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State v. Wofford

Supreme Court of Nebraska

December 15, 2017

State of Nebraska, appellee, Nlco M. Wofford, appellant.

         1. Trial: Joinder: Appeal and Error.

         A trial court's ruling on a motion for consolidation of prosecutions properly joinable will not be disturbed on appeal absent an abuse of discretion.

         2. Juries: Discrimination: Prosecuting Attorneys:

         Appeal and Error. An appellate court reviews de novo the facial validity of an attorney's race-neutral explanation for using a peremptory challenge as a question of law. It reviews for clear error a trial court's factual determination regarding whether a prosecutor's race-neutral explanation is persuasive and whether the prosecutor's use of a peremptory challenge was purposefully discriminatory.

         3. Trial: Juries: Evidence: Appeal and Error.

         A trial court's decision to allow a jury during deliberations to rehear or review nontestimonial evidence is reviewed by an appellate court for an abuse of discretion.

         4. Convictions: Evidence: Appeal and Error.

         In reviewing a criminal conviction for a sufficiency of the evidence claim, whether the evidence is direct, circumstantial, or a combination thereof, the standard is the same: An appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence; such matters are for the finder of fact. The relevant question for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

         5. Sentences: Appeal and Error.

         An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court.

         6. Judges: Words and Phrases.

         A judicial abuse of discretion exists when the reasons or rulings of a trial judge are clearly untenable, unfairly [298 Neb. 413] depriving a litigant of a substantial right and denying just results in matters submitted for disposition.

         7. Trial: Joinder: Indictments and Informations.

         The propriety of a joint trial involves two questions: whether the consolidation is proper because the defendants could have been joined in the same indictment or information, and whether there was a right to severance because the defendants or the State would be prejudiced by an otherwise proper consolidation of the prosecutions for trial.

         8. Trial: Joinder: Proof: Appeal and Error.

         The burden is on the party challenging a joint trial to demonstrate how and in what manner he or she was prejudiced.

         9. Trial: Joinder.

         Consolidation is proper if the offenses are part of a factually related transaction or series of events in which both of the defendants participated.

         10. Trial: Joinder: Evidence.

         A defendant is not considered prejudiced by a joinder where the evidence relating to both defendants would be admissible in a trial of either defendant separately.

         11. Juries: Prosecuting Attorneys: Equal Protection.

         A prosecutor is ordinarily entitled to exercise permitted peremptory challenges for any reason at all, if that reason is related to his or her view concerning the outcome of the case. However, the U.S. Supreme Court in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), held that the Equal Protection Clause forbids the prosecutor to challenge jurors solely because of their race.

         12. Juries: Discrimination: Prosecuting Attorneys: Proof.

         Determining whether a prosecutor impermissibly struck a prospective juror based on race is a three-step process. In this three-step process, the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike. First, a defendant must make a prima facie showing that the prosecutor exercised a peremptory challenge because of race. Second, assuming the defendant made such a showing, the prosecutor must offer a race-neutral basis for striking the juror. And third, the trial court must determine whether the defendant has carried his or her burden of proving purposeful discrimination.

         13. Juries: Discrimination: Prosecuting Attorneys.

         Whether a prosecutor's reasons for using a peremptory challenge are race neutral is a question of law.

         14. ___: ___: ___. In determining whether a prosecutor's explanation for using a peremptory challenge is race neutral, a court is not required to reject the explanation because it is not persuasive, or even plausible; it is sufficient if the reason is not inherently discriminatory. Only inherently discriminatory explanations are facially invalid.

         [298 Neb. 414] 15. Appeal and Error.

         An appellate court does not consider errors which are argued but not assigned. 16. Trial: Juries: Evidence. A trial court does not have discretion to submit testimonial materials to the jury for unsupervised review, but the trial court has broad discretion to submit to the jury nontestimonial exhibits, in particular, those constituting substantive evidence of the defendant's guilt.

         17. Sentences: Appeal and Error.

         Where a sentence imposed within the statutory limits is alleged on appeal to be excessive, the appellate court must determine whether the sentencing court abused its discretion in considering and applying the relevant factors as well as any applicable legal principles in determining the sentence to be imposed.

         18. Sentences.

         When imposing a sentence, the sentencing court is to consider the defendant's (1) age, (2) mentality, (3) education and experience, (4) social and cultural background, (5) past criminal record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7) the nature of ...

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