State v. Brown , 310 Neb. 318 ( 2021 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    11/05/2021 08:08 AM CDT
    - 318 -
    Nebraska Supreme Court Advance Sheets
    310 Nebraska Reports
    STATE v. BROWN
    Cite as 
    310 Neb. 318
    State of Nebraska, appellee and cross-appellant,
    v. Rolander L. Brown, appellant
    and cross-appellee.
    ___ N.W.2d ___
    Filed October 22, 2021.   No. S-21-112.
    1. Motions for New Trial: Appeal and Error. The standard of review
    for a trial court’s denial of a motion for new trial after an evidentiary
    hearing is whether the trial court abused its discretion in denying
    the motion.
    2. Judgments: Words and Phrases. An abuse of discretion occurs when a
    trial court’s decision is based upon reasons that are untenable or unrea-
    sonable, or when its action is clearly against justice, conscience, reason,
    or evidence.
    3. Criminal Law: Motions for New Trial: Evidence: Proof. 
    Neb. Rev. Stat. § 29-2101
    (5) (Reissue 2016) imposes on defendants a two-prong
    burden of proof: First, a criminal defendant must show that the evidence
    at issue has been newly discovered since trial, meaning that the evidence
    could not, with reasonable diligence, have been discovered and produced
    at trial; second, the defendant also must show that the evidence at issue
    is so substantial that with it, a different verdict would probably have
    been reached at trial.
    4. Trial: Evidence: Words and Phrases. Evidence is newly discovered if
    it existed at the time of trial but has since been uncovered.
    5. Motions for New Trial: Evidence. When alleged newly discovered
    evidence is found to lack credibility, it cannot be said that it would have
    produced a substantial difference in the result had it been offered and
    admitted at trial.
    6. Witnesses: Appeal and Error. Appellate courts do not pass on the cred-
    ibility of witnesses.
    7. ____: ____. Witness credibility is a matter for the finder of fact and is
    not to be reassessed on appellate review.
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    Nebraska Supreme Court Advance Sheets
    310 Nebraska Reports
    STATE v. BROWN
    Cite as 
    310 Neb. 318
    8. Appeal and Error. An appellate court is not obligated to engage in an
    analysis that is not necessary to adjudicate the case and controversy
    before it.
    Appeal from the District Court for Douglas County: James
    T. Gleason, Judge. Affirmed.
    Thomas C. Riley, Douglas County Public Defender, for
    appellant.
    Douglas J. Peterson, Attorney General, and Melissa R.
    Vincent for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Freudenberg, J.
    INTRODUCTION
    After convictions of second degree murder, use of a firearm
    to commit a felony, and possession of a firearm by a prohibited
    person with sentences totaling 100 to 140 years’ imprisonment
    were upheld on direct appeal, the defendant filed a motion for
    new trial based on newly discovered evidence. After an eviden-
    tiary hearing, the district court denied this motion for new trial.
    The defendant now appeals.
    BACKGROUND
    Following a jury trial, Rolander L. Brown was convicted of
    second degree murder, use of a firearm to commit a felony, and
    possession of a firearm by a prohibited person. Brown was sen-
    tenced to a total of 100 to 140 years’ imprisonment. Brown’s
    convictions arose from the shooting of Carlos Alonzo on May
    28, 2016. On direct appeal, this court affirmed Brown’s convic-
    tions and sentences. 1 Now Brown appeals the district court’s
    overruling of his motion for new trial.
    1
    State v. Brown, 
    302 Neb. 53
    , 
    921 N.W.2d 804
     (2019).
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    Nebraska Supreme Court Advance Sheets
    310 Nebraska Reports
    STATE v. BROWN
    Cite as 
    310 Neb. 318
    Evidence at Trial
    A full recitation of the facts of this case can be found in our
    opinion regarding Brown’s direct appeal, and we highlight only
    those facts most relevant to the current appeal. In the early
    morning hours of May 28, 2016, Alonzo was found dead in the
    front yard of the residence of Doloma Curtis. Both Alonzo and
    Brown were romantically involved with Curtis at the time.
