State v. Foster, 839 N.W.2d 783

Background

Jeremy D. Foster and co-defendant Darrin D. Smith were jointly tried for first-degree murder, multiple second-degree assaults, and related weapon charges arising from a November 2008 shooting at the American Legion; both were convicted and sentenced to life plus additional years.
Evidence was conflicting as to which defendant fired the fatal shot; witnesses placed both men at the scene, described a sweatshirt switch, and offered varying identifications (some implicating Foster as shooter, others Smith, and some describing a light-skinned man with braids).
Smith was prosecuted principally on an aiding-and-abetting theory; the State’s theory allowed conviction of Smith even if he was not the triggerman.
Pretrial consolidation, severance motions, and reconsolidation featured prominently: the court consolidated, later severed, then reconsolidated, and ultimately denied pretrial and pre-presentation motions to sever by both defendants.
At trial, testimony included out-of-court statements by Smith (some non‑testimonial statements to witnesses and some testimonial statements from a prior trial introduced through a prosecutor), and neither defendant testified; Foster did not contemporaneously object to several statements or seek limiting instructions.
After submission, the court permitted the jury to separate following express, on-the-record statements from both defendants that they did not request sequestration.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Foster)	Held
Whether the district court abused discretion by refusing to sever Foster’s trial from Smith’s	Joinder was proper because offenses arose from same transaction; limiting instructions and common‑trial safeguards suffice	Joint trial prejudiced Foster because defenses were mutually antagonistic, hearsay from Smith admitted, and Confrontation Clause implicated	No abuse of discretion; joinder appropriate, no compelling specific prejudice shown; severance denied
Whether Smith’s out‑of‑court statements were admissible against Foster in a separate trial	Statements to witnesses showed Smith’s state of mind and were non‑hearsay for that purpose; prior‑trial testimony admissible in joint trial context	Some of Smith’s prior trial testimony was testimonial and would be inadmissible against Foster in a separate trial, causing prejudice	Statements to witnesses were non‑hearsay and admissible; prior‑trial testimony was testimonial but not so prejudicial as to require severance
Whether admission of Smith’s testimonial prior‑trial statements violated Foster’s Confrontation Clause rights and required severance	Even if testimonial, statements were not so prejudicial; other evidence and common knowledge about gangs mitigated impact	Admission without Foster’s ability to cross‑examine violated Confrontation Clause and undermined a fair trial	Testimonial nature acknowledged, but harmless for severance purposes — no compelling prejudice shown; Confrontation issue did not mandate severance
Whether the court erred in allowing the jury to separate without an intelligent, on‑the‑record waiver of sequestration	The court obtained on‑the‑record statements from both defendants that they did not seek sequestration, satisfying waiver requirement under then‑controlling law	Foster argued waiver must be voluntary, knowing, and intelligent with formal warnings; mere yes/no insufficient	No error: Foster personally affirmed he did not seek sequestration, satisfying the express agreement rule applicable at the time (Robbins rule)

Key Cases Cited

Zafiro v. United States, 506 U.S. 534 (1993) (severance required only if joint trial would seriously risk compromising a specific trial right or prevent reliable verdict)
Crawford v. Washington, 541 U.S. 36 (2004) (testimonial statements are barred by Confrontation Clause unless witness unavailable and defendant had prior opportunity to cross‑examine)
State v. McPherson, 266 Neb. 715 (2003) (Nebraska standard for joinder and severance; burden on movant to show prejudice)
U.S. v. Tootick, 952 F.2d 1078 (9th Cir. 1991) (rare instance finding mutually exclusive defenses merited severance)
State v. Pelton, 197 Neb. 412 (1977) (mere antagonistic defenses insufficient for severance when charges arise from same acts)
State v. Kitt, 284 Neb. 611 (2012) (aiding and abetting liability and statutory basis)
State v. Robbins, 205 Neb. 226 (1980) (pre‑Collins rule: express defendant consent required to waive statutory jury sequestration)