State v. Parnell
294 Neb. 551
| Neb. | 2016Background
- On Oct. 30, 2012, Eriana Carr was killed and Nakia Johnson was shot and survived; Johnson identified the shooter’s vehicle as a blue Nissan Altima but did not see the shooter.
- Parnell (nickname “Laylow”) had threatened Johnson two days before the shooting; he was later charged and convicted of terroristic threats related to that incident.
- Cell-site analysis was contested: the State’s FBI expert (William Shute) testified placing Parnell’s phone in an overlapping coverage area near the crime scene; defense learned of alternative opinions by cellular analyst Michael O’Kelly shortly before trial.
- Defense sought supplemental discovery, moved to continue or exclude Shute, and later renewed a motion after obtaining e-mails and O’Kelly affidavits; the district court denied continuance and allowed Shute to testify.
- O’Kelly performed a drive test during/after trial and critiqued Shute’s methods, concluding tower coverage did not overlap as Shute asserted though Parnell’s phone was still in the general vicinity; defendant moved for a new trial on that basis and lost.
- Jury convicted Parnell of first-degree murder, attempted first-degree murder, two weapon-enhancement counts, and possession of a weapon by a prohibited person; Parnell appealed alleging Brady/§29-1912 violations, erroneous admission of the threat, refusal of an accomplice instruction, and ineffective assistance for not calling O’Kelly.
Issues
| Issue | Parnell’s Argument | State’s Argument | Held |
|---|---|---|---|
| Motion to continue / exclusion (Brady & §29-1912) | State belatedly disclosed O’Kelly’s opinion that a drive test was required and that FBI methods were unreliable; nondisclosure violated due process and §29-1912 | Evidence was disclosed before trial; O’Kelly’s oral opinions were not Brady-material or within §29-1912(1)(e) obligations | Disclosure a week before trial satisfied Brady; §29-1912 did not require disclosure of unrecorded oral opinions or informal commentary; denial of continuance not an abuse of discretion |
| Motion for new trial (newly discovered evidence) | O’Kelly’s drive-test results were newly discovered and material and would likely produce different outcome | O’Kelly’s results did not meaningfully contradict that Parnell’s phone was in the general vicinity and other evidence was strong | O’Kelly’s opinions would not probably produce a substantially different result; district court did not abuse discretion |
| Admission of prior terroristic threat (Rule 404) | Prior threat should be excluded as other-acts evidence under Rule 404 | Threat was inextricably intertwined with the charged crimes and/or admissible for motive/intent | Threat evidence formed part of factual setting and was inextricably intertwined; its admission was not an abuse of discretion |
| Refusal to give accomplice instruction (NJI2d Crim. 5.6) | Nero’s assistance (access to Altima) and lies made her an accomplice, warranting special instruction | Nero’s acts were at most access to vehicle and post‑crime lying (possible accessory after the fact); no evidence she participated in the crime | Accomplice instruction not warranted; general credibility instruction was sufficient |
| Ineffective assistance (failure to call O’Kelly) | Trial counsel should have called O’Kelly to criticize Shute; prejudice likely | O’Kelly’s testimony would not have changed outcome given strong witness and phone-location evidence | Record conclusively shows no reasonable probability of a different result; claim fails |
Key Cases Cited
- Brady v. Maryland, 373 U.S. 83 (constitutional duty to disclose favorable material evidence)
- Daubert v. Merrell Dow Pharm., 509 U.S. 579 (standard for admissibility of expert testimony)
- Strickland v. Washington, 466 U.S. 668 (ineffective assistance two-prong test)
- State v. Smith, 286 Neb. 856 (prior threats inextricably intertwined with charged shootings)
- State v. Mason, 271 Neb. 16 (accomplice instruction not warranted where only post‑crime lies/accessory conduct shown)
- State v. Brown, 214 Neb. 665 (distinguishing which expert communications constitute discoverable reports under statutory discovery)