State v. Smith ( 2013 )

Nebraska Advance Sheets
856 286 NEBRASKA REPORTS
he did not, which satisfied Robbins’ requirement of express
agreement or consent. We agree with the State.
The district court asked Foster’s attorney if he sought
sequestration. It also asked Foster personally if it was correct
that he did not seek sequestration. Foster replied that it was
correct that he did not seek sequestration. This met the require-
ment of Robbins that the defendant expressly agrees to waive
sequestration. We find no merit to Foster’s second assignment
of error.
V. CONCLUSION
Because we find no merit to either of Foster’s assignments
of error, we affirm his convictions and sentences.
Affirmed.
Inbody, Chief Judge, participating on briefs.
Heavican, C.J., not participating.
State of Nebraska, appellee, v.
Darrin D. Smith, appellant.
___ N.W.2d ___
Filed November 15, 2013. No. S-10-1232.
1. Trial: Joinder: Proof. There is no constitutional right to a separate trial. The
right is statutory and depends upon a showing that prejudice will result from a
joint trial.
2. Trial: Joinder: Indictments and Informations. The propriety of a joint trial
involves two questions: whether the consolidation is proper because the defend­
ants could have been joined in the same indictment or information, and whether
there was a right to severance because the defendants or the State would be
prejudiced by an otherwise proper consolidation of the prosecutions for trial.
3. Trial: Joinder: Juries. A court should grant a severance only if there is a seri-
ous risk that a joint trial would compromise a specific trial right of one of the
defendants, or prevent the jury from making a reliable judgment about guilt
or innocence.
4. Trial: Joinder: Proof. To prevail on a severance argument, a defendant must
show compelling, specific, and actual prejudice from the court’s refusal to grant
the motion to sever.
5. ____: ____: ____. A defendant must show that the joint trial caused him or her
such compelling prejudice that he or she was deprived of a fair trial.
Nebraska Advance Sheets
STATE v. SMITH 857
Cite as 286 Neb. 8566. Pleadings: Parties: Judgments: Appeal and Error. A denial of a motion to
sever will not be reversed unless clear prejudice and an abuse of discretion
are shown.
7. Trial: Joinder. A defendant is not considered prejudiced by a joinder where
the evidence relating to both offenses would be admissible in a trial of either
offense separately.
8. Verdicts: Juries: Jury Instructions: Presumptions. Absent evidence to the
contrary, it is presumed that a jury followed the instructions given in arriving at
its verdict.
9. Rules of Evidence. In proceedings where the Nebraska Evidence Rules apply, the
admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial
discretion is involved only when the rules make discretion a factor in determin-
ing admissibility.
10. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence Rules
commit the evidentiary question at issue to the discretion of the trial court, an
appellate court reviews the admissibility of evidence for an abuse of discretion.
11. Judgments: Words and Phrases. An abuse of discretion occurs when a trial
court’s decision is based upon reasons that are untenable or unreasonable or if its
action is clearly against justice or conscience, reason, and evidence.
12. Rules of Evidence: Other Acts. Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show that he or she acted
in conformity therewith. It may, however, be admissible for other purposes, such
as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident.
13. ____: ____. Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Cum. Supp.
2012), does not apply to evidence of a defendant’s other crimes or bad acts if the
evidence is inextricably intertwined with the charged crime. This rule includes
evidence that forms part of the factual setting of the crime or if the other crimes
or bad acts are necessary for the prosecution to present a coherent picture of the
charged crime.
14. ____: ____. Where evidence of crimes is so blended or connected with the ones
on trial so that proof of one incidentally involves the other or explains the cir-
cumstances, it is admissible as an integral part of the immediate context of the
crime charged. Where the other evidence is so integrated, it is not extrinsic and
therefore not governed by Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2)
(Cum. Supp. 2012).
15. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings under the
residual hearsay exception, an appellate court reviews for clear error the factual
findings underpinning a trial court’s hearsay ruling and reviews de novo the
court’s ultimate determination to admit evidence over a hearsay objection.
16. ____: ____: ____. An appellate court reviews for clear error the trial court’s
factual findings underpinning the excited utterance hearsay exception, resolving
evidentiary conflicts in favor of the successful party, who is entitled to every
reasonable inference deducible from the evidence.
17. Rules of Evidence: Hearsay: Proof. Neb. Evid. R. 801(3), Neb. Rev. Stat.
§ 27-801(3) (Reissue 2008), provides that hearsay is a statement, other than one
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858 286 NEBRASKA REPORTS
made by the declarant while testifying at the trial or hearing, offered in evidence
to prove the truth of the matter asserted.
18. Rules of Evidence: Rules of the Supreme Court: Hearsay. Hearsay is not
admissible except as provided by the rules of evidence or by other rules adopted
by the statutes of the State of Nebraska or by the discovery rules of the Nebraska
Supreme Court.
19. Rules of Evidence: Hearsay. For a statement to qualify as an excited utterance,
the following criteria must be established: (1) There must have been a startling
event, (2) the statement must relate to the event, and (3) the statement must have
been made by the declarant while under the stress of the event.
20. ____: ____. The underlying theory of the excited utterance exception is that cir-
cumstances may produce a condition of excitement which temporarily stills the
capacity of reflection and produces utterances free of conscious fabrication.
21. ____: ____. The true test in spontaneous exclamations is not when the exclama-
tion was made, but whether under all the circumstances of the particular excla-
mation the speaker may be considered as speaking under the stress of nervous
excitement and shock produced by the act in issue.
22. Constitutional Law: Witnesses: Appeal and Error. An appellate court
reviews de novo a trial court’s determination of the protections afforded by
the Confrontation Clause of the Sixth Amendment to the U.S. Constitution and
reviews the underlying factual determinations for clear error.
23. Constitutional Law: Witnesses. The Confrontation Clause does not bar admis-
sion of a statement so long as the declarant is present at trial to defend or
explain it.
24. Constitutional Law: Search and Seizure: Motions to Suppress: Appeal and
Error. In reviewing a trial court’s ruling on a motion to suppress based on a
claimed violation of the Fourth Amendment, an appellate court applies a two-part
standard of review. Regarding historical facts, an appellate court reviews the trial
court’s findings for clear error, but whether those facts trigger or violate Fourth
Amendment protections is a question of law that an appellate court reviews inde-
pendently of the trial court’s determination.
25. Motions to Suppress: Confessions: Constitutional Law: Miranda Rights:
Appeal and Error. In reviewing a motion to suppress a confession based on
the claimed involuntariness of the statement, including claims that it was pro-
cured in violation of the safeguards established by the U.S. Supreme Court in
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966),
an appellate court applies a two-part standard of review. With regard to his-
torical facts, an appellate court reviews the trial court’s findings for clear error.
Whether those facts suffice to meet the constitutional standards, however, is
a question of law, which an appellate court reviews independently of the trial
court’s determination.
26. Constitutional Law: Appeal and Error. Violations of the Fourth Amendment
are subject to harmless error analysis.
27. Miranda Rights: Appeal and Error. Violations of Miranda v. Arizona, 384
U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), are subject to a harmless
error analysis.
Nebraska Advance Sheets
STATE v. SMITH 859
Cite as 286 Neb. 85628. Motions for Mistrial: Appeal and Error. Whether to grant a mistrial is within
the trial court’s discretion, and an appellate court will not disturb its ruling unless
the court abused its discretion.
29. Motions for Mistrial. A party must premise a motion for mistrial upon actual
prejudice, not the mere possibility of prejudice.
30. Criminal Law: Motions for Mistrial: Appeal and Error. A mistrial is properly
granted in a criminal case where an event occurs during the course of a trial that
is of such a nature that its damaging effect cannot be removed by proper admoni-
tion or instruction to the jury and thus prevents a fair trial.
31. Trial: Photographs. The admission of photographs of a gruesome nature rests
largely with the discretion of the trial court, which must determine their relevancy
and weigh their probative value against their prejudicial effect.
32. Homicide: Photographs. In a homicide prosecution, photographs of a victim
may be received into evidence for the purpose of identification, to show the con-
dition of the body or the nature and extent of wounds and injuries to it, and to
establish malice or intent.
33. Criminal Law: Convictions: Evidence: Appeal and Error. In reviewing a suf-
ficiency of the evidence claim, whether the evidence is direct, circumstantial, or a
combination thereof, the standard is the same: An appellate court does not resolve
conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evi-
dence; such matters are for the finder of fact. The relevant question is whether,
after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt.
34. Constitutional Law: Trial. While one or more trial errors might not, standing
alone, constitute prejudicial error, their cumulative effect may deprive a defend­
ant of his or her constitutional right to a public trial by an impartial jury.
35. Speedy Trial. Every person indicted or informed against for any offense shall be
brought to trial within 6 months, as computed under Neb. Rev. Stat. § 29-1207(Cum. Supp. 2012).
36. Constitutional Law: Speedy Trial. Determining whether a defendant’s constitu-
tional right to a speedy trial has been violated requires a balancing test in which
the courts must approach each case on an ad hoc basis.
37. Judgments: Speedy Trial: Appeal and Error. As a general rule, a trial court’s
determination as to whether charges should be dismissed on speedy trial grounds
is a factual question which will be affirmed on appeal unless clearly erroneous.
38. Appeal and Error. In order to be considered by an appellate court, an alleged
error must be both specifically assigned and specifically argued in the brief of the
party asserting the error.
Appeal from the District Court for Douglas County: P eter
C. Bataillon, Judge. Affirmed.
Peder Bartling, of Bartling Law Offices, P.C., L.L.O., for
appellant.
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Jon Bruning, Attorney General, and Stacy M. Foust for
appellee.
Darrin D. Smith, pro se.
Wright, Connolly, Stephan, McCormack, and Miller-
Lerman, JJ., and Cassel, Judge.
Wright, J.
I. NATURE OF CASE
Darrin D. Smith was charged with one count of murder in
the first degree, four counts of assault in the second degree,
and five counts of use of a deadly weapon to commit a felony.
His codefendant, Jeremy D. Foster, was charged with the same
counts, and the two were tried jointly. The jury convicted both
Smith and Foster on all counts, and they were each sentenced
to life imprisonment plus 96 to 150 years. Smith and Foster
perfected timely separate appeals to this court and assign dif-
ferent errors. We address their appeals in separate opinions. We
affirm Smith’s convictions and sentences.
II. FACTS
1. Background
Brothers Victor Henderson and Cory Henderson belonged to
the “Pleasantview” or “PMC” gang in Omaha, Nebraska. The
defendant, Smith, was a member of the rival “40th Avenue”
gang. Corey had known Smith since Corey was 15. Smith and
Victor were good friends.
Corey and Victor were federally indicted in 2003 and
2004, respectively. Both agreed to plead guilty and testify
for the government in exchange for more lenient sentencing.
When Corey and Victor were released from federal prison in
2007, they were considered “snitches” by their community
in Omaha.
