State v. Rush, 11 N.W.3d 394

Background

Victim James Shekie was found shot to death in his trailer on Feb 23, 2021; shell casings and bullets recovered. Feilen and Marques (cooperating witnesses) implicated Deontae Rush, describing a planned robbery of Shekie’s drugs and Rush entering the trailer with a gun. Rush was arrested in Chicago and charged with first-degree murder and use of a firearm to commit a felony.
Law enforcement served a subpoena on Verizon for non‑location call/text records, then obtained warrants (Verizon, Facebook, Snapchat, and a phone) that produced more detailed records including cell‑site/location data and phone content. Rush filed multiple suppression motions; the district court denied them.
The State sought a §27‑404 pretrial hearing to admit evidence that Rush was dealing marijuana; the court held the hearing, admitted hearsay at the hearing, and later admitted the other‑acts evidence at trial for motive.
At trial the State introduced cooperating witness testimony, social‑media and phone messages, surveillance video, shoe/print comparisons, and cell‑tower/location data. Defense tried to present an alibi/domestic‑assault explanation but the key officer (Bruning) was not produced at trial amid subpoena service confusion. Defense did not object to several items at trial.
Rush was convicted by a jury of first‑degree murder and use of a firearm; sentenced to life plus 25–35 years consecutively. He appealed multiple evidentiary rulings, alleged ineffective assistance, prosecutorial misconduct in closing, and insufficiency of firearm evidence. The Nebraska Supreme Court affirmed.

Issues

Issue	State's Argument	Rush's Argument	Held
Were hearsay materials admissible at the §27‑404 hearing?	§27‑404 hearing is a preliminary hearing exempt from the rules of evidence; judge may consider hearsay to determine admissibility.	The rules of evidence apply; hearsay should have been excluded, so §27‑404 proof failed.	Court held §27‑404 hearings are preliminary under §27‑1101(4)(b); hearsay may be considered and the State proved the bad acts by clear and convincing evidence.
Admission of Shekie’s text messages to Brand (time stamps)	Relevant to establish time of last contact; court limited jury to dates/times.	Cumulative and potentially prejudicial.	Admission was within discretion; relevant and not an abuse of discretion.
Admission of photograph of Marques’ pressure sore	Photo corroborates Marques’ inability to walk and supports he wasn’t the shooter.	Photo was inflammatory and invited sympathy/unfair prejudice.	Probative value outweighed prejudice; trial court did not abuse discretion.
Admissibility of phone/location records obtained after subpoena and warrants	Subpoena sought non‑location metadata; third‑party doctrine applies; warrants for site‑location had independent probable cause and were lawful under Carpenter distinctions.	Subpoena was unlawful and tainted subsequent warrants; thus location data should be suppressed.	No warrantless cell‑site/location was obtained via subpoena; third‑party doctrine covers non‑location logs; warrants had independent probable cause; counsel not ineffective for failing to object; no plain error.
Investigator Fields’ identification of Rush in video	Fields had seen and interviewed Rush and compared clothing/appearance; identification was proper foundation; other witnesses also identified Rush.	Fields lacked sufficient personal knowledge to identify defendant in poor‑quality footage.	Foundation sufficient; challenges went to weight, not admissibility; counsel not ineffective and no plain error.
Admission of in‑life photograph of victim (smiling, hardhat)	Photo aids witness identification; admissible even if it humanizes victim.	Photo was unnecessary and unfairly prejudicial.	Photo admissible for identification; not unduly prejudicial; counsel not ineffective for not objecting.
Failure to secure Officer Bruning / alleged prosecutor interference / motion for mistrial & motion for new trial	State denies intentional interference; subpoena/service confusion occurred and defense knew Bruning wouldn’t appear; evidence of warrant would not have supplied an alibi.	Clerk and prosecution errors prevented presentation of corroborating evidence for Rush’s alibi; prosecutor misstated lack of corroboration in closing; mistrial/new trial warranted.	Record showed no prosecutorial misconduct or intentional interference; defense did not request continuance; motion for new trial lacked merit; counsel not ineffective for withdrawing motion.
Ineffective assistance re impeachment, witness preparation, and uncalled alibi witnesses	Many claims are conclusory or not supported by the record; some claims cannot be resolved on direct appeal because record lacks detail.	Trial counsel failed to adequately impeach Feilen, prepare Rush for testimony, and secure alibi witnesses (Young).	Impeachment claim insufficient (trial record showed extensive impeachment). Preparation and failure to call Young cannot be resolved on direct appeal—record inadequate. Other IAC claims lacked merit.
Sufficiency of evidence for use of a firearm to commit a felony	Circumstantial evidence (witnesses saw/said Rush had a gun, heard shots, shell casings found) supports firearm use element.	No physical evidence directly linking Rush to a firearm.	Viewing evidence in light most favorable to prosecution, any rational juror could find beyond a reasonable doubt that Rush used a firearm.

Key Cases Cited

Carpenter v. United States, 585 U.S. 296 (2018) (cell‑site location information over time may implicate a reasonable expectation of privacy)
Smith v. Maryland, 442 U.S. 735 (1979) (pen‑register/third‑party doctrine: numbers dialed not a Fourth Amendment search)
Strickland v. Washington, 466 U.S. 668 (1984) (two‑prong ineffective assistance standard: deficient performance and prejudice)
State v. Knutson, 288 Neb. 823 (2014) (no reasonable expectation of privacy in non‑location phone records held by carrier)
State v. Piper, 289 Neb. 364 (2014) (suppression hearings are preliminary hearings for evidentiary‑rule exemption)
State v. Jennings, 305 Neb. 809 (2020) (discussed cell‑site location issues in light of Carpenter)
State v. Esch, 315 Neb. 482 (2023) (§27‑404 analysis and requirement of clear and convincing proof at pretrial hearing)
State v. Elias, 314 Neb. 494 (2023) (limited cell‑tower records for short period do not implicate Carpenter privacy concerns)