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State v. Carr

Supreme Court of Nebraska

July 15, 2016

STATE OF NEBRASKA, APPELLEE,
v.
JOSHUA D. CARR, APPELLANT

          Appeals from the District Court for Lancaster County: STEVEN D. BURNS, Judge.

         Sarah P. Newell, of Nebraska Commission on Public Advocacy, for appellant.

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

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

          OPINION

         Connolly, J.

         SUMMARY

         Joshua D. Carr argues that the court abused its discretion by not allowing him to withdraw his guilty and no contest pleas before sentencing because of newly discovered evidence. After the court accepted Carr's pleas, he deposed a previously unknown witness whose testimony, Carr contends, would impeach the State's witnesses. The court overruled Carr's motion to withdraw his pleas because it determined that the newly discovered evidence did not exculpate Carr and was not credible. We conclude that the court did not abuse its discretion, and we therefore affirm.

         BACKGROUND

         In 2014, the State filed two informations against Carr. In case No. S-15-921, the State charged Carr with robbery and use of a firearm to commit a felony for events occurring on September 11, 2014 (the robbery case). In case No. S-15-922, the State charged Carr with first degree murder, attempted robbery, possession of a stolen firearm, and two counts of use of a firearm to commit a felony (the homicide case). The State alleged that the homicide case arose from the robbery and death of Maurice Williams on August 30, 2014.

         Carr and the State reached a plea agreement. He pleaded guilty to the robbery charge in the robbery case, and in exchange, the State dismissed the use of a firearm charge. In the homicide case, Carr pleaded no contest to an amended information charging him with attempted robbery, use of a firearm to commit a felony, and manslaughter.

         Before accepting Carr's pleas, the court received a factual basis for the charges. For the robbery case, the prosecutor stated:

[O]n Thursday, September 11th, 2014 at approximately 2:00 a.m., three male individuals contacted the residents of an apartment [on] Huntington Avenue, Lincoln, Lancaster County, Nebraska, at the front door. The three individuals said they were looking for a place to " cool out."
After a short period of time, one of the three individuals pulled out a black semi-automatic handgun and asked where the marijuana was. As one individual pointed a gun at and threatened the individuals in the apartment . . . the other two searched the apartment and collected [cash and personal property].
A person who was in the apartment during the robbery identified the three male individuals responsible as . . . Carr, Micheal [sic] Nevels and Jomarcus Scott.
[Later], law enforcement contacted . . . Carr and . . . Scott and they located a . . . handgun during the search of . . . Scott. . . . Scott admitted to the robbery at [the apartment on] Huntington with . . . Carr and . . . Nevels.

         The State gave the following factual basis for the charges in the amended information in the homicide case:

[O]n Saturday, August 30th, 2014 at approximately 1:03 a.m., Lincoln police officers were sent to [an apartment on] " R" Street, . . . Lincoln, Lancaster County, Nebraska. [Persons] reported that . . . Williams had been shot. Law enforcement and emergency personnel found . . . Williams lying on the floor inside the residence. He was found to have sustained a single gunshot wound.
He was transported to Bryan LGH West Hospital and soon thereafter pronounced dead. The cause of death was determined to be from the single gunshot wound.
. . . Carr was identified as a suspect when a witness reported to law enforcement that . . . Carr had stated he shot . . . Williams with a rifle during a robbery attempt. A rifle . . . was sent to the Nebraska state laboratory, along with a bullet recovered from [the apartment on] " R" Street, and the items were found to be a ballistic match.
The laboratory located a fingerprint on the rifle that matched . . . Carr's left middle finger. Law enforcement located a photograph on social media as well as on . . . Carr's phone depicting . . . Carr holding the rifle.
Several individuals agreed to law enforcement interviews after August 30th, 2014. From these interviews, law enforcement learned that . . . Carr and three others planned to rob . . . Williams of marijuana and money. They rode together in a vehicle to [the apartment on] " R" Street.
Once there, one of the four made the secure residence accessible, and . . . Carr and another went into the residence. . . . Carr had the rifle and held . . . Williams . . . at gunpoint while the other person looked for money in the bedroom. . . . Williams was heard to say to . . . Carr that they " weren't going to do him like that." As Williams attempted to walk past . . . Carr and toward the bedroom, the rifle discharged and a bullet struck . . . Williams, fatally injuring him.
. . . Carr and the other person then quickly left the residence, got into an awaiting vehicle occupied by the two others involved in the planning of ...

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