Following their release, Corey and Victor first saw Smith
at a party in October 2008. Smith told Corey, “We don’t fuck
with your kind” or “we don’t mess with your kind.” About
2 weeks before the shootings, Corey saw Smith again at an
American Legion Hall in Omaha (the Legion). The Legion is
considered a bar for Corey and Victor’s gang.
Nebraska Advance Sheets
STATE v. SMITH 861
Cite as 286 Neb. 856On November 9, 2008, Corey, Victor, and several of their
family members went to the Legion. Smith and Foster entered
the bar. Both were wearing hooded sweatshirts (hoodies). They
were in the Legion a short time, and before they left, they
looked and nodded toward Corey and Victor.
Around closing time, Victor attempted to break up a fight
in the parking lot. Smith and Foster returned, and Corey and
Victor were shot. The trial testimony was in conflict as to the
identity of the shooter. Officers responded to the Legion and
found a chaotic scene. Five people had been shot. Victor was
fatally shot in the neck. Four others were wounded.
Smith and Foster were arrested later that month. They were
both charged with one count of first degree murder, four counts
of second degree assault, and five counts of use of a deadly
weapon to commit a felony, and their cases were consolidated
for trial.
2. Trial Testimony
(a) Robert Wiley
Officer Robert Wiley testified that he received a call at
12:44 a.m. on November 10, 2008. He found Victor lying in
blood with a gunshot wound to his neck. Wiley observed a
woman who was screaming and crying. Over Smith’s objec-
tion, Wiley testified that Tamela Henderson was screaming, “It
was D-Wacc, it was D-Wacc.” Other testimony established that
Smith is known as D-Wacc.
(b) Corey Henderson
Corey testified that he saw two people wearing hoodies
come into the Legion with the hoods over their heads. Corey
said that he recognized the individual in the black hoodie as
Smith. The second person was light skinned, had a braid, wore
a gray hoodie, and walked with a limp. Corey testified that he
had never seen the individual in the gray hoodie prior to that
night. Corey later identified the individual in a gray hoodie
as Foster.
While at the Legion, Smith gave Corey “a hateful look or a
stare.” Corey also saw Smith and Foster looking and nodding
toward him and Victor. Smith and Foster left the Legion after
about 10 minutes.
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Later that evening, Victor attempted to stop a fight in the
parking lot of the Legion. When Corey noticed that Victor
turned his head, Corey turned to see what caught Victor’s
attention. He saw that Smith and Foster had returned and were
only about 6 or 7 feet away. Smith and Foster had switched
hoodies; Smith was now wearing the gray hoodie, and Foster
was wearing the black hoodie.
Corey testified, “I [saw] like a gesture and then I turned
real quick and I could just see a flash.” The gesture was “like
maybe they [were] caught off guard, or it was a movement.”
When Smith made the gesture, Corey did not see Smith with a
gun. Corey then saw “fire” and heard “a loud boom” coming
from the direction of Foster. Corey began running. Eventually,
he could not run anymore because he had been shot in the leg.
According to Corey, Foster was the only shooter.
At trial, Foster impeached Corey, because previously, Corey
had told police that Smith had a gun and had handed it to
Foster before the shooting. Corey had also told police he
thought both Smith and Foster may have been shooting at him.
The court instructed the jury three times that this evidence was
to be used solely for impeachment.
(c) Shampagne Swift
Shampagne Swift was at the Legion that evening and saw
Smith and Foster. She had not seen Foster before, but testified
he wore a black hoodie, had light skin, and had braids. Smith
and Foster left the bar a different way than they entered and
went past Corey and Victor’s table. Later, as Shampagne was
walking toward her mother’s house, she heard shots.
(d) Tameaka Smith
Tameaka Smith was in her van in the parking lot when the
gunshots began. She saw someone in a black hoodie shooting
a gun from either a crouching position or a shooter stance. She
said the shooter was skinny and taller than her. She testified
she was about 5 feet 6 inches or 5 feet 7 inches tall. She did
not recall whether someone had been next to the shooter.
Nebraska Advance Sheets
STATE v. SMITH 863
Cite as 286 Neb. 856(e) Martini Swift
Martini Swift saw Smith come in the bar by himself. She
walked out of the bar with him for a cigarette. Smith left, and
Martini lit a cigarette. She was one of the participants in the
fight Victor attempted to stop in the parking lot. When Martini
heard gunfire, she started to run. She did not see Smith outside
the bar at the time of the shooting.
(f) Tenisha Bennett
Tenisha Bennett was less than 5 feet from Victor as he was
trying to break up the fight in the parking lot. She turned and
saw a person standing close to Victor and pointing a gun at
him. The man with the gun was wearing a black coat with a
hood pulled far over his face. It was possible someone else
was standing next to the shooter, but the shooter seemed to be
alone. Tenisha’s look at the shooter was brief. She knew Foster
and stated she did not see him that evening.
(g) Jacqueline Edwards
Jacqueline Edwards saw someone come into the bar with
Smith. That person was light skinned, had two long pigtails,
and wore a gray hoodie with the hood pulled up. Jacqueline
was at a vehicle in the parking lot when she heard five or
six gunshots.
(h) Tamela Henderson
Tamela Henderson left the bar at the same time as Victor,
Corey, and a few others. She was walking back toward the bar
when she received a telephone call. As she walked and talked
on her cell phone, she was forced to sidestep two men. She
saw their faces; one was Smith, and the other was a person
she had seen in the bar earlier that evening. They were wear-
ing the same hoodies they had been wearing in the bar. Smith
had a gun in his hand. She did not see Smith’s companion with
a gun. Tamela heard gunfire a few seconds later. She did not
see the shooter. She ran to the door of the bar, someone let her
in, and she stayed until the gunshots stopped. She went to the
parking lot and was screaming, “It was D-Wacc.”
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(i) Tequila Bennett
Tequila Bennett was with Tamela outside the bar when
Tamela had to sidestep Smith and Foster. Smith and Foster
were wearing the same hoodies they had worn inside the bar.
Smith was taking a gun from his waistband with his right hand.
Tequila was at the front door of the bar when she heard gun-
shots. She looked back in the direction of the gunfire and saw
Smith firing the gun.
(j) Terrance Edwards
Terrance Edwards was at the Legion when Smith made a
statement before the shooting. He testified that he heard Smith
say, “[W]e don’t fuck with your kind.”
On the night of the shooting, Terrance saw Smith and Foster
come into the bar. Smith wore a black hoodie, and Foster wore
a gray hoodie. Foster walked with a limp. After leaving the bar,
Terrance saw Victor stop a fight. Smith and Foster arrived at
the scene. Terrance testified that the two had switched hood-
ies, so Smith wore the gray hoodie, and Foster wore the black
hoodie. They were both wearing their hoods up.
Terrance saw Foster shoot Victor. Terrance ran between cars
and saw Smith and Foster chasing Corey. Foster limped after
Smith as the two ran away. Terrance then realized he had been
shot. He told police he had a good look at the person with the
black hoodie, who had ponytails or braids. He told officers
Smith was the shooter, meaning that Smith masterminded
the shooting.
(k) Christopher Spencer
Christopher Spencer was a detective with the Omaha Police
Department. He conducted approximately 26 interviews for the
case. Spencer interviewed Smith and testified that Smith said
he had been at the Legion by himself.
Before Foster began his cross-examination of Spencer, Smith
requested a sidebar, where he moved to sever and for a mistrial
on the basis that Foster would elicit impeachment evidence
from Spencer that would not be admitted in a separate trial
of Smith. Smith argued that the prejudice from the evidence
would be so great that it could not be cured by a limiting
instruction. The court overruled the motions.
Nebraska Advance Sheets
STATE v. SMITH 865
Cite as 286 Neb. 856On cross-examination of Spencer, Foster elicited impeach-
ment evidence against Tameaka and Corey. When Smith
cross-examined Spencer, he also attempted to impeach Corey
and other witnesses. Spencer testified that Smith stated to
police that he had nothing to do with the shooting. Spencer
admitted he received contradictory accounts of the shooting
from witnesses.
3. Verdicts and Sentences
The jury convicted both Smith and Foster on all counts.
Both were sentenced to life imprisonment for first degree mur-
der, 40 to 50 years’ imprisonment for use of a deadly weapon
to commit murder, 4 to 5 years’ imprisonment for each assault,
and 10 to 20 years’ imprisonment for each use of a weapon
to commit assault. Because his sentences were consecutive,
Smith’s total sentence was life imprisonment plus 96 to 150
years. He received credit for 729 days served.
Smith appeals. We have a statutory obligation to hear all
appeals in cases where the defendant is sentenced to life impris-
onment. See Neb. Rev. Stat. § 24-1106(1) (Reissue 2008).
III. ASSIGNMENTS OF ERROR
Smith assigns the district court erred in (1) refusing to sever
his trial from Foster’s; (2) allowing the State to introduce evi-
dence of gang membership and prior bad acts without a hearing
pursuant to Neb. Evid. R. 404(3), Neb. Rev. Stat. § 27-404(3)
(Cum. Supp. 2012); (3) allowing the State to introduce inad-
missible hearsay evidence in violation of his right to confronta-
tion; (4) overruling his motion to suppress a statement he made
to law enforcement; (5) overruling his motions for mistrial; and
(6) admitting an unfairly prejudicial autopsy photograph. Smith
also claims (7) there was insufficient evidence to convict him
and (8) the combination of errors requires reversal. In a pro
se supplemental brief, Smith assigns that (9) his speedy trial
rights were violated.
IV. ANALYSIS
Smith and Foster assign different errors. Accordingly, we
address their appeals in separate opinions. We consider the
errors assigned by Smith in the order they appear in his brief.
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866 286 NEBRASKA REPORTS
1. Severance
Smith first alleges the district court erred in failing to sever
his trial from Foster’s.
(a) Principles of Law
[1] There is no constitutional right to a separate trial. State v.
McPherson, 266 Neb. 715, 668 N.W.2d 488 (2003). The right
is statutory and depends upon a showing that prejudice will
result from a joint trial. Id. The burden is on the party chal-
lenging a joint trial to demonstrate how and in what manner
he or she was prejudiced. Id. A trial court’s ruling on a motion
for consolidation of prosecutions properly joinable will not be
disturbed on appeal absent an abuse of discretion. Id.The joinder of defendants is governed by Neb. Rev. Stat.
§ 29-2002 (Reissue 2008), which states, in relevant part:
(2) The court may order two or more . . . informations
. . . to be tried together if the offenses could have been
joined in a single . . . information . . . or if the defendants,
if there is more than one, are alleged to have participated
in the same act or transaction or in the same series of acts
or transactions constituting an offense or offenses. The
procedure shall be the same as if the prosecution were
under such single . . . information . . . .
(3) If it appears that a defendant or the state would be
prejudiced by a joinder of offenses in an . . . information
. . . or by such joinder of offenses in separate . . . informa-
tions . . . for trial together, the court may order an election
for separate trials of counts [or] informations . . . , grant a
severance of defendants, or provide whatever other relief
justice requires.
