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State v. Parnell

Supreme Court of Nebraska

August 26, 2016

State of Nebraska, appellee,
v.
Tracy N. Parnell, appellant.

         1. Motions for Continuance: Appeal and Error. An appellate court reviews a judge's ruling on a motion to continue for an abuse of discretion.

         2. Criminal Law: Motions for New Trial: Appeal and Error. In a criminal case, a motion for new trial is addressed to the discretion of the trial court, and unless an abuse of discretion is shown, the trial court's determination will not be disturbed.

         3. Rules of Evidence: Other Acts: Appeal and Error. It is within the discretion of the trial court to determine relevancy and admissibility of evidence of other wrongs or acts under Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Cum. Supp. 2014), and the trial court's decision will not be reversed absent an abuse of discretion.

         4. Jury Instructions: Appeal and Error. Whether a jury instruction is correct is a question of law, which an appellate court independently decides.

         5. Effectiveness of Counsel: Appeal and Error. Whether a claim of ineffective assistance of trial counsel may be determined on direct appeal is a question of law. In reviewing claims of ineffective assistance of counsel on direct appeal, an appellate court decides only questions of law: Are the undisputed facts contained within the record sufficient to conclusively determine whether counsel did or did not provide effective assistance and was the defendant prejudiced by counsel's alleged deficient performance?

         6. Trial: Evidence: Prosecuting Attorneys: Due Process. The nondisclosure by the prosecution of material evidence favorable to the defendant, requested by the defendant, violates due process, irrespective of the good faith or bad faith of the prosecution. But due process is not violated where the evidence is disclosed during trial.

         [294 Neb. 552]

          7. Expert Witnesses: Evidence. An expert's oral, unrecorded opinions do not fall within the scope of Neb. Rev. Stat. § 29-1912(1)(e) (Cum. Supp. 2014).

         8. Judgments: Words and Phrases. An abuse of discretion occurs when a trial court's decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence.

         9. Motions for Continuance: Appeal and Error. There is no abuse of discretion by the court in denying a continuance unless it clearly appears that the party seeking the continuance suffered prejudice as a result of that denial.

         10. Criminal Law: Motions for New Trial: Evidence: Proof. A criminal defendant who seeks a new trial because of newly discovered evidence must show that if the evidence had been admitted at the former trial, it would have probably produced a substantially different result.

         11. Rules of Evidence: Other Acts. Under Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Cum. Supp. 2014), evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he or she acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

         12. ___: ___. Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Cum. Supp. 2014), does not apply to evidence of a defendant's other crimes or bad acts if the evidence is inextricably intertwined with the charged crime.

         13. _: _ . Inextricably intertwined evidence includes evidence that forms part of the factual setting of the crime, or evidence that is so blended or connected to the charged crime that proof of the charged crime will necessarily require proof of the other crimes or bad acts, or if the other crimes or bad acts are necessary for the prosecution to present a coherent picture of the charged crime.

         14. Jury Instructions: Proof: Appeal and Error. To establish reversible error from a court's refusal to give a requested instruction, an appellant has the burden to show that (1) the tendered instruction is a correct statement of the law, (2) the tendered instruction is warranted by the evidence, and (3) the appellant was prejudiced by the court's refusal to give the tendered instruction.

         15. Jury Instructions: Appeal and Error. All the jury instructions must be read together, and if, taken as a whole, they correctly state the law, are not misleading, and adequately cover the issues supported by the pleadings and evidence, there is no prejudicial error necessitating reversal.

         [294 Neb. 553]

          16. Criminal Law. To constitute one an accomplice, he must take some part in the crime, perform some act, or owe some duty to the person in danger that makes it incumbent on him to prevent the commission of the crime. Mere presence, acquiescence, or silence, in the absence of a duty to act, is not enough to constitute one an accomplice. The knowledge that a crime is being committed cannot be said to constitute one an accomplice.

         17. Effectiveness of Counsel: Appeal and Error. When a defendant's trial counsel is different from his or her counsel on direct appeal, the defendant must raise on direct appeal any issue of trial counsel's ineffective performance which is known to the defendant or is apparent from the record. Otherwise, the issue will be procedurally barred.

         18. Postconviction: Effectiveness of Counsel: Appeal and Error. When a defendant was represented both at trial and on direct appeal by the same lawyers, generally speaking, the defendant's first opportunity to assert ineffective assistance of trial counsel is in a motion for postconviction relief.

         19. Postconviction. The need for finality in the criminal process requires that a defendant bring all claims for relief at the first opportunity.

         20. Postconviction: Appeal and Error. A motion for postconviction relief cannot be used to secure review of issues which were known to the defendant and could have been litigated on direct appeal.