    Surveillance video from a nearby convenience store showed
    a sedan, which appeared to be missing the hubcap on its front
    passenger-side tire, back into a parking space near the build-
    ing at 2:21 a.m. A male exited the car at 2:22 a.m. and walked
    toward Curtis’ residence, then ran back from that direction a
    few minutes later and drove out of the parking lot. Shortly
    after the male is seen walking toward Curtis’ front door, at
    2:23 a.m., the front door of the residence opened. At 2:23 a.m.,
    the male runs out of Curtis’ yard and back to his vehicle. At
    2:24 a.m., the door to Curtis’ residence is opened and some-
    one exits.
    At approximately 2:24 a.m., Omaha’s “ShotSpotter” loca-
    tion system detected a single gunshot in the vicinity of Curtis’
    home. Law enforcement arrived at Curtis’ residence at 2:27 a.m.
    Upon arrival, officers found Alonzo lying on his back on the
    sidewalk with a single gunshot wound to the head. Evidence
    indicated that Brown had access to and drove a sedan that did
    not have a hubcap on its front passenger-side tire.
    During the investigation, officers determined that Brown’s
    phone number was the last number that called the cell phone
    found in Curtis’ bedroom. Officers obtained cell phone records
    from the cell phone provider for Brown’s phone number. These
    records were sent to the FBI and used to track the movement
    of that cell phone on the night of the homicide. These locations
    indicated that Brown’s cell phone was near the location of the
    homicide at approximately the time the shooting occurred.
    Parris Stamps, a friend of Brown, testified at trial that
    Brown arrived at the house he lived in with James Nelson in
    the early morning hours of May 28, 2016. Stamps testified
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    Nebraska Supreme Court Advance Sheets
    310 Nebraska Reports
    STATE v. BROWN
    Cite as 
    310 Neb. 318
    Brown told him and Nelson that he had just come from Curtis’
    house, that he had been in an altercation with Alonzo, and that
    he “had to put [Alonzo] down.” Stamps testified that Brown
    then pulled out a black Smith & Wesson .40-caliber handgun
    and removed the clip, which was missing one bullet. Brown’s
    cell phone records corroborated some elements of Stamps’ tes-
    timony, because the records showed that Brown called Nelson
    at 2:25 and 2:26 a.m. and the cell site location information
    showed that Brown was in the area of Nelson’s residence at
    approximately 2:34 a.m.
    Brown’s Motion for New Trial
    On October 6, 2020, Brown filed a motion for new trial
    based on newly discovered evidence pursuant to 
    Neb. Rev. Stat. § 29-2101
    (5) (Reissue 2016). The State filed a motion
    to dismiss the motion for new trial without further hearing.
    Without explicitly ruling on the motion, the district court con-
    ducted a hearing as contemplated by 
    Neb. Rev. Stat. § 29-2102
    (Reissue 2016). Under § 29-2102(2), the court shall grant a
    hearing on the motion and determine the issues and make
    findings of fact and conclusions of law if the motion for new
    trial and supporting documents set forth facts which, if true,
    would materially affect the substantial rights of the defendant.
    If, on the other hand, the motion for new trial and supporting
    documents fail to set forth sufficient facts, under § 29-2102(2),
    “the court may, on its own motion, dismiss the motion without
    a hearing.”
    The motion alleged and the evidence at the hearing estab-
    lished that Curtis had been endorsed by the State as a witness
    to be called at trial and had been interviewed by both law
    enforcement and counsel for the defense. In each instance, she
    relayed a similar story that she was in the bathroom and heard
    Alonzo go outside to investigate some noise heard outside the
    residence. She then heard a gunshot, went out the front door,
    and observed Alonzo on the ground suffering from a gunshot
    wound to the head. She then called the 911 emergency dis-
    patch service.
