance of the conspiracy, including at least one of the following overt acts:
1) Transported or aided the transporting of Quentin Critser from Lincoln to Platte County;
2) Attempted to obtain a gun;
3) Gave iron or brass knuckles to Quentin Critser; or
4) Went to the residence of a potential robbery victim or victims[.]
Henry moved for a bill of particulars stating " with precision and specificity the name of the 'potential robbery victim or victims' as set forth in Count IV of its Amended Information." The district court overruled the motion, after which Henry moved to sever count IV from the other counts. The motion to sever was also overruled.
[292 Neb. 839] 2. Motion in Limine
Prior to trial, Henry filed a motion in limine challenging the admissibility of any evidence of the autopsy performed on Jorgensen's body, including any testimony of Dr. Robert Bowen, the pathologist. Bowen had performed an autopsy on Jorgensen's body on May 23, 2013. On May 24, the county attorney for Platte County, Nebraska, had authorized, at the request of Jorgensen's family, the release of Jorgensen's body for cremation.
Henry alleged that it would be a violation of due process and Neb. Rev. Stat. § 29-1913 (Reissue 2008) to permit the State to adduce evidence derived from examining and testing the body, because it had been destroyed before Henry had the opportunity to have it independently examined or tested. He claimed that in releasing the body for cremation, the Platte County Attorney had acted intentionally but not in bad faith.
Aside from photographs and the autopsy results, several tissue samples were apparently retained. Fingerprints were also taken, Jorgensen's clothing and a gag were collected, swabs and clippings from his fingernails were taken, and hairs were collected. However, a full accounting of what body parts or samples may have been retained was not given.
Henry did not file a motion under § 29-1913(1) asking the court to make available to the defense the evidence necessary to make tests or analyses of " ballistics, firearms identification, fingerprints, blood, semen, or other stains" like those conducted by the prosecution. Henry did not advise the prosecution that he wished the body preserved for an independent autopsy, because the body was cremated prior to bringing charges against Henry. The district court overruled Henry's pretrial motion in limine.
3. Jury Trial
The jury trial of Henry took place over 7 trial days. The parties stipulated that Henry had been convicted of a felony in 2007. They also stipulated that Jorgensen's DNA was the only DNA identified on any of the items seized from the crime [292 Neb. 840] scene, including the knife in Jorgensen's throat and the gag in his mouth. These items were tested for fingerprints, but they yielded no identifiable prints.
(a) Discovery of Jorgensen
Officer Dale Ciboron testified that he and two other officers with the police department in Columbus, Nebraska, discovered Jorgensen's body after being dispatched to Jorgensen's house for a welfare check on May 22, 2013. Jorgensen had not reported to work for several days. Jorgensen's supervisor testified that he last saw Jorgensen at work on May 17 and that the date was a payday. Jorgensen did not show up at work as expected on either Saturday or Monday.
Upon entering Jorgensen's house, Ciboron found Jorgensen's body on the floor between the kitchen and the living room area. The house was in disarray. There was a knife protruding from Jorgensen's neck, and a gag in his mouth. Ciboron described dried blood on Jorgensen's head.
Three officers with the Columbus Police Department arrived at the scene to investigate shortly after Ciboron. They testified
that Jorgensen's body had started to decompose. One officer testified that based on her observations of decay and lividity, Jorgensen had been dead " for several days." Bloodstains were found throughout the house, including the couch, the floor, a door, baseboards, and the kitchen water faucet. Another officer explained that the blood had soaked through the carpet and padding to the wood floor underneath.
A video and photographs of the scene and Jorgensen's body were entered into evidence without objection. Jorgensen's head and chest appeared covered in blood, and the photographs show numerous apparent stab wounds to the chest, arms, hands, and neck.
Prior to Bowen's testimony, Henry renewed his motion in limine, objecting to " the entirety of the testimony." Exhibits to be offered into evidence during Bowen's testimony were [292 Neb. 841] not explicitly referenced in Henry's renewed objection. Henry again stated that he made no claim that the State acted in bad faith in releasing Jorgensen's body for cremation.
The prosecution noted that the autopsy report, photographs, and " [t]issue slides" had been made available to Henry for independent examination by an independent pathologist appointed for Henry. Henry explained that he did not have an expert who would testify differently as to Jorgensen's cause of death, and Henry did not appear to contest the time of death. Nevertheless, Henry stated that there were " issues." Henry never elaborated on what those issues were.