[2] As this court has interpreted § 29-2002,
[t]he propriety of a joint trial involves two questions:
whether the consolidation is proper because the defend­
ants could have been joined in the same indictment or
information, and whether there was a right to severance
because the defendants or the State would be prejudiced
by an otherwise proper consolidation of the prosecutions
for trial.
McPherson, 266 Neb. at 723, 668 N.W.2d at 497.
Nebraska Advance Sheets
STATE v. SMITH 867
Cite as 286 Neb. 856(b) Additional Facts
In February 2010, the State moved to consolidate Smith’s
and Foster’s trials. Smith and Foster both argued against con-
solidation. Smith argued a joint trial would allow the State to
present evidence against both defendants that was inadmissible
against one defendant. The district court took the matter under
advisement, and on April 9, it consolidated the trials.
Shortly thereafter, Smith moved to sever. He argued that if
the State proceeded against Smith and Foster jointly, it could
present evidence against Foster that would be inadmissible
against Smith in an individual trial and that the prejudice could
not be cured by a limiting instruction. He represented that wit-
nesses would testify Foster said Smith told him to kill Victor.
The court sustained Smith’s motion to sever.
The State moved for reconsideration. It asserted it would not
offer evidence against Smith that would be inadmissible in a
separate trial. The district court subsequently issued an order
reconsolidating the cases for trial.
Before trial, Smith filed an amended motion to sever. He
alleged that the defendants had conflicting, antagonistic, and
mutually exclusive defenses, that each would provide evidence
the other committed the shooting, and that impeachment tes-
timony would be admitted in a joint trial that would not be
admitted in a separate trial of Smith. The district court took the
matter under advisement and later overruled the motion. Before
the presentation of evidence, both defendants again moved to
sever and both motions were overruled.
(c) Resolution
As noted previously,
[t]he propriety of a joint trial involves two questions:
whether the consolidation is proper because the defend­
ants could have been joined in the same indictment or
information, and whether there was a right to severance
because the defendants or the State would be prejudiced
by an otherwise proper consolidation of the prosecutions
for trial.
State v. McPherson, 266 Neb. 715, 723, 668 N.W.2d 488, 497
(2003). We address each of these questions in turn.
Nebraska Advance Sheets
868 286 NEBRASKA REPORTS
(i) Consolidation
The charges against both Smith and Foster relate to their
alleged involvement in Victor’s death. As Smith acknowledges,
the charges in the amended information represent offenses of
the same or similar character as those with which Foster was
charged. Consolidation is proper if the offenses are part of a
factually related transaction or series of events in which both
of the defendants participated. Id. Accordingly, the charges
against Smith and Foster could have been consolidated in a
single information and the first requirement for joinder has
been satisfied.
(ii) Prejudice
Despite the potential for proper consolidation, Smith con-
tends that he was prejudiced by the joint trial. Primarily, Smith
alleges that he was prejudiced because evidence was presented
that would have been inadmissible in a separate trial against
him. He also alleges that he was prejudiced by the joint trial
because it allowed the State to engage in the collective pros-
ecution of him and Foster and created a situation in which the
State and Foster both adduced evidence implicating Smith in
the crimes. Smith’s argument identifies the practical implica-
tion of collective prosecution and the “two-against-one sce-
nario” as allowing the State and Foster to introduce evidence
against Smith that would otherwise not have been admitted in
a separate trial. Brief for appellant at 21. Thus, all of Smith’s
arguments for prejudice essentially come down to the question
whether the joint trial allowed for the admission of otherwise
inadmissible evidence.
Under Fed. R. Crim. P. 14(a), like under § 29-2002, sever-
ance is allowed only upon a showing of prejudice. Because of
this similarity between the state and federal rules relating to
severance of previously joined trials, we find federal case law
to be instructive in determining when there is prejudice such
that severance should be granted.
[3] Under federal case law interpreting rule 14(a), a court
“should grant a severance . . . only if there is a serious risk
that a joint trial would compromise a specific trial right of one
of the defendants, or prevent the jury from making a reliable
Nebraska Advance Sheets
STATE v. SMITH 869
Cite as 286 Neb. 856judgment about guilt or innocence.” Zafiro v. United States,
506 U.S. 534, 539, 113 S. Ct. 933, 122 L. Ed. 2d 317 (1993).
Prejudice serious enough to meet this standard may occur
“when evidence that the jury should not consider against a
defendant and that would not be admissible if a defendant were
tried alone is admitted against a codefendant,” when “many
defendants are tried together in a complex case and they have
markedly different degrees of culpability,” when “essential
exculpatory evidence that would be available to a defendant
tried alone were unavailable in a joint trial,” or in other situa-
tions. Id.[4,5] A defendant seeking severance must meet a high bur-
den. When the parties are before a trial court, “it is well settled
that defendants are not entitled to severance merely because
they may have a better chance of acquittal in separate trials.”
506 U.S. at 540. Rather, to prevail on a severance argument, a
defendant “must show ‘compelling, specific, and actual preju-
dice from [the] court’s refusal to grant the motion to sever.’”
U.S. v. Driver, 535 F.3d 424, 427 (6th Cir. 2008) (quoting U.S.
v. Saadey, 393 F.3d 669 (6th Cir. 2005)). Stated another way,
“a defendant must show that the joint trial caused him such
compelling prejudice that he was deprived of a fair trial.” U.S.
v. Hill, 643 F.3d 807, 834 (11th Cir. 2011). There is a prefer-
ence for joint trials. See Zafiro, supra.Even once prejudice is shown, a defendant is not entitled
to severance. See id. The federal rule governing severance
“leaves the determination of risk of prejudice and any remedy
that may be necessary to the sound discretion of the district
courts.” 506 U.S. at 541. “When the risk of prejudice is high,
a district court is more likely to determine that separate trials
are necessary, but . . . less drastic measures, such as limiting
instructions, often will suffice to cure any risk of prejudice.”
506 U.S. at 539.
As this federal case law highlights, a joint trial can preju-
dice a defendant in many ways other than allowing for the
admission of evidence that would be inadmissible in separate
trials. The U.S. Supreme Court has recognized multiple forms
of prejudice that can result from joint trial discussions of
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severance under rule 14(a), which is similar to the Nebraska
statute that allows for severance. See Zafiro, supra.However, we do not consider these other possible forms
of prejudice, because Smith does not argue them on appeal.
Unlike his codefendant, Smith does not argue that the joint
trial reduced the State’s burden of proof or that it created the
possibility of an unreliable verdict. Rather, Smith argues only
that the collective prosecution and the “two-against-one sce-
nario” resulting from the joint trial allowed for the introduction
of evidence that would not have been admissible in a separate
trial. Brief for appellant at 21.
[6] On appeal, “‘[a] denial of a motion to sever will not
be reversed unless clear prejudice and an abuse of discre-
tion are shown.’” U.S. v. Bauer, 551 F.3d 786, 791 (8th Cir.
2008) (quoting U.S. v. Noe, 411 F.3d 878 (8th Cir. 2005)). An
appellate court “will find such an abuse only where the denial
caused the defendant ‘substantial prejudice . . . amounting to
a miscarriage of justice.’” U.S. v. O’Connor, 650 F.3d 839,
859 (2d Cir. 2011) (quoting United States v. Bari, 750 F.2d
1169 (2d Cir. 1984)). The Eighth Circuit has found that the
denial of a motion to sever will be reversed only when denying
severance “‘resulted in severe or compelling prejudice.’” U.S.
v. Mann, 685 F.3d 714, 718 (8th Cir. 2012) (quoting U.S. v.
Rimell, 21 F.3d 281 (8th Cir. 1994)). “‘Severe prejudice occurs
when a defendant is deprived of an appreciable chance for an
acquittal’” that would have existed in a separate trial. Id. (quot-
ing U.S. v. Garrett, 648 F.3d 618 (8th Cir. 2011)).
As such, Smith has the burden of proving that he was
severely prejudiced by the denial of severance. To meet
this burden, Smith alleges only that he was prejudiced by
the collective prosecution and the “two-against-one scenario”
because it allowed for the introduction of evidence that would
not have been admissible in a separate trial. Brief for appel-
lant at 21.
[7] In the case of the joinder of offenses, “a defendant is not
considered prejudiced by a joinder where the evidence relat-
ing to both offenses would be admissible in a trial of either
offense separately.” State v. Schroeder, 279 Neb. 199, 213,
777 N.W.2d 793, 805 (2010). Smith argues that this principle
Nebraska Advance Sheets
STATE v. SMITH 871
Cite as 286 Neb. 856should also apply to the joinder of defendants. He contends
that “[b]y logical extension . . . a defendant is prejudiced by
the joinder of trials where the evidence relating to one defend­
ant would be inadmissible in a trial of a codefendant. Such
was the instant case.” Brief for appellant at 20.
We agree with Smith that he could have been prejudiced
if evidence was in fact admitted in the joint trial that would
have been inadmissible against him in a separate trial. In at
least one previous case involving the joinder of defendants,
we have held that joinder was not prejudicial error where the
evidence to which the defendant objected would have been
admissible in the trial of either defendant separately. See State
v. McPherson, 266 Neb. 715, 668 N.W.2d 488 (2003). But we
do not find that the “[e]xamples of [p]rejudice” identified by
Smith show that evidence was admitted at the joint trial that
would have been inadmissible against him if separate trials
had been held. Brief for appellant at 20. We consider in turn
Smith’s examples of evidence that was allegedly admitted to
his prejudice in the joint trial.
a. Foster’s Incrimination
of Smith
Smith alleges that Foster’s defense of claiming that Smith,
and not Foster, was the shooter proves that Smith was preju-
diced by the joint trial. He provides examples of alleged
prejudice resulting from Foster’s defense throughout the trial.
Notably, each example relates to Foster’s adducing evidence
against Smith in furtherance of Foster’s own defense. During
a hearing on a pretrial motion in limine, Foster asked the
court for an order allowing him to present Tamela’s state-
ment identifying Smith as the shooter. Smith claims this
shows that joinder forced Smith to defend against both the
State and Foster, creating a “two-against-one scenario.” Id.
at 21. According to Smith, Foster’s opening statement further
showed that Foster’s defense was to “point[] the finger at
Smith” by highlighting the evidence of certain witnesses. Id.
at 22.
Smith cites other examples of Foster’s adducing evi-
dence against Smith from the evidentiary portion of the
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trial: (1) Foster’s cross-examination of Wiley “regarding the
physical characteristics of the shooting suspect being con-
sistent with Smith rather than Foster,” id. at 22; (2) Foster’s
impeachment of Corey with statements Corey made to the
police about Smith’s handing a firearm to Foster prior to
the shooting; and (3) Foster’s questioning of Tameaka that
“brought forth evidence that the shooter’s physical charac-
teristics were consistent with Smith’s physical appearance,”
id. at 24. Smith contends that these individual examples of
Foster’s defense prove Smith was prejudiced by the joint trial.
