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State v. Trotter

Supreme Court of Nebraska

March 23, 2018

State of Nebraska, appellee,
v.
Charles S. Trotter, appellant.

         1. Rules of Evidence: Appeal and Error. An appellate court reviews for abuse of discretion a trial court's evidentiary rulings on relevance, whether the probative value of evidence is substantially outweighed by the danger of unfair prejudice, and the sufficiency of a party's foundation for admitting evidence.

         2. Constitutional Law: Sentences. Whether a sentence constitutes cruel and unusual punishment in violation of the Eighth Amendment presents a question of law.

         3. Judgments: Appeal and Error. When reviewing a question of law, an appellate court reaches a conclusion independent of the lower court's ruling.

          Appeal from the District Court for Douglas County: Leigh Ann Retelsdorf, Judge. Affirmed.

          James Martin Davis, of Davis Law Office, for appellant.

          Douglas J. Peterson, Attorney General, and Melissa R. Vincent for appellee.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, and Funke, JJ., and Riedmann and Arterburn, Judges.

          Heavican, C.J.

         INTRODUCTION

         Charles S. Trotter was convicted of two counts of first degree murder and two counts of use of a deadly weapon to commit a felony. He was sentenced to a term of 40 to 60 [299 Neb. 393] years' imprisonment for each murder conviction and 5 to 10 years' imprisonment for each use conviction, to be served consecutively.

         On direct appeal, Trotter, who was 16 years of age at the time of the events for which he was convicted, alleges that the district court erred in not admitting photographs he claims support his defense that another individual committed the murders and that his collective sentence of 90 to 140 years' imprisonment was the functional equivalent of a sentence of life imprisonment. We affirm.

         BACKGROUND

         Trotter was charged in the January 3, 2015, shooting deaths of Marcel Lovejoy and Dexter Joseph. Lovejoy and Joseph were shot while attending a party at an apartment complex in Omaha, Nebraska. At trial, three eyewitnesses testified that Trotter was the shooter.

         Trotter's defense was mistaken identity: He claimed that the witnesses who identified him mistook him for DeAndre Hines. He attempted to introduce into evidence photographs of Hines, which were found on Hines' cell phone during a consensual search of that phone by law enforcement. The photographs were taken on two different days toward the end of December 2014 and depicted Hines holding a silver and black handgun.

         Anticipating an objection to these photographs, Trotter's counsel sought a sidebar prior to the offering of the photographs:

[Counsel for Trotter]: Okay. Here is the screenshot. It's dated December 29th of 2014, which is a couple of days beforehand, and that's - although you may not be able to tell, that clearly is . . . Hines with a gun that is similar to the one described by the witnesses as silver and black.
Show them the next picture. For your information, the next one is taken on - okay. There it is. Similar gun, . . . [299 Neb. 394] Hines on New Year's Eve. He doesn't have - doesn't have the time on there. It's 7:56 p.m., it looks like, and once again, I believe that he's in possession of a gun that is similar to the one described by the witness, silver and black.
And so I would - my intention would be to ask him if he got them from - captured them from the phone, and put them into evidence, and I want to do this beforehand, so it's not -
THE COURT: I appreciate that you are playing fair.
[The State]: The State would object, first off, on relevance. I don't know if that is, in fact, a gun or a BB gun. It looks like a real gun. I can't tell from looking at the photo what caliber of weapon it is. I can't tell if it's a 9 millimeter or a .40 ...

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