839 N.W.2d 333
Neb.2013Background
- Darrin D. Smith and co‑defendant Jeremy D. Foster were jointly tried for first‑degree murder (death of Victor Henderson), four counts of second‑degree assault, and related weapons charges stemming from a November 10, 2008 shooting at an Omaha bar; both were convicted and sentenced to life plus additional years.
- Several eyewitnesses placed Smith and Foster together at the bar that night; testimony conflicted on which defendant fired the fatal shot; prosecution proceeded on a theory that Foster shot and Smith aided and abetted.
- Pretrial, the cases were consolidated, severed, and reconsolidated; Smith repeatedly moved to sever and for mistrial arguing prejudice from evidence Foster would elicit against him.
- The State introduced evidence of two October 2008 encounters in which Smith told victims “We don’t fuck with your kind”; the court admitted these without a Rule 404(3) hearing as intrinsic/inextricably intertwined evidence.
- At trial, a police officer testified that a bystander (Tamela) screamed at the scene “It was D‑Wacc” (a nickname for Smith); the trial court admitted that out‑of‑court statement as an excited utterance; Tamela later testified at trial.
- Smith also challenged (1) admission of his prearrest statements, (2) admission of a postmortem photograph, (3) sufficiency of evidence, (4) alleged speedy‑trial violations, and (5) denial of mistrial motions; the Nebraska Supreme Court affirmed.
Issues
| Issue | Smith's Argument | State/Foster Argument | Held |
|---|---|---|---|
| Whether the trial court erred by denying severance of Smith and Foster | Joint trial prejudiced Smith because Foster introduced evidence against him and created a “two‑against‑one” scenario allowing inadmissible evidence | Consolidation proper (same transaction); evidence relied on would have been admissible against Smith in separate trial; limiting instructions suffice | Denial of severance affirmed — no abuse of discretion; Smith failed to show compelling, specific prejudice |
| Admissibility of October 2008 encounters under Neb. Evid. R. 404(2)/(3) | Encounters were prior bad acts; Rule 404(3) hearing required before admission | Encounters were inextricably intertwined with charged offense and formed the factual setting (motive/intent) | Admission upheld as intrinsic/inextricably intertwined; no abuse of discretion |
| Admissibility of Tamela’s out‑of‑court statement (“It was D‑Wacc”) — hearsay/excited utterance | Statement was unreliable, amounted to hearsay, not spontaneous | Statement was made immediately after a startling event while declarant was hysterical; qualifies as excited utterance; declarant testified at trial | Statement admissible as excited utterance; Confrontation Clause not violated because Tamela testified and was cross‑examined |
| Whether admission of Smith’s statements to police should be suppressed (Fourth/Fifth Amendments, Miranda) | Statements obtained during custody/interrogation without warnings; involuntary due to intoxication | Smith voluntarily accompanied officers; statements were non‑inculpatory or volunteered; if error, harmless | Any error harmless: statements were non‑inculpatory or cumulative; no reversible error |
| Motions for mistrial based on admission of evidence implicating Smith from Foster’s defense | Mistrial required because prejudicial evidence was admitted and severance denied | Evidence either admissible in separate trial or properly limited; no actual prejudice shown | Motions for mistrial denied properly; no abuse of discretion |
| Admission of postmortem photograph (Rule 403) | Photograph of wound was cumulative and unfairly prejudicial | Photo relevant to identification/condition of victim and nature of wound; probative value outweighed prejudice | Admission within trial court discretion and affirmed |
| Sufficiency of evidence to convict Smith (aider/abettor theory) | Conflicting eyewitnesses made conviction unreliable | Jury could credit witnesses who placed Smith aiding/facilitating the shooting | Evidence sufficient when viewed in light most favorable to prosecution; conviction affirmed |
| Statutory and constitutional speedy‑trial claims | Delay between filings and trial violated 6‑month statutory limit; constitutional right violated | Periods tolled by plea in abatement, pretrial motions, and defendant waivers; no impermissible delay or prejudice | No statutory violation after tolling; no constitutional violation shown |
Key Cases Cited
- Zafiro v. United States, 506 U.S. 534 (1993) (severance standard; grant only when joint trial would seriously risk compromising a specific trial right or reliable verdict)
- State v. McPherson, 266 Neb. 715 (2003) (joinder/severance principles under § 29‑2002 and abuse‑of‑discretion review)
- Miranda v. Arizona, 384 U.S. 436 (1966) (Miranda warnings and custodial interrogation principles)
- Crawford v. Washington, 541 U.S. 36 (2004) (Confrontation Clause holding that admission of testimonial statements by absent declarant is barred unless unavailable and defendant had prior opportunity to cross‑examine)
- State v. Pullens, 281 Neb. 828 (2011) (standards for excited utterance admissibility and appellate review of hearsay rulings)
- State v. Freemont, 284 Neb. 179 (2012) (discussion of inextricably intertwined evidence and limits on Rule 404 application)