We do not agree.
The fact that Foster and the State allegedly were both
trying to implicate Smith as the shooter does not show that
Smith was prejudiced by the joint trial. As noted previ-
ously, this scenario could lead to multiple forms of prejudice.
Nonetheless, Smith argues solely that Foster’s defense of
“point[ing] the finger” prejudiced Smith by introducing evi-
dence that would have been inadmissible if offered by the
State in a separate trial. Id. at 22. Indeed, all of his examples
of prejudice identify allegedly inadmissible evidence adduced
by Foster during the joint trial. But, as we will explain below,
every piece of evidence identified by Smith could have been
introduced by the State in a separate trial. Thus, the joint trial
did not allow for the admission of otherwise inadmissible
evidence by allowing Foster to incriminate Smith as part of
Foster’s own defense.
i. Tamela’s Statement
Smith claims prejudice because Foster filed a pretrial motion
to allow him to introduce incriminating evidence against Smith
in the form of Tamela’s statement. Yet, Smith fails to explain
why the State could not have adduced this same incriminat-
ing evidence against him in a separate trial. Although Foster,
instead of the State, argued in pretrial for the admission of
Tamela’s statement as an excited utterance, the State could have
made this same argument for the admission of Tamela’s state-
ment instead of Foster. Indeed, the State did adduce Tamela’s
statement at trial through Wiley and argued for its admission
based on the excited utterance exception. We will address the
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STATE v. SMITH 873
Cite as 286 Neb. 856admissibility of Tamela’s statement in Smith’s third assignment
of error. But assuming for the moment that Tamela’s statement
was admissible as an excited utterance, it would have been
admissible against Smith whether Foster or the State intro-
duced it and whether Smith was tried jointly with Foster or
separately. Therefore, the fact that Foster planned to introduce
Tamela’s statement against Smith does not show that Smith
was prejudiced by joinder.
ii. Cross-Examination
of Wiley
Smith contends he was prejudiced because Foster attempted
to elicit testimony from Wiley regarding the physical char-
acteristics of the shooting suspect, which characteristics
were allegedly consistent with Smith’s being the shooter,
not Foster. The district court sustained Smith’s objection to
this line of questioning, but he nonetheless argues that the
occurrence shows that he and Foster were “working against
each other’s interests.” Brief for appellant at 22. Ultimately,
Smith’s argument on this issue turns on the fact that he was
forced to defend against incriminating evidence elicited by
Foster, instead of by the State. Smith identifies no other
adverse effects from Foster’s adducing this evidence rather
than the State.
Because Smith was successful in keeping out Wiley’s testi-
mony about the physical characteristics of the shooter, we find
no prejudice from this incident. In a separate trial, the State
could have attempted to adduce this testimony from Wiley and
Smith could have objected on the same grounds as in the joint
trial. Otherwise inadmissible evidence was not admitted due to
joinder. Rather, inadmissible evidence was excluded as inad-
missible. Smith did not prove that he suffered prejudice from
Foster’s cross-examination of Wiley.
To the extent that Smith’s argument is an attempt to high-
light the conflicting nature of his and Foster’s defenses in
the joint trial, we find this argument to be without merit. The
mere claim that defenses of codefendants are antagonistic is
insufficient reason to grant separate trials where the charges
against all the defendants result from the same series of acts
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and would be proved by similar evidence. State v. Pelton,
197 Neb. 412, 249 N.W.2d 484 (1977), abrogated on other
grounds, State v. Morris, 251 Neb. 23, 554 N.W.2d 627(1996). Smith and Foster were both charged based on their
alleged involvement in the shooting at the Legion. And given
the State’s theory that Smith aided and abetted Foster in the
shooting, similar evidence could be used to prove that both
were involved. Smith’s and Foster’s defenses, although con-
flicting, were not mutually exclusive, such that the jury could
not acquit one of them, based on his defense, without convict-
ing the other. Rather, based on the evidence, the jury could
conclude that Smith committed the shootings alone, Foster
committed the shootings alone, Smith and Foster committed
the shootings together, or neither Smith nor Foster committed
the shootings. The same evidence could be used to convict
both Smith and Foster for their alleged involvement in the
shootings. Therefore, the mere fact that Smith’s defense con-
flicted with Foster’s was not sufficient, under our existing case
law, to mandate separate trials.
iii. Impeachment of Corey
At trial, Foster impeached Corey with statements Corey
made to the police about Smith’s handing a firearm to Foster
prior to the shooting and about whether Smith and Foster might
both have been shooting at Corey. The district court admitted
the evidence with a limiting instruction that the evidence was
to be considered only to determine if Corey was a credible
witness. The court also instructed the jury that it could not
consider these statements as evidence that Smith had a gun
and that impeachment referred only to challenges to the wit-
ness’ memory.
[8] Smith claims that if he were tried separately, Corey
would not have been impeached by Foster. But the same evi-
dence used to impeach Corey in the joint trial would have been
admissible as impeachment evidence against Corey in a sepa-
rate trial of Smith. The district court issued multiple limiting
instructions to the jury that the evidence was to be used only
for impeachment. Absent evidence to the contrary, it is pre-
sumed that a jury followed the instructions given in arriving at
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STATE v. SMITH 875
Cite as 286 Neb. 856its verdict. State v. McPherson, 266 Neb. 715, 668 N.W.2d 488(2003). Accordingly, we presume that the statements elicited
from Corey on cross-examination were used in the joint trial
for purposes of impeachment and not as proof that Smith had a
gun. This same evidence would have been admissible in a sep-
arate trial of Smith for the purpose of impeachment. Therefore,
joinder did not prejudice Smith by allowing the presentation of
this impeachment evidence.
iv. Questioning of Tameaka
Finally, Smith points to Foster’s questioning of Tameaka as
proof that he was prejudiced by a joint trial in which he was
forced to defend against two parties. He claims that Foster
elicited testimony from Tameaka that the shooter’s height and
weight were consistent with Smith.
In the case of this evidence, like all the other evidence
identified by Smith, he has failed to show that Tameaka’s
description of the shooter would be inadmissible against him
in a separate trial. Accordingly, he has not shown that he was
prejudiced by the admission of her description in a joint trial.
v. Conclusion as to
Foster’s Defense
In summary, Smith argues that he was prejudiced by the
joint trial for the reason that he was required to defend himself
against evidence adduced by both Foster and the State. But
Smith has not identified any evidence Foster could introduce
against him that the State could not also introduce. And he
does not provide any other explanation why Foster’s defense
prejudiced Smith. The fact that Foster introduced evidence
incriminating Smith as part of his defense did not show that
Smith was prejudiced by joinder.
b. Collective Prosecution
Smith argues that he was prejudiced by the joint trial
because it allowed the State to collectively prosecute him
and Foster. In support of this argument, he alleges that the
State’s opening statement “suggested to the jury that it could
evaluate Smith and Foster collectively rather than assess their
individual conduct when evaluating their culpability, if any.”
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Brief for appellant at 21. Smith also contends that joinder
allowed the State to avoid electing which defendant commit-
ted which criminal act and, consequently, enabled the State
to introduce “conflicting evidence” that could not have been
introduced in a separate trial. Id. at 26. Considering only
those arguments put forth by Smith, we find no prejudice to
him in the alleged collective prosecution of him and Foster
for three reasons.
First, the joint trial did not allow the State to collectively
prosecute Smith and Foster without identifying the shooter,
as Smith contends. The State argued to the jury that Foster
was the shooter and that Smith aided Foster. It did not avoid
deciding whether Smith or Foster was guilty. Rather, under the
State’s theory that Smith aided and abetted Foster, both were
guilty of independent acts.
Second, the district court clearly instructed the jury that the
guilt of each defendant was to be considered independently.
Absent evidence to the contrary, it is presumed that a jury fol-
lowed the instructions given in arriving at its verdict. State v.
McPherson, 266 Neb. 715, 668 N.W.2d 488 (2003).
Third, despite having the burden of proving prejudice, see
id., Smith does not explain why the State’s conflicting evi-
dence would be inadmissible in a separate trial. He merely
points out that pieces of the State’s evidence conflict. The
pieces of evidence Smith identifies as conflicting relate to
various details of the shooting and are drawn from the testi-
mony of multiple eyewitnesses. Not surprisingly, the eyewit-
ness accounts do not agree on all details of the shooting. But
such discrepancies do not have a bearing on admissibility. As
we have previously noted, where “witnesses contradict[] each
other,” it is “simply a matter of credibility.” State v. Pierce,
204 Neb. 433, 438, 283 N.W.2d 6, 9 (1979), overruled on
other grounds, State v. Ellis, 214 Neb. 172, 333 N.W.2d 391(1983). The conflicting nature of the eyewitness testimony
alone does not make it inadmissible. In the absence of any
other reason why the eyewitness testimony identified by
Smith was inadmissible, we find that he has failed to prove
prejudice from the State’s admission of such testimony at the
joint trial.
Nebraska Advance Sheets
STATE v. SMITH 877
Cite as 286 Neb. 856(iii) Conclusion
as to Joinder
For all of the aforementioned reasons, we find that Smith
has failed to show he was prejudiced by joinder of his case
with Foster’s. As such, the district court did not abuse its dis-
cretion in deciding not to sever Smith’s case from Foster’s.
Smith’s first assignment of error has no merit.
2. Rule 404 Evidence
Smith alleges the district court erred by admitting evidence
of his gang membership and evidence of his prior acts without
holding a hearing as required by rule 404(3). His challenges to
the admission of evidence relate to two encounters involving
Smith, Corey, and Victor in October 2008.
(a) Principles of Law
[9-11] In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by the
Nebraska Evidence Rules; judicial discretion is involved only
when the rules make discretion a factor in determining admis-
sibility. State v. Merchant, 285 Neb. 456, 827 N.W.2d 473(2013). Where the Nebraska Evidence Rules commit the evi-
dentiary question at issue to the discretion of the trial court,
an appellate court reviews the admissibility of evidence for an
abuse of discretion. Id. An abuse of discretion occurs when a
trial court’s decision is based upon reasons that are untenable
or unreasonable or if its action is clearly against justice or con-
science, reason, and evidence. Id.[12-14] Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show
that he or she acted in conformity therewith. It may, however,
be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident. Rule 404(2).
[Rule] 404(2) does not apply to evidence of a defendant’s
other crimes or bad acts if the evidence is inextricably
intertwined with the charged crime. This rule includes
evidence that forms part of the factual setting of the
crime . . . or if the other crimes or bad acts are necessary
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for the prosecution to present a coherent picture of the
charged crime.
State v. Freemont, 284 Neb. 179, 192, 817 N.W.2d 277, 290-91
(2012). Accord, State v. Robinson, 271 Neb. 698, 715 N.W.2d
531 (2006); State v. Wisinski, 268 Neb. 778, 688 N.W.2d
586 (2004).