         21. Effectiveness of Counsel: Time: Appeal and Error. Claims of ineffective assistance of counsel raised on direct appeal by the same counsel who represented the defendant at trial are premature and will not be addressed on direct appeal.

         22. Effectiveness of Counsel: Records: Appeal and Error. The fact that an ineffective assistance of counsel claim is raised on direct appeal does not necessarily mean that it can be resolved. The determining factor is whether the record is sufficient to adequately review the question.

         23. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the defendant must show that counsel's performance was deficient and that this deficient performance actually prejudiced his or her defense.

         24. _: _ . To show deficient performance, a defendant must show that counsel's performance did not equal that of a lawyer with ordinary training and skill in criminal law.

         25. _: _ . To show prejudice, the defendant must demonstrate a reasonable probability that but for counsel's deficient performance, the result of the proceeding would have been different.

         26. Trial: Attorneys at Law: Effectiveness of Counsel: Appeal and Error. When reviewing claims of alleged ineffective assistance of counsel, an [294 Neb. 554] appellate court affords trial counsel due deference to formulate trial strategy and tactics.

         27. Effectiveness of Counsel: Presumptions: Appeal and Error. The entire ineffectiveness analysis is viewed with a strong presumption that counsel's actions were reasonable and that even if found unreasonable, the error justifies setting aside the judgment only if there was prejudice.

         28. Effectiveness of Counsel: Proof. In an ineffective assistance of counsel claim, deficient performance and prejudice can be addressed in either order. If it is more appropriate to dispose of an ineffectiveness claim due to lack of sufficient prejudice, that course should be followed.

         Appeal from the District Court for Douglas County: Gary B. Randall, Judge. Affirmed.

          Thomas C. Riley, Douglas County Public Defender, Ally son A. Mendoza, and Mary Mullin Dvorak for appellant.

          Douglas J. Peterson, Attorney General, and Stacy M. Foust for appellee. Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, and Kelch, JJ., and Bishop, Judge.

          Cassel, J.

         I. INTRODUCTION

         In this direct appeal, Tracy N. Parnell challenges his convictions, pursuant to jury verdict, for first degree murder, attempted first degree murder, two counts of use of a deadly weapon to commit a felony, and possession of a weapon by a prohibited person. His two primary arguments attack denials of his motions to continue the trial and for a new trial. These arguments are premised upon untimely disclosure of opinions of a cellular analyst and rely on Brady v. Maryland[1] and a discovery statute.[2] He also complains that his earlier threats toward one of the victims were admitted in evidence, [294 Neb. 555] his requested instruction on accomplice testimony was refused, and his trial counsel provided ineffective assistance. Finding no merit in his arguments, we affirm.

         II. BACKGROUND

         1. Shooting

         On October 30, 2012, at around 8:14 p.m., Eriana Carr and Nakia Johnson were shot outside of Carr's residence in Omaha, Nebraska. Carr was shot twice and died from her injuries. Johnson was shot 11 times and survived. Johnson told investigators that the shots came from "a blue Nissan Altima with a messed up front bumper." She did not see the shooter.

         2. Threat

         During a pretrial hearing, Johnson explained how she met Parnell. This occurred at a September 2012 birthday party for one of Johnson's friends, who was involved with Parnell. Johnson knew Parnell only by his nickname, "Laylow." At that birthday party, Johnson had a short conversation with Parnell regarding his car, a blue Nissan Altima. She told him that a Nissan Altima was her favorite car, and Parnell responded, "'That's what's up.'" Then Parnell left.

         Johnson told investigators that Parnell threatened her 2 days before the shooting. Johnson testified that the threat occurred on October 28, 2012, after "a little get-together" at her friend's apartment, where she sometimes stayed overnight. Parnell and several other people attended the get-together. A man with whom Johnson was involved, Ryan Fraiser, attended and later left. Fraiser is from another "hood" and a different gang than the others at the party. Johnson went to bed after the party and was awoken by Parnell and three others. They were yelling at Johnson because "they felt like [she] had brought someone into the house from another side, " or "[a]nother hood."

         Eventually the others left, but Parnell remained. He paced back and forth in front of Johnson's door and was "saying all kind[s] of stuff . . . indirectly to [Johnson]." Johnson [294 Neb. 556] told Pamell to "[s]hut the [expletive] up talking to me, " and Parnell left. He returned with a gun in his hand. Pamell stared at Johnson while holding the gun. Johnson grabbed her cell phone, and Parnell told her to call Fraiser and tell him that Parnell would "be outside waiting for him." Johnson was scared and called the 911 emergency dispatch service because Parnell "was blocking [her] way to the door" and she did not know "what was about to happen." When Johnson ended the call, Parnell left.