The district court overruled the renewed motion and allowed Bowen to testify. In denying the motion, the court noted that the body was cremated pursuant to a request by Jorgensen's family and that the detailed autopsy results, photographs, and tissue samples were available for examination by Henry's own pathologist. The court also noted that Henry did not contest, based on either Bowen's examination or his pathologist's review, Jorgensen's cause of death.
Bowen testified that the autopsy revealed 14 stab wounds on Jorgensen's neck, chest, and abdomen, and numerous " blunt force injuries" from being struck. There were lacerations on the back of Jorgensen's head consistent with being hit with brass knuckles. Bowen determined Jorgensen had died through a combination of blood loss and collapsed lungs, after receiving stab wounds to the chest, and that his death was a homicide. Bowen testified that Jorgensen had died somewhere between 24 hours and 4 days before the autopsy, which was performed on May 23, 2013.
Due to the decomposition, Bowen was unable to remove blood from the body, but he was able to test the decomposition fluid found in the chest. Bowen testified that decomposition fluid is more difficult to interpret than blood. On cross-examination, Bowen admitted that tests of samples or specimens of Jorgensen's organs, such as his brain, kidney, or liver, would have probably been more accurate.
[292 Neb. 842] The tests of the decomposition fluid indicated there was a significant amount of methamphetamine in Jorgensen's body at the time of death. Nevertheless, it was Bowen's opinion that the cause of death was not methamphetamine. Bowen explained that there was extensive hemorrhaging in the body that could not have occurred if Jorgensen had first died of methamphetamine.
During Bowen's testimony, a wound chart showing 14 stab wounds on Jorgensen's neck, chest, and abdomen was entered into evidence after Henry's counsel expressly stated he had no objection. In
addition, 14 autopsy photographs prepared by Bowen were entered into evidence, again after Henry's counsel stated there was no objection. The autopsy report was not proffered.
Vanessa Benson testified that on May 28, 2013, she informed the police department in Lincoln, Nebraska, that she suspected her boyfriend, Quentin Critser, had been involved in Jorgensen's death. Critser was staying with Benson and was a friend of Henry's. She reported that from May 16 to 18, Critser had been in Columbus with Henry and a woman by the name of Kimberly Henderson. On May 16, Henry and Henderson came to her apartment in Lincoln to pick up Critser. Based largely on text messages that Critser sent from Benson's cell phone to Henry, Benson knew that Henry and Critser planned to commit a robbery in Columbus. Benson was upset about this, and she and Critser fought.
Critser returned on May 18, 2013, after stopping first in Grand Island, Nebraska. Benson testified that after Critser returned from Columbus, he had Jorgensen's debit card and keys. Benson saw Critser dispose of the keys in a drainage ditch. Benson testified that she led the police to where Critser had hidden Jorgensen's debit card outside of her apartment building. Benson testified without objection that Henry had texted her several times asking her why she did not like him. She never responded.
[292 Neb. 843] (d) Critser
Critser was a witness against Henry as part of his plea agreement. Critser testified that he met Henry while they were both incarcerated for previous convictions and that they developed a friendship after their release. In May 2013, Critser and Henry lived in Lincoln and Columbus, respectively. They kept in touch mainly via text messages.
Critser did not have his own cell phone and used Benson's cell phone to send messages to Henry. Critser testified that Henry had his own cell phone and that the number associated with Henry's cell phone was programmed into Benson's cell phone under the name " E."
Critser testified that in May 2013, Benson's cell phone received a series of text messages from Henry asking Critser to come to Columbus for the purpose of " [c]ommit[ting] a crime of some sort" to obtain between $3,000 to $10,000.
Critser stated that he had no doubt the messages were from Henry. They showed up on Benson's cell phone as being sent from " E," and Critser could also tell the texts were from Henry by the context and because he knew how Henry talked. Critser also explained that he did not communicate with anyone else who lived in Columbus.
Pursuant to the plan developed by Critser and Henry, on May 16, 2013, Henry and Henderson picked up Critser in Lincoln and took him back to Columbus. Critser described without objection that he and Benson argued before he left. Benson did not want Critser to participate in the robbery and said that he was not welcome to come back if he did.
Critser testified that during the drive to Columbus, he and Henry discussed their plans to rob a drug dealer named " Tony." Critser also testified that he and Henry " were off and on talking about [the robbery of Tony] the whole time" they were in Columbus. While Critser was in Columbus with Henry, he used Henry's cell phone to stay in touch with Benson.
Critser said that he, Henry, and Henderson spent much of the evening of May 16, 2013, looking for a gun for Henry
to use [292 Neb. 844] in the robbery of Tony. Sometime on May 17, Henry found a gun for sale by a man called " Cowboy," but he needed money to buy it. Critser testified that he tried to convince Henry that they could rob Tony without a gun, but Henry was " adamant about having a gun to do it."