[W]here evidence of crimes is so blended or connected
with the ones on trial so that proof of one incidentally
involves the other or explains the circumstances, it is
admissible as an integral part of the immediate context of
the crime charged. . . . [W]here the other evidence is so
integrated, it is not extrinsic and therefore not governed
by rule 404(2).
State v. Aguilar, 264 Neb. 899, 909-10, 652 N.W.2d 894,
903 (2002).
(b) Additional Facts
The State moved in limine to be allowed to introduce evi-
dence about Smith’s and Victor’s gang affiliations. The State
alleged that Smith was a member of the 40th Avenue gang,
that Victor testified against 40th Avenue gang members, and
that the gang consequently considered Victor a “snitch.” The
State asserted that this gang-related evidence would explain the
relationship of the parties and would show motive, opportunity,
and intent.
Conversely, Smith moved in limine for an order prohib-
iting the State from introducing evidence of gang affili-
ations and certain encounters involving him, Corey, and
Victor. Smith contended that the encounters were sufficiently
removed from the shooting to require a rule 404 hearing. The
court overruled Smith’s motion in limine with respect to the
encounters, as well as Smith’s motion to exclude evidence of
gang activity.
At trial, the State sought to introduce testimony from Corey
about an encounter with Smith at the house where the October
2008 party took place. Smith objected on relevance and rule
404 grounds. The court overruled Smith’s objection and per-
mitted Corey to testify about the confrontations before the
shooting. The court ultimately concluded that the encounters
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STATE v. SMITH 879
Cite as 286 Neb. 856were evidence that provided a total picture of the charged
crime, which was not subject to rule 404.
Corey then testified that he saw Smith during a party
in October 2008 and that Smith said, “We don’t fuck with
your kind” or “we don’t mess with your kind.” On cross-­
examination, Corey stated that prior to this incident, there
had been no physical altercation between Smith and Victor or
between Smith and Corey.
Corey testified to another encounter with Smith that
occurred in the Legion parking lot in October 2008. While
inside the Legion, Smith stared and glared at Corey. Outside
the Legion, Smith said, “We don’t fuck with y’all kind. They
ain’t tripping off that other stuff. We just don’t fuck with y’all
kind.” Corey interpreted Smith’s remarks to refer to Corey and
Victor’s cooperation with the federal government. In response
to Smith’s remarks, Corey and Victor left the Legion.
(c) Resolution
Smith claims that Corey’s testimony of those encounters
with Smith was subject to rule 404(2) and that a hearing should
have been held according to rule 404(3). He claims the court
overlooked the State’s previous arguments that the evidence
was relevant to show motive, intent, and opportunity, and
because the evidence was offered for those purposes, a hearing
should have been held.
The State claims that Smith did not request a continuing
objection during Corey’s testimony about the encounters and
did not make a specific rule 404 objection to Corey’s testimony
that Smith said “‘[w]e don’t mess with your kind.’” Brief for
appellee at 41. It claims Smith waived the right to assert preju-
dicial error on appeal. It asserts that the confrontations were
intrinsic to the crimes and that without the evidence, the jury
would be led to believe Smith and Foster randomly appeared
and shot at people in the Legion parking lot. And because the
evidence was inextricably intertwined with the crimes charged,
the evidence was not rule 404(2) evidence and no rule 404(3)
hearing was required.
Contrary to the State’s argument, we find that Smith’s objec-
tions to Corey’s testimony were sufficient to preserve this
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issue for our review. But we do agree with the State that the
encounters to which Corey testified were intrinsic evidence not
subject to rule 404.
In State v. Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006),
the defendant argued that the act of burning a pickup a week
after the murder was extrinsic to a murder charge. We stated
that in determining whether conduct is intrinsic, what mat-
ters is whether the evidence is so closely intertwined with the
charged crime that it completes the story or provides a total
picture of that crime.
More recently, in State v. Baker, 280 Neb. 752, 789 N.W.2d
702 (2010), the State presented evidence that the defendant
threatened a child with harm if she reported him. Specifically,
the State’s evidence included testimony that the defendant
threatened the victim with harm if she reported his conduct,
the mother’s testimony that the defendant threatened her and
physically assaulted her if she did not bring the victim to
the bedroom when he directed her to do so, and the mother’s
testimony that the defendant became sexually aroused while
watching the victim administer a massage. The defendant
claimed this evidence was inadmissible under rule 404(2). On
appeal, we considered whether the evidence was intrinsic to the
charged crimes of first degree sexual assault and third degree
sexual assault of a child and concluded the State had a right to
present this evidence as part of the factual setting of the crime.
Bad acts that form the factual setting of the crime in issue or
that form an integral part of the crime charged are not part of
the coverage under rule 404(2). Baker, supra.
In State v. Canbaz, 259 Neb. 583, 611 N.W.2d 395 (2000),
the defendant’s neighbors and coworkers testified concerning
statements the defendant made to them that he wanted to kill
his ex-girlfriend. The defendant argued the statements were
prejudicial evidence of prior bad acts under rule 404(2). Prior
to trial, the State argued that rule 404 was inapplicable because
the statements were relevant to only the murder case and were
not evidence of any other crimes. The trial court concluded that
rule 403 applied and held a pretrial hearing.
In Canbaz, we concluded the testimony was not evidence of
prior unrelated bad acts under rule 404(2). The testimony was
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STATE v. SMITH 881
Cite as 286 Neb. 856relevant evidence that the defendant murdered his ex-girlfriend
intentionally and with premeditation, and we determined that
the trial court erred in concluding that rule 404(2) applied to
the disputed testimony.
Similarly, evidence that Smith threatened Corey and Victor
each time he saw them was part of the factual setting of the
instant crimes and was necessary to present a coherent pic-
ture. Before Corey and Victor entered plea agreements with
the federal government, Smith was friends with them. But
the first time Smith saw Corey and Victor after their release
from prison, in October 2008, Smith told them that he did
not associate with their “kind.” Later, Smith made a similar
remark to Victor at the Legion. These were the only two times
Smith encountered Corey and Victor following their release
from prison. Significantly, Smith threatened them each time.
Within a few weeks, on November 10, Smith acted on that
threat. Evidence of Smith’s previous encounters with Corey
and Victor allowed the State to present a coherent picture of
the eventual shooting. Without this evidence, it would appear
to the jury that Smith, who was a friend of Corey and Victor,
appeared at the Legion parking lot and aided and abetted in the
random shooting of five people.
The evidence of the prior encounters was not used to estab-
lish that Smith had the propensity to shoot Corey and Victor,
but instead, to establish that Smith threatened Corey and Victor
during two separate encounters and finally acted upon those
threats the night of November 10, 2008. Accordingly, the evi-
dence was inextricably intertwined with the shooting and not
subject to rule 404. The district court did not abuse its discre-
tion in admitting this evidence. Smith’s second assignment of
error is without merit.
3. Tamela’s Statement:
“It was D-Wacc”
Smith claims that the district court erred in allowing tes-
timony that Tamela said, “It was D-Wacc,” when the police
encountered her at the scene of the shooting. Smith argues that
this statement was hearsay not covered by the excited utterance
exception and that admitting the statement violated his right to
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confront the witnesses against him. We address each of these
arguments in turn.
(a) Hearsay
(i) Principles of Law
[15,16] Apart from rulings under the residual hearsay excep-
tion, we review for clear error the factual findings underpin-
ning a trial court’s hearsay ruling and review de novo the
court’s ultimate determination to admit evidence over a hear-
say objection. Werner v. County of Platte, 284 Neb. 899, 824
N.W.2d 38 (2012). We review for clear error the trial court’s
factual findings underpinning the excited utterance hearsay
exception, resolving evidentiary conflicts in favor of the suc-
cessful party, who is entitled to every reasonable inference
deducible from the evidence. State v. Pullens, 281 Neb. 828,
800 N.W.2d 202 (2011).
[17,18] Neb. Evid. R. 801(3), Neb. Rev. Stat. § 27-801(3)
(Reissue 2008), provides that “[h]earsay is a statement, other
than one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter
asserted . . . .” Hearsay is not admissible except as provided
by the rules of evidence or by other rules adopted by the stat-
utes of the State of Nebraska or by the discovery rules of this
court. Neb. Evid. R. 802, Neb. Rev. Stat. § 27-802 (Reissue
2008). Accord State v. Alford, 278 Neb. 818, 774 N.W.2d
394 (2009).
[19] A hearsay statement may be admissible if it qualifies as
an excited utterance, which is “[a] statement relating to a star-
tling event or condition made while the declarant was under the
stress of excitement caused by the event or condition.” Neb.
Evid. R. 803(1), Neb. Rev. Stat. § 27-803(1) (Reissue 2008).
For a statement to qualify as an excited utterance, the follow-
ing criteria must be established: (1) There must have been a
startling event, (2) the statement must relate to the event, and
(3) the statement must have been made by the declarant while
under the stress of the event. Pullens, supra. The key require-
ment is spontaneity, which requires a showing the statements
were made without time for conscious reflection. State v.
Hembertt, 269 Neb. 840, 696 N.W.2d 473 (2005).
Nebraska Advance Sheets
STATE v. SMITH 883
Cite as 286 Neb. 856[20,21] The underlying theory of the excited utterance
exception is that circumstances may produce a condition of
excitement which temporarily stills the capacity of reflection
and produces utterances free of conscious fabrication. Pullens,
supra. The true test in spontaneous exclamations is not when
the exclamation was made, but whether under all the circum-
stances of the particular exclamation the speaker may be con-
sidered as speaking under the stress of nervous excitement and
shock produced by the act in issue. Id.
(ii) Additional Facts
At trial, Wiley testified that he encountered Tamela within
1 minute or less of arriving at the scene of the shooting. He
stated that his attention was drawn to Tamela because “she
was very upset, she was hysterical, and she was screaming.”
Upon approaching Tamela, Wiley found her to be “inconsol-
able.” At trial, he was allowed to testify, over Smith’s hearsay
objection, to what Tamela was screaming. He recounted that
she was “screaming: It was D-Wacc, it was D-Wacc, over and
over again.” Later in the trial, the State presented evidence
that Smith was known as D-Wacc. On cross-examination,
Wiley acknowledged that Tamela was uncooperative, though
he explained this uncooperativeness as resulting from her
emotional state. He described his attempts to question Tamela
as follows: “[A]s I was asking her questions, it was kind
of hard to keep her attention . . . because she was just that
upset and that hysterical.” Tamela still provided the shoot-
er’s race, gender, approximate age, and name. According to
Wiley, it would have been obvious to Tamela that he was a
police officer.
Following Wiley’s testimony and outside the presence of
the jury, Smith renewed his objection to the testimony about
Tamela’s statement. His main concerns were that the testimony
violated his right of confrontation and that Tamela’s statement
to Riley may be unreliable. The district court overruled the
objection because it found that the statement was an excited
utterance. It explained the ruling as follows:
As I understand[,] the testimony was that when [Wiley]
approached [Tamela] she was . . . hysterical and screaming
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that D-Wacc did it . . . . Thereafter, while he was trying to
question her, . . . it was difficult for him to obtain infor-
mation from her, although he obtained information from
her thereafter.