         Parnell was eventually prosecuted for the threat, but not until after the shooting. At that point, the State filed an information charging Parnell with committing terroristic threats. He pled no contest and received a sentence of 20 to 24 months' imprisonment.

         3. Nissan Altima

         Detectives investigated the Nissan Altima involved in the shooting. They discovered that Parnell had been stopped while driving a blue Nissan Altima several months earlier. The registered owner of the car was Jasmine Nero, who was also the mother of Parnell's child.

         An investigator testified that she interviewed Parnell and asked him about the Altima. Parnell claimed that he only drove his aunt's car and that he never drove any of Nero's vehicles. He denied any knowledge of an Altima.

         In a call from jail, Parnell spoke to Nero about the Altima. Nero testified at trial that she understood from that call that Parnell wanted her "to get rid of the car. Nero moved the car to a garage, where investigators later found it. The car's front bumper was damaged, and it contained a box with Parnell's thumbprint on it.

         4. Pretrial Motions The State filed an information charging Parnell with five counts: murder in the first degree, two counts of use of a deadly weapon to commit a felony, attempted first degree murder, and possession of a deadly weapon by a prohibited [294 Neb. 557] person. The district court ordered mutual and reciprocal discovery "pursuant to statute."

         Before trial, the State filed a notice under rule 404[3] of its intent to offer evidence of Parnell's terroristic threat against Johnson to show motive, intent, and plan. Parnell filed a motion in limine requesting to exclude the State's cellular analyst pursuant to the standards of DaubertlSchafersmart.[4] The district court held a joint hearing on the motions. Later, Parnell filed a motion to continue the trial.

         (a) Rule 404

         In the portion of the joint hearing related to rule 404, Johnson testified regarding Parnell's threatening behavior before the shooting. The State introduced Johnson's 911 call, a certified copy of Parnell's conviction and sentence for terroristic threats, and police reports about the threat.

         In a written order, the district court concluded that Parnell's threatening behavior was inextricably intertwined with the crime charged and therefore not subject to rule 404. It reasoned that it "forms part of the factual setting of the murder. It is evidence that explains an integral part of the immediate context of the crime charged." The district court concluded further that even if the threat was subject to rule 404, it would still be admissible, because it "demonstrates [Parnell's] motive and that the subsequent shooting was gang related; thus it is admissible to show intent."

         (b) DaubertlSchafersman

         In the DaubertlSchafersman portion of the joint hearing, the State's expert, William Shute, testified regarding his qualifications and methods. Shute is a special agent with the Federal Bureau of Investigation (FBI) and a member of the [294 Neb. 558] FBI's "Cellular Analysis Survey Team." He performs "historical cell site analysis" using call detail records provided by cellular carriers.

         Shute explained that call detail records show the "first serving cell site, " which is the tower a particular cell phone used, and the "first serving cell face, " which is the sector of the tower used. Cell towers usually have three sectors. The FBI's survey team members use call detail records to determine "what tower and sector of the tower was being utilized for service" and then plot the towers and sectors on a map. They then look for patterns and "come up with a geographical plot as to where [they] believe that individual is at that particular time."

         Shute also testified regarding the locations of Parnell's cell phone around the time of the shooting. He prepared a PowerPoint presentation that included Parnell's call detail records. The records showed that Parnell's cell phone connected to tower: (1) 201 at 7:52 p.m., (2) 729 at 8:07 p.m., (3) 201 at 8:11 p.m., (4) 729 at 8:20 p.m., and (5) 201 at 8:20 p.m. Shute plotted the towers and their coverage areas on a map. The map showed the coverage areas as shaded "pie wedges."

         Shute testified that the coverage areas for towers 201 and 729 overlap. He said that the way that Parnell's cell phone switched between towers 201 and 729 showed that it was definitely located within the overlapping coverage area at the time of the shooting. A map in his PowerPoint presentation depicted the crime scene within the overlapping area.

         The court overruled Parnell's motion in limine. It concluded that Shute was qualified to testify as an expert and that his methods were reliable.

         (c) Motion for Supplemental Discovery

         In March 2015, Parnell filed a motion requesting supplemental discovery from the State. The motion is not in our record. Parnell's counsel, Daniel Stockmann, filed an affidavit with the motion. This affidavit is in our record. In it, [294 Neb. 559] Stockmann states that he learned that certain undisclosed discovery materials existed after he attended a March 6, 2015. seminar where cellular analyst Michael O'Kelly presented. In the discovery process, the State had shared a police report and maps showing that O'Kelly had performed basic cell phone mapping services for the Omaha Police Department.

