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State v. Briggs

Supreme Court of Nebraska

June 14, 2019

State of Nebraska, appellee,
Reginald B. Briggs, appellant.

         1. Pleadings: Parties: Judgments: Appeal and Error. A denial of a motion to sever will not be reversed unless clear prejudice and an abuse of discretion are shown, and an appellate court will find such an abuse only where the denial caused the defendant substantial prejudice amounting to a miscarriage of justice.

         2. Rules of Evidence: Judgments: Words and Phrases: Appeal and Error. Where the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court, an appellate court reviews the admissibility of evidence for an abuse of discretion. 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.

         3. 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.

         4. Motions for Mistrial: Appeal and Error. Decisions regarding motions for mistrial are directed to the discretion of the trial court, and will be upheld in the absence of an abuse of discretion.

         5. ___ : ___. The standard of review for the denial of a motion for new trial is whether the trial court abused its discretion in denying the motion.

         6. Sentences: Appeal and Error. A sentence imposed within statutory limits will not be disturbed on appeal absent an abuse of discretion by the trial court.

          [303 Neb. 353] 7. Constitutional Law: Trial: Joinder. A defendant has no constitutional right to a separate trial on different charges.

         8. Trial: Joinder: Appeal and Error. Under Neb. Rev. Stat. § 29-2002 (Reissue 2016), the question of whether offenses are properly joined involves a two-stage analysis. First, a court must determine whether the offenses were sufficiently related to be joinable, and then it must determine whether an otherwise proper joinder was prejudicial to the defendant.

         9. ___ : ___: ___. There is no error under Neb. Rev. Stat. § 29-2002 (Reissue 2016) if joinder was not prejudicial.

         10. ___ : ___: ___. A denial of a motion to sever will be reversed only if clear prejudice and an abuse of discretion are shown. An appellate court will find such an abuse only where the denial caused the defendant sub­stantial prejudice amounting to a miscarriage of justice.

         11. Trial: Joinder: Proof. A defendant opposing joinder of charges has the burden of proving prejudice.

         12. ___ : ___: ___. To prove prejudice in opposing joinder, a defendant must show compelling, specific, and actual prejudice from the court's refusal to grant the motion to sever.

         13. Trial: Joinder. Severe prejudice occurs when a defendant is deprived of an appreciable chance for an acquittal, a chance that the defendant would have had in a severed trial.

         14. Trial: Joinder: Juries: Evidence. Joined charges do not usually result in prejudice if the evidence is sufficiently simple and distinct for the jury to easily separate evidence of the charges during deliberations.

         15. Rules of Evidence: Other Acts. 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.

         16.___ : ___. Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Reissue 2016), does not apply to evidence of a defendant's other crimes or bad acts if the evidence is inextricably intertwined with the charged crime.

         17. ___ : ___. Inextricably intertwined evidence includes evidence that forms part of the factual setting of the crime and 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. Evidence of other crimes or bad acts is also inextricably intertwined with the charged crime if the other crimes or bad acts are necessary for the prosecution to present a coherent picture of the charged crime.

         18. Constitutional Law: Juries: Discrimination: Proof. In order to estab­lish a prima facie violation of the fair-cross-section requirement under the Sixth Amendment, a defendant must show (1) that the group alleged to be excluded is a distinctive group in the community, (2) that the [303 Neb. 354] representation of the group in venires from which the juries are selected is not fair and reasonable in relation to the number of such persons in the community, and (3) that this underrepresentation is due to systematic exclusion of the group in the jury selection process.

         19. 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.

         20. Juries: Discrimination: Prosecuting Attorneys: Appeal and Error. Once the trial court has decided the ultimate question of intentional discrimination in a prosecutor's strike of a prospective juror, the ques­tions on appeal are only whether the prosecutor's reasons were facially race neutral and whether the trial court's final determination regarding purposeful discrimination was clearly erroneous.

         21. Juries: Discrimination: Prosecuting Attorneys. Whether a prosecu­tor's reasons for using peremptory challenges are race neutral is a ques­tion of law. A trial court's determination that the prosecutor's race-neutral explanation should be believed, on the other hand, frequently involves evaluation of a prosecutor's credibility, which requires defer­ence to the court's findings absent exceptional circumstances.

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

         23. ___: ___ : ___. A prosecutor's intuitive assumptions, inarticulable factors, or even hunches can be proper bases for rejecting a poten­tial juror, so long as the reasons are not based on impermissible group bias.

         24. Motions to Dismiss: Directed Verdict: Waiver: Appeal and Error. A defendant who moves for dismissal or a directed verdict at the close of the evidence in the State's case in chief in a criminal prosecution and who, when the court overrules the dismissal or directed verdict motion, proceeds with trial and introduces evidence, waives the appellate right to challenge correctness in the trial court's overruling the motion for dismissal or a directed verdict but may still challenge the sufficiency of the evidence.

         25. Criminal Law: Motions for Mistrial: Proof: Appeal and Error. A mistrial is properly granted in a criminal case where an event occurs during the course of a trial that is of such a nature that its damaging effect cannot be removed by proper admonition or instruction to the jury and thus prevents a fair trial. The defendant must prove that the alleged [303 Neb. 355] error actually prejudiced him or her, rather than creating only the pos­sibility of prejudice.

         26. Motions for Mistrial: Motions to Strike: Appeal and Error. Error cannot ordinarily be predicated on the failure to grant a mistrial if an objection or motion to strike the improper material is sustained and the jury is admonished to disregard such material.

         27. Assault: Weapons. First degree assault can serve as the predicate offense of use of a deadly weapon to commit a felony.

         28. Criminal Law: Convictions: Evidence: Appeal and Error. When reviewing a criminal conviction for sufficiency of the evidence to sustain the conviction, 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.

         29. Appeal and Error. Plain error may be found on appeal when an error unasserted or uncomplained of at trial is plainly evident from the record, affects a litigant's substantial right, and, if uncorrected, would result in damage to the integrity, reputation, and fairness of the judi­cial process.

         30. Sentences: Appeal and Error. The failure to impose an indeterminate sentence when required by statute constitutes plain error.

         31. Sentences: Pretrial Procedure. A defendant is not entitled to credit for time served when he or she is awaiting trial and sentencing on charges, but is also serving another sentence.

         32. Habitual Criminals: Sentences. The habitual criminal statute does not enhance the penalty for prior convictions, but is applied to the penalty for the triggering offense, and thus, the fact that the penalty for a prior conviction was itself enhanced does not result in a double penalty enhancement of the triggering offense. Instead, even convictions that are enhanced under a specific subsequent offense statute can be used as prior convictions so long as they meet the statutory requirement that such convictions resulted in terms of imprisonment of not less than 1 year.

         33. 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.

         34. 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, [303 Neb. 356] 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.

         35. ___. 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.

          Appeals from the District Court for Douglas County: W. Mark Ashford, Judge.

          Ernest H. Addison, Jr., and A. Michael Bianchi for appellant.

          Douglas J. Peterson, Attorney General, and Siobhan E. Duffy for appellee.

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

          Papik, J.

         A jury found Reginald B. Briggs guilty of manslaughter, use of a deadly weapon to commit a felony, possession of a deadly weapon by a prohibited person, and pandering. Briggs later pleaded guilty to another charge of pandering, which had been severed from the other charges prior to trial. Briggs now appeals a number of issues pertaining to his convictions and sentences. We find no merit to his various assignments of error. We do find plain error in his sentencing and thus vacate his sentences in part and remand the matter for resentencing.


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