But when he first came upon her, she was yelling the
statement, and as such the Court found this is an excited
utterance . . . .
The following morning, the court declined another request by
Smith to reconsider this ruling, again noting that Wiley’s testi-
mony was that he heard Tamela scream the statement “without
asking any questions or without any interrogation.”
(iii) Resolution
Smith contends that Wiley’s testimony as to Tamela’s state-
ment was hearsay. He contends the statement was not an
excited utterance because it was not spontaneous, but was
made to implicate Smith after conscious reflection. He con-
cludes that Tamela had time for reflection because “the record
clearly demonstrates that [she], in fact, made the statement
to Wiley knowing that it was fabricated.” Brief for appellant
at 44.
Tamela’s statement was made out of court and was offered
as evidence that Smith committed the shooting. It was there-
fore offered for its truth. Because it was an out-of-court state-
ment offered for its truth, it was hearsay. See rule 801(3).
Accordingly, it was not admissible except as provided by rule
or statute. See rule 802. The State argues that the statement, “It
was D-Wacc,” was an excited utterance. We agree.
There was sufficient evidence before the district court to
conclude that Tamela’s statement met the requirements for an
excited utterance. First, Wiley testified that Tamela was at the
scene of the shooting, which he described as “an extremely
chaotic scene.” She undoubtedly experienced a startling event
by being present for the shooting. Second, Tamela’s statement
related to the startling event because it identified the shooter.
Third, the statement was made while Tamela was under the
stress of the shooting. Wiley testified that his attention was
drawn to Tamela, out of the entirety of the chaos, within 1 min-
ute of arriving at the scene. He described her as “very upset,”
Nebraska Advance Sheets
STATE v. SMITH 885
Cite as 286 Neb. 856“frantic,” and “hysterical.” As Wiley testified in court, she was
crying inconsolably and could not focus on the questions he
was asking because she was “that upset and that hysterical.”
This evidence supports the conclusion that Tamela made the
statement about Smith’s being the shooter while still under the
stress of the shooting.
The record does not support Smith’s inference that Tamela
had consciously reflected about the statement because she
allegedly knew it was false when she said it. In the portions of
the record cited by Smith, Tamela does not state that she fab-
ricated the statement. Rather, the cited portions of the record
correspond to Tamela’s testimony that she did not actually
see Smith in the act of shooting, but that she “figured it was
him.” Taken alone, this testimony might support a conclusion
that Tamela consciously chose to tell Wiley that Smith was the
shooter, particularly in light of the fact that she had previously
accused him of shooting someone. However, shortly after the
testimony cited by Smith, Tamela explained more fully that she
thought Smith was the shooter because she saw him with a gun
moments before the shooting. The record does not support a
finding that Tamela consciously fabricated her statement that
Smith was the shooter, but instead demonstrates that Tamela
believed Smith was the shooter because of what she observed
moments before the shooting. Per our standard of review, the
State, with whom the district court sided on this matter, is
entitled to every reasonable inference that can be drawn from
the evidence. See State v. Pullens, 281 Neb. 828, 800 N.W.2d
202 (2011). We find that it is a reasonable inference from the
entirety of the evidence surrounding Tamela’s statement that
she did not intentionally fabricate her statement that Smith was
the shooter.
Although the fact that Tamela did not actually see Smith in
the act of shooting is significant, it does not affect whether her
statement was properly admitted as an excited utterance. To the
extent that the evidence reveals that Tamela may not have had
sufficient foundation to conclude that Smith was the shooter,
it relates to credibility. For purposes of our hearsay analysis,
the question is whether Tamela’s statement was made without
time for conscious reflection, not whether she was a credible
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witness to the shooting. The aforementioned evidence supports
the conclusion that Tamela was still under the stress of the
shooting when making her statement.
We do not find clear error in the district court’s conclusion
that Tamela’s statement was made after a startling event, in
relation to the startling event, and while she was under the
stress of the event. We affirm the court’s decision to admit
Wiley’s testimony regarding Tamela’s statement based on the
excited utterance exception to hearsay.
(b) Confrontation Clause
Smith contends admission of Tamela’s statement via Wiley
violated his right to confront the witnesses against him. He
argues that Tamela was not unavailable and that her state-
ment, “It was D-Wacc,” was testimonial under Crawford v.
Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d
177 (2004). The State argues that Wiley’s testimony about
Tamela’s statement did not violate the Confrontation Clause
of the U.S. or Nebraska Constitution because Tamela testified
at trial.
(i) Principles of Law
[22] An appellate court reviews de novo a trial court’s
determination of the protections afforded by the Confrontation
Clause of the Sixth Amendment to the U.S. Constitution and
reviews the underlying factual determinations for clear error.
State v. Watson, 285 Neb. 497, 827 N.W.2d 507 (2013).
“In all criminal prosecutions, the accused shall enjoy the
right . . . to be confronted with the witnesses against him . . . .”
U.S. Const. Amend. VI. The Nebraska Constitution provides,
“In all criminal prosecutions the accused shall have the right
. . . to meet the witnesses against him face to face . . . .” Neb.
Const. art. I, § 11. We have held that the analysis under article
I, § 11, is the same as that under the Sixth Amendment to
the U.S. Constitution. State v. Hembertt, 269 Neb. 840, 696
N.W.2d 473 (2005).
(ii) Resolution
[23] We conclude there was no Confrontation Clause vio-
lation. There is no confrontation violation if the declarant
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Cite as 286 Neb. 856testifies at trial. See, State v. Holliday, 745 N.W.2d 556 (Minn.
2008); People v. Argomaniz-Ramirez, 102 P.3d 1015 (Colo.
2004). In Crawford, 541 U.S. at 59 n.9, the U.S. Supreme
Court stated: “The [Confrontation] Clause does not bar admis-
sion of a statement so long as the declarant is present at trial to
defend or explain it.”
Tamela testified at trial and explained her statement. Smith
cross-examined her at trial about the statement. Admitting
Tamela’s statement, “It was D-Wacc,” did not violate the
Confrontation Clause of the U.S. or Nebraska Constitution.
This assignment of error has no merit.
4. Statement to Law
Enforcement
Smith assigns that the district court erred in denying his
motion to suppress his statement to law enforcement. He
claims admitting the statement violated his rights under the
Fourth and Fifth Amendments.
(a) Principles of Law
[24] In reviewing a trial court’s ruling on a motion to sup-
press based on a claimed violation of the Fourth Amendment,
an appellate court applies a two-part standard of review. State
v. Au, 285 Neb. 797, 829 N.W.2d 695 (2013). Regarding his-
torical facts, an appellate court reviews the trial court’s find-
ings for clear error, but whether those facts trigger or violate
Fourth Amendment protections is a question of law that an
appellate court reviews independently of the trial court’s deter-
mination. Id.[25-27] In reviewing a motion to suppress a confession
based on the claimed involuntariness of the statement, includ-
ing claims that it was procured in violation of the safeguards
established by the U.S. Supreme Court in Miranda v. Arizona,
384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), an
appellate court applies a two-part standard of review. State
v. Bormann, 279 Neb. 320, 777 N.W.2d 829 (2010). With
regard to historical facts, we review the trial court’s findings
for clear error. Id. Whether those facts suffice to meet the
constitutional standards, however, is a question of law, which
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we review independently of the trial court’s determination.
Id. Violations of the Fourth Amendment are subject to harm-
less error analysis. See State v. Newman, 250 Neb. 226, 548
N.W.2d 739 (1996). Violations of Miranda are also subject to
a harmless error analysis. See State v. Andersen, 213 Neb. 695,
331 N.W.2d 507 (1983).
(b) Additional Facts
One of the officers who investigated Victor’s death, Eugene
Watson, worked off duty as a nightclub security guard. He saw
Smith at an afterhours club on November 23, 2008. He spoke
to Smith and asked him to come to the Omaha police station.
Smith agreed.
A uniformed officer took Smith to the station in a police
cruiser, and Smith was placed in a small interrogation room.
Because Smith was intoxicated and sleeping, Watson and
Spencer tried to wake him so he could interact coherently.
Watson testified that while Spencer was attempting to get
biographical information, Smith said “something about . . .
watching TV and also he went to [the] Legion alone.” Smith
had not yet received the Miranda warnings. Once he was given
those warnings, he did not speak to detectives. Smith was sub-
sequently arrested.
Before trial, Smith moved to suppress his statements, claim-
ing that he was detained without a warrant, consent, or prob-
able cause, that his statements were the product of custo-
dial interrogation without a waiver of his Miranda rights,
and that the statements were involuntary. The court overruled
Smith’s motion.
At trial, Spencer testified, over Smith’s objection, to Smith’s
statement that “he was at the . . . Legion by himself.” Spencer
also testified that when Smith was told police wanted to
talk to him about the shooting, he said, “I had nothing to do
with that.”
(c) Resolution
Smith contends that he was taken into custody without
probable cause and that the State has not purged the taint
of the Fourth Amendment violation. Smith claims he was in
Nebraska Advance Sheets
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Cite as 286 Neb. 856custody because he was not free to leave during questioning,
he did not initiate contact with the police, he did not want to
talk, the interview was dominated by the police, and he was
arrested immediately following questioning. He also claims he
was interrogated by police. Smith contends the statement was
involuntary because he was highly intoxicated, he did not have
assistance of counsel, he was not advised that he had the right
to counsel, and he was not advised that he was not required
to make a statement and that any statement he made could be
used against him.
The State contends that because Smith voluntarily accom-
panied the police for questioning, there was no Fourth
Amendment seizure. It also contends there was probable cause
to arrest Smith because several witnesses indicated he was
one of the people responsible for Victor’s death. It contends
the statement was not the result of custodial interrogation
because Smith’s freedom was not limited in a significant way
and he voluntarily accompanied the police to the station for
questioning. It also contends Smith volunteered the statement
that he was at the Legion alone. It argues Smith’s actions and
awareness as he spoke with detectives show the statement that
Smith went to the Legion alone was not involuntary and that
the statement was not rendered involuntary because Smith
was intoxicated.
Alternatively, the State claims any error in admitting Smith’s
statement that he went to the Legion alone was harmless. The
State argues that Smith did not confess to shooting anyone,
several witnesses placed him at the scene, and the statement
did nothing to support the State’s theory.
We find that Smith’s statements were not inculpatory. His
statement that he had nothing to do with the shooting was a
claim of innocence. It did not incriminate him. He also stated
he was at the Legion by himself. Testimony from multiple other
witnesses placed Smith at the Legion. Thus, the admission of
Smith’s statements was not prejudicial to Smith. Assuming
without deciding that the statements should not have been
admitted, their admission was harmless error. The jury’s ver-
dict was surely unattributable to Smith’s statements to police,
and any error in admitting the statements was harmless. See
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State v. Richardson, 285 Neb. 847, 830 N.W.2d 183 (2013).