         After the seminar, Stockmann e-mailed O'Kelly and asked whether he had performed services for the department which were not disclosed in the police report. O'Kelly's counsel responded and said that although O'Kelly could not disclose what work he had performed for the department, he could confirm that O'Kelly performed more services than were disclosed in the report. Parnell then filed the motion for supplemental discovery regarding O'Kelly's services, which the district court granted.

         After the court ordered supplemental discovery, O'Kelly provided Parnell's counsel with an affidavit detailing his interactions with the State, and the State disclosed a series of e-mails between O'Kelly, Det. Sherry King of the Omaha Police Department, and Deputy Douglas County Attorney Brenda Beadle.

         In his affidavit, O'Kelly stated that he "reviewed the . . . call detail records and concluded that [Parnell's cell phone] appeared to travel from the west side of Omaha [where Parnell lived] to the east side, then north and south and then traveling back to the general area on the west side." O'Kelly said that he "began processing and mapping the individual cell site registrations. The handset transition west to east, north/ south and east to west activities were confirmed." He then "provided Detective King with multiple maps depicting handset movements consistent with cell site registrations that supported physical movement from Omaha's west side to the east side and possible travel movements north and south on the east side."

         O'Kelly also stated that he informed King that "it is impossible to identify a specific location stop(s), specific surface [294 Neb. 560] roadway travels based upon the existing cellular data." He told her that "drawing circles and other shapes with defined boundaries is unreliable and at best simple guessing with an agenda. The 'guessing' may be based upon experience and training but will still have no foundation and/or credible support that is rooted with existing electronic wireless data." And he told her that "in order to possibly place the subject [cell phone] in the immediate area of the crime scene ... it will be necessary to conduct an RF Signal Field Survey." He "provided an explanation of the FBI's RF Signal mapping approach versus the O'Kelly approach." And he explained that his approach to performing such a survey, or drive test, "is time consuming and labor intensive covering days if not weeks." He said that after performing the survey, the tower coverage areas would "appear similar to that of an amoeba and will be unique to each cell site."

         In the e-mails, King asked O'Kelly whether he had a formal report to present to the county attorney's office. O'Kelly responded that a report in writing would be "[discoverable" and that he "would recommend the county attorney and I visiting and then letting them decide." Although the documents do not contain a record of a call, they do contain a followup e-mail that indicates that O'Kelly spoke with Beadle.

         (d) Motion to Continue or Exclude

         On March 23, 2015, Parnell filed a motion asking the court to exclude Shute's testimony or continue the trial, which was scheduled to begin March 30. The motion was based on the State's "belated disclosure of discovery materials" related to O'Kelly. In the motion, Parnell acknowledged that the State had previously disclosed that O'Kelly worked on the case. He argued that the State violated its duty under § 29-1912 and Brady v. Maryland[5] to disclose O'Kelly's opinions that a drive test was necessary and that the FBI's methods were not reliable. [294 Neb. 561]

         At the hearing on the motion to continue, Parnell offered 0'Kelly's affidavit. He did not offer the series of e-mails between O'Kelly, King, and Beadle. Stockmann argued:

[T]he second that . . . Shute . . . provided the opinions to the government, the government, whether through law enforcement or the county attorney, was aware that an exculpatory opinion from . . . O'Kelly existed. [It had] an obligation to tell me about . . . O'Kelly's exculpatory opinion. [It] didn't tell me about it; I had to find it out on my own because I went to a seminar ....

         The State responded that O'Kelly's opinion was not exculpatory and that he placed Parnell's cell phone in the same area as had Shute, although he was not as specific.

         The court noted that because the State planned to take a week to present its evidence at trial, Parnell had "12 days, " and it said that "O'Kelly can get his stuff together in 12 days" in order to testify. It also stated that "[i]f [Parnell] wanted to hire a cell tower expert, [he] could have done it at any time in the last two years."

         In its written order, the district court found that the evidence relating to O'Kelly was not exculpatory and that it "[h]ad been provided to [Parnell] at an early date." Therefore, it was not a valid reason for a continuance. The court also entered an order permitting Parnell to retain O'Kelly as an expert witness.

         Before trial, Parnell renewed his motion to continue the trial. At that time, he offered an exhibit containing the e-mail exchanges between O'Kelly, King, and Beadle. He said that he "neglected to offer" it at the earlier hearing. The court overruled the renewed motion.

         5. Trial

         (a) Testimony

         At trial, Johnson testified and described the shooting, the blue Nissan Altima, and the threatening incident days earlier. Shute's testimony was consistent with his testimony at the [294 Neb. 562] DaubertlSchafersman hearing-he stated that towers 201 and 729 form an overlap area and that Parnell must have been within the overlap area ...


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