State v. Derreza, A-16-527

Background

On Sept. 5, 2014 troopers stopped two vehicles traveling together on I-80: a rented Chevrolet Impala (driven by Menter) and a Chevy Tahoe (occupied by Derreza and Thomas). A trooper suspected the Tahoe was a decoy and called for backup.
A drug dog alerted to the Impala; a search of the trunk spare tire revealed ~1,318 grams of methamphetamine. Derreza, Thomas, and Menter were arrested.
The rental agreement for the Impala was in Derreza’s name; the Tahoe was registered to Derreza’s father. The occupants gave inconsistent accounts about whether they were traveling together.
At trial the court admitted statements by Menter and Thomas to officers as non-hearsay (offered to show inconsistent stories) and/or under the coconspirator exception; the jury convicted Derreza of possession with intent to deliver methamphetamine (≥140 g).
The court excused a juror (J.M.) during trial after he spoke with troopers in a courthouse hallway despite admonitions; an alternate replaced him. Derreza’s mistrial motion was denied.
Derreza was sentenced to 20–20 years with credit for time served; he appealed raising sufficiency, hearsay, jury instruction, juror dismissal, and cumulative error claims.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of evidence for constructive possession and knowledge	Derreza: no evidence he had contraband on his person or knew about drugs in the rental vehicle	State: circumstantial evidence (rental agreement in Derreza’s name, vehicles traveling together, evasive conduct, large quantity of drugs) supports constructive possession	Affirmed — viewed favorably to State, evidence sufficient to infer constructive possession and knowledge
Admissibility of Menter/Thomas statements (hearsay/coconspirator)	Derreza: statements should be excluded as hearsay unless coconspirator exception applies	State: statements not offered for truth but to show inconsistent stories; alternatively coconspirator exception	Affirmed — statements were non‑hearsay (offered to show inconsistencies); court need not resolve coconspirator ruling
Jury instruction on possession / constructive possession	Derreza: requested explicit language defining possession and knowledge; trial court refused proposed wording	State: instructions as given adequately covered law (record of instructions not provided on appeal)	Affirmed — appellant failed to include instructions in record; absent record, trial court’s instructional rulings affirmed
Dismissal of juror J.M. and replacement with alternate	Derreza: removal prejudiced him; juror’s brief hallway talk did not warrant discharge	State: J.M. violated admonitions, spoke to witnesses, risked bias	Affirmed — trial court observed witnesses and juror, acted within discretion to discharge and replace juror
Cumulative error claim	Derreza: cumulative effect of errors deprived him of fair trial	State: no prejudicial errors individually or cumulatively	Affirmed — no cumulative error shown

Key Cases Cited

State v. Duncan, 293 Neb. 359, 878 N.W.2d 363 (standard for reviewing sufficiency of the evidence)
State v. Draper, 295 Neb. 88, 886 N.W.2d 266 (admissibility of evidence and standard of review under Neb. Evidence Rules)
State v. Hinrichsen, 292 Neb. 611, 877 N.W.2d 211 (standards for jury instruction review)
State v. Jones, 296 Neb. 494, 894 N.W.2d 303 (reasonable-inference sufficiency standard)
State v. Howard, 282 Neb. 352, 803 N.W.2d 450 (constructive possession and inferences from circumstantial evidence)
State v. McCurry, 296 Neb. 40, 891 N.W.2d 663 (appellate burden when challenging jury instructions)
State v. Boche, 294 Neb. 912, 885 N.W.2d 523 (appellant must supply record supporting instruction errors)
State v. Hilding, 278 Neb. 115, 769 N.W.2d 326 (trial court discretion in juror retention/removal)
State v. Smith, 286 Neb. 856, 839 N.W.2d 333 (cumulative error doctrine)