State v. Henry, 292 Neb. 834

Background

Eric M. Henry was convicted by a jury of felony murder, use of a deadly weapon to commit a felony, and conspiracy to commit robbery for the May 2013 stabbing death of Steven Jorgensen; sentences were imposed consecutively.
The State’s case relied on eyewitness/co-conspirator testimony (Critser and Henderson), physical evidence from the scene, autopsy findings by Dr. Robert Bowen (body later cremated), ATM/bank records, recovered debit card/keys, and extensive text-message evidence.
Henry moved pretrial to suppress autopsy-derived evidence under Neb. Rev. Stat. § 29-1913 because the body was released for cremation before he could seek discovery; he did not file the § 29-1913 motion prior to cremation. The motion was denied.
Henry sought a bill of particulars to identify the “potential robbery victim(s)” in the conspiracy count and a severance of that count; the court denied both motions.
The court admitted text-message exhibits (and allowed one exhibit to go to the jury room). Henry raised foundation and hearsay objections to the texts and objected to certain jury instruction language; most objections were overruled.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Henry)	Held
Jury instruction on presumption of innocence (use of phrase “unless and until”)	Instruction correctly states burden and presumption language	Phrase “and until” prejudicially presumed guilt	Affirmed — instructions read together were correct and not misleading
Admission of autopsy evidence after body cremation (§ 29-1913)	§ 29-1913 does not require suppression here and defendant failed to file the discovery motion that would trigger mandatory sanctions	Cremation destroyed evidence; admission violated § 29-1913 and due process	Affirmed — § 29-1913 does not plainly cover whole bodies; mandatory suppression requires a prior § 29-1913 discovery motion; no abuse of discretion in denying suppression
Sufficiency of the conspiracy count / bill of particulars	Information tracked statutory language for conspiracy; naming victim not required	Failure to name the “potential robbery victim(s)” made count IV vague/insufficient	Affirmed — count followed statutory definition; naming victim not necessary
Severance of conspiracy count from homicide counts	Counts were connected parts of a common scheme; joinder proper	Joinder prejudiced Henry by admitting texts that would not be relevant otherwise	Affirmed — counts were joinable and defendant failed to show prejudice
Admission/authentication of text messages	Forensic examiners authenticated message transcripts and recipients; contextual witness testimony linked number to Henry or Critser	Lack of proof who actually sent messages; phone found in post office; risk of spoofing; hearsay	Affirmed — foundation sufficient; Henry’s identity shown by context and witnesses; many texts admissible as party admissions or coconspirator statements; any unrelated Benson–Critser texts were harmless error
Allowing text-message exhibits (exhibit 84) into jury room	Exhibit was nontestimonial, substantive evidence admissible in deliberations	Jury should not have unsupervised access to testimonial materials	Affirmed — exhibit was nontestimonial substantive evidence and proper for jury room
State’s examination assuming messages were from Henry; eliciting witness interpretations of slang	State may rely on record evidence and witnesses familiar with context; testimony helped jury understand slang	Questions improperly assumed authorship; witness speculation as to meaning	Affirmed — court did not abuse discretion; Henry had ample cross-examination opportunities

Key Cases Cited

State v. Brodrick, 190 Neb. 19 (1973) (destruction of evidence can trigger suppression under discovery statute when defendant sought independent testing)
State v. Davlin, 263 Neb. 283 (2002) (discusses whether autopsy parts fall within discovery/suppression provisions and scope of remedies)
State v. Tanner, 242 Neb. 286 (1994) (defendant waived production where no demand was made; discovery motion prerequisite)
State v. Knutson, 288 Neb. 823 (2014) (joinder/severance analysis: offenses joinable when part of common scheme; burden to show prejudice)
State v. Castaneda, 287 Neb. 289 (2014) (jury instruction and presumption of innocence principles)