Smith’s fourth assignment of error has no merit.
5. Motions for Mistrial
Smith alleges the trial court erred in failing to sustain his
motions for mistrial.
(a) Principles of Law
[28-30] Whether to grant a mistrial is within the trial court’s
discretion, and we will not disturb its ruling unless the court
abused its discretion. State v. Watson, 285 Neb. 497, 827
N.W.2d 507 (2013). A party must premise a motion for mis-
trial upon actual prejudice, not the mere possibility of preju-
dice. State v. Dixon, 282 Neb. 274, 802 N.W.2d 866 (2011). A
mistrial is properly granted in a criminal case where an event
occurs during the course of a trial that is of such a nature that
its damaging effect cannot be removed by proper admonition
or instruction to the jury and thus prevents a fair trial. Id.(b) Additional Facts
Smith moved for mistrial four separate times. His first
motion was made when Foster’s lawyer attempted to impeach
Corey. At a sidebar, Smith’s attorney renewed his motion to
sever and, if the motion to sever was not granted, moved for
a mistrial. The motions for severance and mistrial were over-
ruled. Smith moved for a mistrial again during the testimony of
Terrance. The court concluded the evidence would have been
presented at Smith’s separate trial and that a curative instruction
could be provided, and denied the motion. Smith moved for a
mistrial a third time before the cross-examination of Spencer.
Smith claimed Spencer would testify to statements that would
not be admitted against Smith in a separate trial. The motion
was overruled, and the court instructed the jury that the state-
ments were to be used solely for impeachment. Spencer testi-
fied that according to his report, Tameaka described the shooter
as tall and in a kneeling position. Spencer also testified that
Corey had previously said something “passed” between Smith
and Foster. Smith moved for a mistrial a fourth time at the end
of the State’s case on the basis of the court’s failure to sever
the trials. The motion was overruled.
Nebraska Advance Sheets
STATE v. SMITH 891
Cite as 286 Neb. 856(c) Resolution
Smith contends that his motions for mistrial should have
been granted because evidence was presented against him that
would not have been presented against him in a separate trial.
The State notes that several of the motions for mistrial were
made before the challenged evidence was admitted and that
Smith’s motions for mistrial were made on the ground of sever-
ance. It claims Smith has not shown prejudice and the district
court did not err in denying the motions for a mistrial.
Smith bases his motions for mistrial on evidence that he
contends would not be presented if he were tried separately.
We have rejected these arguments in concluding Smith was not
prejudiced by joinder. Smith has not shown he was prejudiced,
he has not shown he should have been granted a mistrial, and
the district court did not err in denying the motions. His fifth
assignment of error has no merit.
6. Post Mortem Photograph
Smith assigns the district court erred in admitting a post
mortem photograph of Victor.
(a) Legal Principles
[31] The admission of photographs of a gruesome nature
rests largely with the discretion of the trial court, which must
determine their relevancy and weigh their probative value
against their prejudicial effect. State v. Freemont, 284 Neb.
179, 817 N.W.2d 277 (2012).
[32] In a homicide prosecution, photographs of a victim may
be received into evidence for the purpose of identification, to
show the condition of the body or the nature and extent of
wounds and injuries to it, and to establish malice or intent. Id.(b) Additional Facts
At trial, the court admitted a post mortem photograph show-
ing the fatal wound to Victor’s neck. Smith made a timely rule
403 objection, which was overruled.
(c) Resolution
Smith argues the district court abused its discretion in
admitting a photograph depicting Victor’s face with the fatal
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wound. He contends that the court admitted other photographs
showing Victor’s injuries and that there was no legitimate
need to introduce a photograph of Victor’s face with the bul-
let wound. He claims the photograph was needlessly cumula-
tive and unfairly prejudicial. The State points out that Smith
challenges an exhibit that does not show Victor’s face, and
argues that the court did not err in admitting the exhibit
Smith challenges.
Smith challenges the admission of exhibit 113, a photograph
which depicts the bullet wound to Victor’s neck without depict-
ing his full face. Exhibit 111 is a photograph that does depict
the bullet wound to Victor’s neck along with his face. Smith
objected to exhibit 113, but not exhibit 111, at trial.
We conclude the court did not err in admitting either
exhibit 111 or exhibit 113. We have upheld admission of a
photograph showing a decomposed body that had been burned
before it was buried. See State v. Galindo, 278 Neb. 599,
774 N.W.2d 190 (2009). Admission of the photographs in the
instant case showing the bullet wound and Victor’s face was
not unfairly prejudicial to Smith. His sixth assignment of error
has no merit.
7. Sufficiency of Evidence
Smith alleges the evidence was insufficient to convict him.
He claims that the State’s evidence was contradictory, such that
to convict him the jury would have to select some evidence to
believe and ignore other evidence.
(a) Legal Principles
[33] In reviewing a sufficiency of the evidence claim,
whether the evidence is direct, circumstantial, or a combina-
tion thereof, the standard is the same: We do not resolve con-
flicts in the evidence, pass on the credibility of witnesses, or
reweigh the evidence; such matters are for the finder of fact.
The relevant question is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime
beyond a reasonable doubt. State v. McClain, 285 Neb. 537,
827 N.W.2d 814 (2013).
Nebraska Advance Sheets
STATE v. SMITH 893
Cite as 286 Neb. 856(b) Resolution
Smith contends that given the contradictory evidence in the
record, in order to convict him, a trier of fact would have to
select certain evidence from the State’s case to believe and
ignore evidence that showed Smith was not involved. The State
claims that the jury weighed, rather than ignored, evidence and
that the jury could have found the essential elements of the
crime beyond a reasonable doubt.
We agree with the State that the jury could determine which
witnesses to believe. Furthermore, the State prosecuted Smith
as an aider and abettor. It presented evidence showing that
Smith went to the Legion with Foster, that Smith found Corey
and Victor in the parking lot, and that upon a movement or
gesture from Smith, Foster fired, killing Victor and wound-
ing Corey and three others. Tamela also testified that Smith
had a gun in his hand just prior to the shooting. Based on this
evidence, a rational trier of fact could have found Smith guilty
beyond a reasonable doubt. Smith’s seventh assignment of
error has no merit.
8. Cumulative Error
Smith argues that the sum of all the errors in his trial
requires reversal, even if any single error alone does not.
(a) Legal Principles
[34] We have recognized the doctrine of cumulative error in
the context of a criminal jury trial, stating that “while one or
more trial errors might not, standing alone, constitute prejudi-
cial error, ‘their cumulative effect was to deprive the defend­
ant of his constitutional right to a public trial by an impartial
jury.’” Hradecky v. State, 264 Neb. 771, 781, 652 N.W.2d
277, 286 (2002) (quoting Wamsley v. State, 171 Neb. 197, 106
N.W.2d 22 (1960)).
(b) Resolution
Smith contends that, taken together, the errors in the case
were not harmless, but demonstrate he did not receive a fair
trial, and that if the case were tried without the errors, there
is a substantial likelihood the jury would have acquitted
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him. The State contends that Smith’s cumulative error argu-
ment lacks merit because none of his other alleged errors
have merit.
We have determined that it was no more than harmless error
to admit Smith’s statements to law enforcement. Otherwise, we
have found no merit to any of Smith’s other assigned errors.
Considering the evidence of Smith’s guilt, we conclude that
admitting Smith’s statements did not deny Smith’s constitu-
tional right to a public trial by an impartial jury. Smith’s eighth
assignment of error has no merit.
9. Speedy Trial
In a pro se supplemental brief, Smith claims a violation of
his statutory and constitutional speedy trial rights.
(a) Legal Principles
[35] Smith has a statutory speedy trial right. Every person
indicted or informed against for any offense shall be brought
to trial within 6 months, as computed under Neb. Rev. Stat.
§ 29-1207 (Cum. Supp. 2012).
[36] Smith also has a constitutional speedy trial right.
Determining whether a defendant’s constitutional right to a
speedy trial has been violated requires a balancing test in
which the courts must approach each case on an ad hoc basis.
State v. Brooks, 285 Neb. 640, 828 N.W.2d 496 (2013). This
balancing test involves four factors: (1) length of delay, (2)
the reason for the delay, (3) the defendant’s assertion of the
right, and (4) prejudice to the defendant. Id. None of these four
factors standing alone is a necessary or sufficient condition to
the finding of a deprivation of the right to speedy trial. State
v. McLeod, 274 Neb. 566, 741 N.W.2d 664 (2007). Rather, the
factors are related and must be considered together with other
circumstances as may be relevant. Id.[37] As a general rule, a trial court’s determination as to
whether charges should be dismissed on speedy trial grounds
is a factual question which will be affirmed on appeal unless
clearly erroneous. Brooks, supra.Nebraska Advance Sheets
STATE v. SMITH 895
Cite as 286 Neb. 856(b) Additional Facts
The information in Smith’s case was filed on January 9,
2009. On January 14, Smith filed a plea in abatement, which
was overruled on December 24. He filed a motion to sever on
May 28, 2010, which was granted on June 16. The court later
reconsolidated the cases. On June 30, Smith waived his speedy
trial rights from June 30 to September 27, and the court con-
tinued the trial from July 12 to September 27. Trial began on
September 27.
(c) Resolution
Smith claims that the records and files before the court do
not show any cause for the delay between the filing of the
plea in abatement on January 14, 2009, and the hearing on
December 2. He claims that there was no just cause for the
delay and that his counsel was ineffective for failing to advise
him of and protect his speedy trial rights.
We conclude that Smith has not shown a violation of his
statutory speedy trial rights. Smith’s statutory speedy trial
period began to run when the information was filed against
him on January 9, 2009. See § 29-1207(2). The State had 6
months, until July 9, to try Smith. See § 29-1207(1). Under
§ 29-1207(4)(a), a plea in abatement tolls the running of the
statutory speedy trial period. Accordingly, the time period
when the plea in abatement was pending, from January 14 to
December 24, is not included. This added 11 months 10 days to
the speedy trial clock. The State then had until June 19, 2010,
to bring Smith to trial.
The speedy trial period was tolled again on May 28,
2010, when Smith filed his pretrial motion to sever. See
§ 29-1207(4)(a). The motion to sever was resolved by the court
on June 16, extending the speedy trial period by 19 days, to
July 8. On June 30, Smith waived his speedy trial rights and
the trial was continued from July 12 to September 27. The trial
began on September 27. Smith was brought to trial within the
time required by statute. His statutory speedy trial rights were
not violated.
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The next question is whether Smith’s constitutional speedy
trial right was violated. Smith has not shown a long delay, an
impermissible reason for that delay, or that he was prejudiced
by a delay. Therefore, we conclude he has not shown a vio-
lation of his constitutional speedy trial rights. Smith’s final
assignment of error has no merit.