Because Jorgensen owed Henry money and because Henderson knew that Jorgensen would get paid that day, a plan developed " to go over there and collect some money" in order to buy the gun they would use to rob Tony. Critser had been aware that Henry had " fronted some people in Columbus some meth and they owed him money and he wanted me to come beat them up," but he did not know if one of those people was Jorgensen.
Critser testified that around 6 p.m. on May 17, 2013, he, Henry, and Henderson went to Jorgensen's house. Soon after they got there, a fight broke out between Jorgensen and Henry. Critser joined the fight, punching Jorgensen in the head with brass knuckles and choking Jorgensen until he passed out. At that point, Henry ordered Critser to tie Jorgensen's feet together and then go into another room. Critser complied.
After Critser left the room, Henry was alone with Jorgensen for some period of time. At some point, Henderson left. When the State attempted to adduce testimony as to what conversations took place before Henderson left, Henry objected on hearsay grounds. During a discussion outside the presence of the jury, Henry stated that he understood the State's conspirator exclusion to the hearsay rule, but that there was only evidence of a conspiracy to rob Tony, not Jorgensen. The State responded that the conspirators were robbing Jorgensen in order to buy a gun with which to rob Tony, and so it was all in furtherance of the same conspiracy. The court overruled the objection and found that the coconspirator exclusion to the hearsay rule set forth in Neb. Rev. Stat. § 27-801(4)(b) (Reissue 2008) applied. Critser thereafter testified that Henderson said she was leaving to withdraw money from Jorgensen's account with his debit card and that she would be right back.
[292 Neb. 845] Henderson returned from the automatic teller machine (ATM) approximately 10 to 15 minutes later. Henderson and Critser joined Henry in the kitchen. Henderson said she had withdrawn $100.
Critser testified that at that time, he witnessed Henry " stab Jorgensen in the neck five times." Critser testified that Henry threatened him when Critser " freaked out" about the stabbing, and Critser assured Henry that " you ain't got nothing to worry about." They wiped things down to remove possible fingerprints and left.
The day after the murder, May 18, 2013, Henry and Critser continued to discuss trying to obtain a gun. While taking Critser back to Lincoln, they looked for, but were unable to obtain, a gun in Grand Island. Critser testified that he did not explicitly agree with Henry's plan to go immediately back to Columbus to rob Tony. Still, Critser told Henry that he had a " buddy" he could ask about getting a gun.
During the journey through Grand Island and then to Lincoln, Critser mentioned to Henry the knife left in Jorgensen's neck. Without objection, Critser testified that he and Henry discussed what to do about the knife. Henry determined that he must go back and retrieve the knife, apparently because no one had wiped fingerprints off of it. Critser was going to give Henry the keys to Jorgensen's house that were in the bag containing their bloodstained clothing.
Critser testified that when they arrived in Lincoln, Henry tried unsuccessfully to withdraw money from Jorgensen's debit card at an ATM that did not have video surveillance. Henry left Lincoln, leaving Critser in possession of Jorgensen's debit card. He directed Critser to try after midnight to withdraw money from the account. Critser was also left with a bookbag containing their bloodstained clothes and the keys to Jorgensen's house. Henry told Critser to get rid of the clothes. Henry planned on retrieving the keys, but forgot to do so.
On May 19, 2013, Critser attempted to withdraw cash with Jorgensen's debit card, but was unsuccessful. Later that same day, [292 Neb. 846] Critser tried again to withdraw money with the debit card, but was unsuccessful. Critser testified that he hid Jorgensen's debit card in the bushes outside Benson's apartment and put the clothes in a Dumpster. He eventually threw the keys down different sewers in Lincoln. Critser testified that he did not actively look for a gun.
Henderson also testified against Henry as part of a plea agreement. Henderson's testimony regarding certain details about the events in Columbus differed from Critser's testimony, but she testified to the same general sequence of events: driving to Columbus with Henry to pick up Critser; planning to rob Tony; looking for a gun to use in the robbery; going to Jorgensen's house to obtain money on May 17, 2013; and fighting Jorgensen.
Henderson testified that while Jorgensen was still alive, Henry and Critser extracted Jorgensen's personal identification number from him, and Henry told her to take Jorgensen's debit card to an ATM to make sure it worked. She withdrew $100. Henderson testified that she witnessed Henry stab Jorgensen in the chest multiple times. Henderson admitted that she was the person who stabbed Jorgensen in the ...