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State v. Mueller

Supreme Court of Nebraska

December 7, 2018

State of Nebraska, appellee,
Zachary A. Mueller, appellant.

         1. Jury Instructions: Appeal and Error. Whether jury instructions are correct is a question of law, which an appellate court resolves independently of the lower court's decision.

         2. 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.

         3. 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.

         4. ___: ___. Whether a defendant is entitled to credit for time served and in what amount are questions of law, subject to appellate review independent of the lower court.

         5. Jury Instructions: Proof: Appeal and Error. In an appeal based on a claim of an erroneous jury instruction, the appellant has the burden to show that the questioned instruction was prejudicial or otherwise adversely affected a substantial right of the appellant. 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 the evidence, there is no prejudicial error necessitating reversal.

         6. ___: ___: ___. 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 [301 Neb. 779] tendered instruction is warranted by the evidence, and (3) the appellant was prejudiced by the court's refusal to give the tendered instruction.

         7. Criminal Law: Venue: Proof: Waiver. Proof of venue is essential in a criminal prosecution, and in the absence of a defendant's waiver by requesting a change of venue, the State has the burden to prove proper venue beyond a reasonable doubt.

         8. Criminal Law: Statutes: Time. Statutes governing substantive matters in effect at the time of a crime govern, and not later enacted statutes. In contrast, procedural statutes in effect on the date of a hearing or proceeding govern, and not those in effect when the violation took place.

         9. ___: ___: ___. A statute defining the elements of a crime is substantive, and the statute in effect at the time of the offense governs.

         10. 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 a 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.

         11. Sentences. In determining a sentence to be imposed, relevant factors customarily considered and applied are 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 the offense and (8) the amount of violence involved in the commission of the crime.

         12. ___. The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge's observation of the defendant's demeanor and attitude and all the facts and circumstances surrounding the defendant's life.

         13. ___. Because of the mandatory "shall" language used in Neb. Rev. Stat. § 83-1, 106 (Reissue 2014), the statute mandates that credit for time served must be given for time spent in custody on a charge when a prison sentence is imposed for a conviction of such charge.

         14. ___. Neb. Rev. Stat. § 83-1, 106(4) (Reissue 2014) requires that credit for time served shall be given which has not otherwise been applied, and the import of this subsection is that all credit available due to presentence incarceration shall be applied, but only once.

         15. ___. What matters in the credit for time served analysis is not whether the defendant was detained in Nebraska and awaiting trial and sentencing on Nebraska charges, but, rather, whether the defendant was forced to be in custody because of those charges.

          Appeal from the District Court for Morrill County: Leo P. Dobrovolny, Judge.

         [301 Neb. 780] Sarah P. Newell, of Nebraska Commission on Public Advocacy, for appellant.

          Douglas J. Peterson, Attorney General, and Stacy M. Foust for appellee.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and Papik, JJ.

          MILLER-LERMAN, J.


         Zachary A. Mueller appeals his convictions and sentences in the district court for Morrill County for first degree murder, use of a deadly weapon to commit a felony, and possession of a deadly weapon by a prohibited person. With respect to his convictions, Mueller assigns various errors related to instructions that the court gave or refused to give and also contends that there was not sufficient evidence to support his conviction for first degree murder. With respect to his sentences, Mueller claims that the court imposed excessive sentences and failed to give him adequate credit for time served. We affirm Mueller's convictions and his sentences, but we modify the sentencing order to reflect additional credit for time served.


         Mueller was charged with first degree murder and use of a deadly weapon to commit a felony in connection with the shooting death of Pedro Adrian Dominguez. Mueller was also charged with possession of a deadly weapon by a prohibited person based on his previous felony conviction.

         The investigation that resulted in the charges against Mueller began on December 4, 2015, when the body of an unidentified male was discovered inside a barrel in rural Morrill County, Nebraska. The barrel containing the body was found in a creek underneath a bridge on County Road 104, east of Bayard, Nebraska, and northwest of Bridgeport, Nebraska. On December 8, the body was identified as being that of Dominguez based on fingerprints that had been taken from the [301 Neb. 781] body during an autopsy. The autopsy revealed that Dominguez had died as the result of a single gunshot to the left side of the head. The entrance wound was located on the back left side of the head, and a bullet was recovered from the right temporal bone, just above the right ear inside the skull. The trajectory of the bullet was determined to be left to right, back to front, and downward. The doctor performing the autopsy could not determine whether the gunshot wound was immediately fatal or whether Dominguez had lived for a period of time after being shot. Toxicology reports indicated that Dominguez' blood contained controlled substances, including methamphetamine and the active ingredient of marijuana.

         On December 5, 2015, after the body had been discovered but before it had been identified, law enforcement officials issued a press release stating that an unidentified body had been found in a barrel on County Road 104. On December 7, officers responded to a report that a burned vehicle had been found near County Road 104 north of Bridgeport. The vehicle was a Volkswagen that had been completely burned. The passenger seat was missing from the vehicle. Because of the burned condition of the vehicle, officers were unable to find a vehicle identification number.

         The investigation regarding the body in the barrel began to focus on Mueller after an acquaintance of Mueller's reported to law enforcement on December 5, 2015, that in November, he had been visiting Mueller when Mueller asked him to help get the "locking ring" sealed on the top of a barrel. The witness stated that he had asked Mueller what was inside the barrel and that Mueller replied that he did not want to know. On December 7, investigators began talking with various witnesses connected with Mueller. Investigators obtained a search warrant for Mueller's residence, which was located near Bridgeport. On December 8, they executed the search warrant. Items seized in the search of Mueller's residence included a car seat and two Colorado license plates that appeared to have been burned. Investigators retrieved other burned items, including, inter alia, [301 Neb. 782] clothing, a cell phone, and a pair of glasses. Testimony at trial indicated that Dominguez wore glasses but that no glasses had been found with the body in the barrel.