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    310 Nebraska Reports
    STATE v. BROWN
    Cite as 
    310 Neb. 318
    The motion further alleged, and the evidence at the hearing
    further established, that Curtis was arrested for accessory to
    murder and later signed an agreement to participate in a prof-
    fer interview, but when a proffer agreement was made where
    Curtis would agree to testify truthfully for the State at Brown’s
    trial and in return her charges would be reduced to a Class I
    misdemeanor, Curtis rejected the agreement. Brown’s trial was
    set to commence on July 10, 2017, and Curtis failed to appear
    pursuant to her subpoena. Brown’s trial commenced on July
    12, and Curtis was apprehended in Pottawattamie County,
    Iowa, on July 19. The jury returned Brown’s guilty verdicts on
    July 25, and Curtis never testified at Brown’s trial.
    Curtis entered a guilty plea to accessory to a felony and
    was sentenced to 3 to 5 years’ imprisonment. After her release,
    in the early summer of 2020, Curtis contacted the Douglas
    County public defender’s office indicating she had information
    regarding the homicide of Alonzo that had not been previ-
    ously disclosed.
    Curtis executed a sworn affidavit, attached as an exhibit
    to the motion, in which Curtis stated that on the night of the
    homicide, after hearing the shot, she exited her residence and
    observed her brother, LeRoy Long, standing next to Alonzo’s
    body, and when she asked what happened, Long replied, “‘Fuck
    that Nigger.’” Curtis stated that after she reentered her house
    and came back outside, she saw Brown standing in her yard,
    and when she asked Brown for help, he responded, “‘Baby I
    can’t,’” and ran away.
    Curtis was the only one called to testify at the hearing.
    She testified consistently with what she stated in the affida-
    vit. Curtis testified that she was in the process of a divorce
    in May 2016 and had at that time been romantically involved
    with Alonzo for a little over a year and with Brown for a few
    months. She testified that Alonzo was not aware she was see-
    ing Brown, but that Brown knew of Alonzo. Curtis testified
    that on the night of Alonzo’s death, she was in the bathroom
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    Nebraska Supreme Court Advance Sheets
    310 Nebraska Reports
    STATE v. BROWN
    Cite as 
    310 Neb. 318
    and Alonzo was upstairs when she heard her dogs barking. She
    heard Alonzo run downstairs and answer the door.
    She testified that when she got done in the bathroom, she
    went out the front door to sit on the porch and saw Alonzo
    lying on the ground in blood. Curtis testified that she saw her
    brother, Long, standing in the front yard by the gate with a
    handgun. She testified that she asked Long what happened
    and that Long replied, “‘Fuck that nigga.’” She testified that
    she reached into Alonzo’s pocket to get his cell phone to call
    911 and did not see where Long went. Curtis testified that
    after she got the cell phone out of Alonzo’s pocket, she turned
    around and saw Brown standing near the driveway. She testi-
    fied that she screamed at him for help and that Brown looked
    at her, shook his head, told her he could not get involved, and
    ran away.
    Curtis testified that she had told law enforcement she did not
    know who shot Alonzo, because she was afraid for Long and
    she had faith in the system that Brown would not be convicted.
    She testified that she was arrested for accessory to homicide on
    July 26, 2016, before Brown was arrested, and eventually went
    to prison from February 2017 until September 2018. She testi-
    fied that between her arrest and her sentencing, the prosecutor
    offered to allow her to plead to a misdemeanor if she was will-
    ing to testify in Brown’s trial. She testified that she never told
    the prosecutor that she saw Long or Brown at the scene. She
    testified that she was subpoenaed to appear at trial, but did not
    appear, and that she was arrested as a result.
    According to Curtis, after she was released in September
    2018, she spoke with Long about getting the situation “figured
    out,” and she testified that he “was just sitting there like — like
    he didn’t hear me, like I wasn’t speaking to him.” She testified
    that she also attempted to go to the police and tell them what
    really happened, but that the detective she was supposed to talk
    to never contacted her. Instead, Curtis prepared a handwritten
    affidavit, dated March 9, 2020, that she delivered to the public
    defender’s office.
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    Nebraska Supreme Court Advance Sheets
    310 Nebraska Reports
    STATE v. BROWN
    Cite as 
    310 Neb. 318
    District Court’s Order
    Denying Motion
    The district court denied Brown’s motion for new trial.