[38] In his pro se supplemental brief, Smith argues his
counsel was ineffective, but he does not assign ineffective
assistance of counsel as error. In order to be considered by
an appellate court, an alleged error must be both specifically
assigned and specifically argued in the brief of the party assert-
ing the error. J.P. v. Millard Public Schools, 285 Neb. 890, 830
N.W.2d 453 (2013). Accordingly, we do not address Smith’s
ineffective assistance of counsel argument.
V. CONCLUSION
For the reasons set forth, we affirm Smith’s convictions
and sentences.
Affirmed.
Inbody, Chief Judge, participating on briefs.
Heavican, C.J., not participating.
Connolly, J., concurring.
During two October 2008 incidents, Smith told Corey,
“We don’t fuck with your kind.” The majority concludes
that these incidents were “inextricably intertwined” with the
charged crimes. So, the majority concludes that Neb. Rev. Stat.
§ 27-404(2) (Cum. Supp. 2012) does not apply and that the
district court did not err in admitting these incidents without
a § 27-404(3) hearing. But the majority’s application of the
“inextricably intertwined” exception is overbroad and improp-
erly loosens the exception from its moorings. In my view, these
incidents fall under § 27-404(2) and the court therefore erred
in admitting them without a § 27-404(3) hearing. I find this
error harmless, however, and therefore concur in the major-
ity’s judgment.
Nebraska Advance Sheets
STATE v. SMITH 897
Cite as 286 Neb. 856ANALYSIS
Analytical Framework
As the majority notes, § 27-404(2) states, “[e]vidence of
other crimes, wrongs, or acts is not admissible to prove the
character of a person to show that he or she acted in con­
formity therewith.” Such evidence “may, however, be admis-
sible for other purposes, such as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence
of mistake or accident.” When such evidence is admissible
under § 27-404(2), before the court may admit it, the State
must “prove[] to the court by clear and convincing evidence
that the accused committed the crime, wrong, or act.”1 And
such proof must “first be made outside the presence of
[the] jury.”2
But § 27-404(2) does not apply to evidence which is inextri-
cably intertwined with the charged crime(s):
Section 27-404(2) does not apply to evidence of defend­
ant’s other crimes or bad acts if the evidence is inex-
tricably intertwined with the charged crime. This rule
includes evidence that forms part of the factual setting
of the crime, or evidence that is so blended or connected
to the charged crime that proof of the charged crime
will necessarily require proof of the other crimes or bad
acts, or if the other crimes or bad acts are necessary
for the prosecution to present a coherent picture of the
charged crime.3
We have recognized, however, that if interpreted too liberally,
the inextricably intertwined exception is susceptible to abuse
1
§ 27-404(3).
2
Id.
3
State v. Freemont, 284 Neb. 179, 192, 817 N.W.2d 277, 290-91 (2012).
See, also, State v. Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006); State
v. Wisinski, 268 Neb. 778, 688 N.W.2d 586 (2004).
Nebraska Advance Sheets
898 286 NEBRASKA REPORTS
and might circumvent certain procedural protections or admit
evidence that § 27-404(2) was designed to exclude.4
Recognizing this tension between § 27-404(2) and the “inex-
tricably intertwined” exception, we recently tried to clarify
the boundary between the two. Specifically, in State v. Ash,5
we noted that “[i]t is the close entanglement of the evidence
[between the prior bad act and the charged crime] that creates
the need to present evidence of facts that are inconsequential to
proving the charged crime.” And we agreed with federal courts
that have found evidence inextricably intertwined with the
charged offense “‘when both acts are part of a single criminal
episode, or when the other acts were necessary preliminaries to
the crime charged.’”6
Similarly, in State v. Almasaudi,7 we noted that inextricably
intertwined evidence “is sometimes termed ‘“same transaction
evidence.”’” And we noted that the exception applies when
the acts were inextricably intertwined with the charged
offense and committed as part of a continuing crime to
carry out the same objective, in furtherance of the same
crime spree, to conceal previous crimes, and when the
conduct was necessary to show a coherent picture of the
facts of the crime charged.8
Applying
Framework
the
Facts
to the
Here, the record shows that each incident occurred sometime
in October 2008, weeks before the charged crimes on November
10, 2008. The first incident occurred at an afterhours party,
4
See, State v. Ash, ante p. 681, ___ N.W.2d ___ (2013); Freemont, supra
note 3 (citing U.S. v. Green, 617 F.3d 233 (3d Cir. 2010), cert. denied ___
U.S. ___, 131 S. Ct. 363, 178 L. Ed. 2d 234). See, also, U.S. v. Gorman,
613 F.3d 711 (7th Cir. 2010); U.S. v. Bowie, 232 F.3d 923 (D.C. Cir.
2000)).
5
Ash, supra note 4, ante at 694-95, ___ N.W.2d at ___.
6
Id. at 695, ___ N.W.2d at ___ (quoting 2 Jack B. Weinstein & Margaret
A. Berger, Weinstein’s Federal Evidence § 404.20[2][b] (Joseph M.
McLaughlin ed., 2d ed. 2011) (citing federal cases)).
7
State v. Almasaudi, 282 Neb. 162, 177, 802 N.W.2d 110, 124 (2011).
8
Id.Nebraska Advance Sheets
STATE v. SMITH 899
Cite as 286 Neb. 856during which Smith told Corey, “We don’t fuck with your
kind.” Victor and Corey, feeling uncomfortable, stayed only
10 or 15 minutes and then left. The second incident occurred
in the parking lot outside of the bar. Smith, “Don Don” Swift,
and one other person surrounded Victor. Smith was not armed,
but the other two had guns. “Don Don” got “in Victor’s face,”
apparently because “he was upset about a girl.” Corey tried to
get Victor out of there, and Smith again told Corey, “We don’t
fuck with ya’ll kind.”
The majority concludes that the incidents were inextrica-
bly intertwined with the charged crimes and that therefore,
§ 27-404(2) does not apply. The majority reasons that the
incidents were not used for impermissible propensity purposes,
that they formed the factual setting of the crimes, and that they
were necessary to present a coherent picture of the crimes.
But the record shows otherwise. First, the incidents did
not form the factual setting of the crimes because both inci-
dents occurred weeks before the charged crimes. Second, the
prosecution did not need the incidents to present a coherent
picture of the crimes. Without them, the following was clear
from the record: Victor, Corey, and Smith were in rival gangs;
Victor and Corey snitched on members of Smith’s gang;
snitches were reviled in the community and were in danger;
and many witnesses testified that Smith was at the bar and
that he participated in the shootings. The State needed noth-
ing more to present a coherent picture of the crimes. And the
incidents were not otherwise inextricably intertwined (i.e.,
part of a single criminal episode or in furtherance of the same
crime spree).
Instead, these two incidents were § 27-404(2) evidence.
And had there been a § 27-404(3) hearing at which the State
proved by clear and convincing evidence that the incidents had
occurred, they likely would have been admissible. But because
there was no such hearing, the district court erred in admitting
evidence of these incidents.
Harmless Error
Although the district court erred in admitting the inci-
dents without a § 27-404(3) hearing, I believe that error
Nebraska Advance Sheets
900 286 NEBRASKA REPORTS
was harmless. Evidentiary error is harmless when improper
admission of evidence did not materially influence the jury to
reach a verdict adverse to substantial rights of the defendant.9
Harmless error review looks to the basis on which the trier of
fact actually rested its verdict; the inquiry is not whether in
a trial that occurred without the error a guilty verdict would
surely have been rendered, but, rather, whether the actual
guilty verdict in the questioned trial was surely unattributable
to the error.10
Smith argues that such error was not harmless because
“the State not only relied on [these incidents] (1) to establish
Smith’s motive to kill Victor, but (2) to distinguish Smith from
any other person—40th Avenue gang member or not—against
whom Victor and Corey provided incriminating evidence to
law-enforcement authorities.”11 In other words, the State used
these incidents to differentiate Smith from the rest of the com-
munity, in that although everyone disliked snitches, Smith was
the only one that expressed hostile feelings related to snitching
explicitly directed at the victims.
But these purposes were interrelated because the State used
Smith’s motive as an intermediate inference to prove identity.12
And there was other strong evidence identifying Smith as a
party to the crime. Multiple eyewitnesses put Smith and Foster
at the bar that night. Multiple eyewitnesses testified that Smith
and Foster, before the shootings occurred, had come in the bar,
with their hoodies pulled up, walked through the bar, and left.
Because it was a rival gang’s bar, the most likely explanation
for this conduct was to scope out the bar and identify their
targets. Multiple eyewitnesses then identified Smith and Foster
as shooting and killing Victor, and shooting and injuring Corey
and three other people. Although the district court erred, I
believe the error was harmless.
9
See Freemont, supra note 3.
10
See id.
11
Brief for appellant at 38.
12
See 1 Edward J. Imwinkelried, Uncharged Misconduct Evidence § 3:15
(rev. ed. 1999).
Nebraska Advance Sheets
GRIDIRON MGMT. GROUP v. TRAVELERS INDEMNITY CO. 901
Cite as 286 Neb. 901CONCLUSION
I disagree with the majority’s application of the “inexplica-
bly intertwined” exception to the two October 2008 incidents
which, I believe, fall under § 27-404(2). The court erred in
admitting these incidents without a § 27-404(3) hearing. I
conclude, however, that the error was harmless and therefore
concur in the judgment.
Stephan and Miller-Lerman, JJ., join in this concurrence.
Stephan, J., concurring.
To the extent that both of Smith’s statements to Corey in
October 2008 can reasonably be understood as constituting
threats, as the majority characterizes them, I agree with my
concurring colleagues that they were subject to Neb. Rev. Stat.
§ 27-404(2) (Cum. Supp. 2012), but their admission under the
“inexplicably intertwined” exception was harmless error.
I write separately only to note my view that the first of
the statements, which unlike the second did not involve any
display of weapons, was ambiguous and could also be reason-
ably understood to mean that Smith did not wish to have any
involvement with Corey because he was a “snitch.” So con-
strued, I would not regard that statement as “[e]vidence of other
crimes, wrongs, or acts” within the meaning of § 27-404(2).
But its admission at trial would constitute, at worst, harmless
error. Therefore, I concur in the judgment.
Gridiron Management Group, LLC, appellant, v.
Travelers Indemnity Company, appellee.
___ N.W.2d ___
Filed November 15, 2013. No. S-12-1129.
1. Administrative Law: Judgments: Appeal and Error. A judgment or final order
rendered by a district court in a judicial review pursuant to the Administrative
Procedure Act, Neb. Rev. Stat. §§ 84-901 to 84-920 (Reissue 2008, Cum. Supp.
2012 & Supp. 2013), may be reversed, vacated, or modified by an appellate court
for errors appearing on the record.
2. ____: ____: ____. When reviewing an order of a district court under the
Administrative Procedure Act for errors appearing on the record, the inquiry is
whether the decision conforms to the law, is supported by competent evidence,
and is neither arbitrary, capricious, nor unreasonable.