         Dallas Schnell, one of the witnesses interviewed in the investigation, testified at trial that on or around December 4, 2015, she had loaned her vehicle to Mueller and that in exchange, Mueller had left her a blue Volkswagen. Schnell used the Volkswagen while Mueller had her vehicle, and she noticed that the front passenger seat of the Volkswagen was missing. After hearing reports of the body found in the barrel, Schnell had conversations with Mueller, and afterward, she decided that in order to get her vehicle back from Mueller, she needed to get rid of the Volkswagen. On the evening of December 5, Schnell and a friend obtained gasoline and drove the Volkswagen to a country road outside of Bridgeport where they set the Volkswagen on fire. Schnell got her vehicle back a "[c]ouple weeks later" when the vehicle was impounded in Cheyenne, Wyoming, after Mueller had been arrested there.

         The investigation led officers to believe that Felicia Talley had knowledge regarding Dominguez' death. Talley had previously been in a relationship with Mueller, and the two had a daughter together who was born in 2008. The daughter had been adopted and was being raised by Mueller's mother, Michelle Litke. Talley's testimony at trial was generally as follows.

         In November 2015, Talley was living in Greeley, Colorado, and she was in a relationship with Dominguez. Talley informed Mueller that she was coming to Bridgeport the weekend before Thanksgiving, and the two planned that they would visit their daughter. Dominguez accompanied Talley on the trip, and they drove his blue Volkswagen. Talley and Dominguez went to Mueller's house, and there the three of them smoked metham-phetamine that Talley and Dominguez had brought with them. Talley and Mueller later went to visit their daughter while Dominguez stayed at Mueller's house. At that time, the daughter was at the home of Schnell, who lived near Litke. After that visit, Talley and Mueller returned to Mueller's home.

         [301 Neb. 783] Later, Talley went to visit her daughter at Litke's home. Mueller did not accompany her on this visit. Dominguez went with her but stayed outside in his car. During the visit, Talley and Dominguez went to a sandwich shop to get lunch for her daughter and for Litke. When Talley returned to Litke's home, Litke told her that Mueller was "freaking out" and "trying to kill himself." Litke thought that Talley might be able to calm him down, so Talley and Dominguez returned to Mueller's house. Talley spoke with Mueller, and she did not think that he appeared to be "really going crazy." Talley told Mueller that she and Dominguez were going to go away for a couple days and that if Mueller wanted to go with them, he could. Mueller eventually decided to go with them.

         The three left Mueller's house in the blue Volkswagen, with Talley driving, Dominguez in the passenger seat, and Mueller in the back seat. They drove through Bridgeport and headed in the direction of Kimball, Nebraska. Their ultimate destination was Evanston, Wyoming, where Talley's best friend lived. Talley testified that she had been driving "probably about 15 minutes" and that she was having a conversation with Dominguez when:

[A]ll of a sudden, "Boom!" And, I was like, what the hell? And, I looked over and there was [Dominguez] with a bullet in his head. And, he had blood coming out of the back of his head. And, [Mueller] is like, points the gun at me and says, give me a reason why I shouldn't kill you, too, Bitch. And, I was like, I don't know, maybe because we had a kid together, I don't know. That's what happened and then we got to Kimball.

         Talley testified that during this time, Mueller kept calling her "Dallas."

         When Talley and Mueller reached Kimball, they stopped and bought gas at a station. They then kept driving to Cheyenne, Wyoming. Talley testified that Dominguez remained in the passenger seat the entire time that she was driving. She did not see any signs that he was alive after he had been shot. When [301 Neb. 784] they reached Cheyenne, Talley was "driving aimlessly around" because she "didn't know what to do." Mueller became angry that she was driving aimlessly, and he told her to let him drive, so she did. Mueller drove around Cheyenne for some time, but Talley told him he needed to stop because he had difficulty driving a manual transmission and she thought he might get pulled over. Mueller told Talley that he wanted her to kill him, and he handed his gun to Talley, who was then in the back seat. Talley took out the clip and put the gun in her pocket and told Mueller he needed to pull over. When he pulled over and opened the back seat for her, Talley got out of the vehicle and ran to a truckstop. She spent some time inside the truckstop before she saw Mueller drive away. She then asked a truckdriver for a ride so she could get away from her "crazy ex." When the truckdriver got close to Evanston, he dropped her off at a truckstop where she contacted her friend to pick her up.

         Talley spent a few days in Evanston with her friend before returning to Greeley. Talley testified that she had the gun Mueller had given her for some time but that she eventually sold it for money and drugs. Talley was arrested and put in jail in Greeley on charges unrelated to this case. She was still incarcerated when law enforcement officers from Nebraska contacted her regarding the investigation into Dominguez:death. Talley initially did not cooperate with investigators. She testified that she did not report Mueller's shooting Dominguez to police because she was "raised not to be a snitch." She stated that when she was 12 years old, she had witnessed her mother commit a murder and that her mother was convicted based in part on her testimony. She testified that her mother's family blamed her for her mother's conviction and that they disowned her and "always started problems with [her]."

         On cross-examination, Mueller's counsel questioned Talley regarding communications she had with acquaintances when she returned to Greeley after Dominguez had died. The general sense of the communications was that Talley told the [301 Neb. 785] acquaintances that she and Dominguez were moving away but that she was back in Greeley and had methamphetamine she could sell.

         During the defense presented by Mueller, the court received into evidence an agreement between Talley and the State to the effect that any statements made by Talley in connection with the investigation of Mueller or at Mueller's trial would not be used against her in any criminal prosecution except for a prosecution for perjury or giving a false statement. The agreement was described as an agreement for use ...

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