    The court first agreed with Brown that the alleged newly
    discovered evidence was material, because it placed Long
    at the scene of the crime during the relevant timeframe and
    implied that Long, rather than Brown, was responsible for
    Alonzo’s murder. The court further considered whether Curtis’
    testimony was evidence which Brown could not have dis-
    covered and produced at trial with the exercise of reasonable
    diligence. The court noted that the record reflected that Curtis
    was interviewed by multiple entities prior to Brown’s trial, but
    never told anyone that she saw Long or Brown on the night
    of Alonzo’s murder. Based on this, the fact that Curtis did
    not testify in Brown’s trial, and the fact that her account was
    consistent throughout the course of the police investigation,
    the court found that Brown could not have, with reasonable
    diligence, discovered and produced the alleged newly discov-
    ered evidence at trial, nor did the record indicate that defense
    counsel was aware of this evidence and made a strategic deci-
    sion to withhold it.
    However, the court found that Curtis’ testimony was not
    credible, and after noting all the evidence introduced by the
    State against Brown at trial, the court believed that even if
    this alleged newly discovered evidence was placed in context
    with the trial evidence, it probably would not have changed
    the results of Brown’s original trial. The court noted that the
    “ShotSpotter” location system, Brown’s cell phone records,
    the surveillance video, and the testimony of Brown’s friend
    Stamps demonstrated the strength of the State’s case. The court
    supported its finding that Curtis’ testimony was not credible by
    illustrating that in the several times she was interviewed prior
    to Brown’s trial, she intentionally withheld material informa-
    tion; during the evidentiary hearing on the motion for new
    trial, Curtis admitted to lying to the police; and her testimony
    reflected that she is biased toward Brown because she was
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    Nebraska Supreme Court Advance Sheets
    310 Nebraska Reports
    STATE v. BROWN
    Cite as 
    310 Neb. 318
    dating Brown at the time of Alonzo’s death, had made it clear
    that she did not want to testify against him, and had stated she
    loved Brown before trial and still loves him.
    So, while the court was satisfied that the alleged newly dis-
    covered evidence could not have been presented by Brown’s
    counsel at the time of trial, the court found that the evidence
    lacked the requisite degree of credibility and competency to
    warrant a new trial. In light of its finding that Curtis was not
    credible, the court was not satisfied that the evidence was of
    such a substantial nature that had it been received at Brown’s
    trial, it would have changed the result.
    Brown appeals the district court’s denial of his motion for
    new trial. The State cross-appeals.
    ASSIGNMENTS OF ERROR
    Brown assigns that the trial court abused its discretion by
    denying his motion for new trial based on newly discovered
    evidence.
    The State also filed a cross-appeal, assigning that the district
    court erred in (1) denying the State’s motion to dismiss on the
    ground that Curtis’ affidavit did not identify any newly discov-
    ered evidence and (2) finding that Curtis’ testimony was newly
    discovered based on the evidence presented at the hearing.
    STANDARD OF REVIEW
    [1,2] The standard of review for a trial court’s denial of a
    motion for new trial after an evidentiary hearing is whether
    the trial court abused its discretion in denying the motion. 2
    An abuse of discretion occurs when a trial court’s decision
    is based upon reasons that are untenable or unreasonable, or
    when its action is clearly against justice, conscience, reason,
    or evidence. 3
    2
    State v. Bartel, 
    308 Neb. 169
    , 
    953 N.W.2d 224
     (2021).
    3
    
    Id.
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    Nebraska Supreme Court Advance Sheets
    310 Nebraska Reports
    STATE v. BROWN
    Cite as 
    310 Neb. 318
    ANALYSIS
    Section 29-2101 sets out the seven grounds on which a
    motion for new trial may be based. At issue in this appeal is
    § 29-2101(5). Under § 29-2101,
    [a] new trial, after a verdict of conviction, may be
    granted, on the application of the defendant, for any of
    the following grounds affecting materially his or her
    substantial rights: . . . (5) newly discovered evidence
    material for the defendant which he or she could not with
    reasonable diligence have discovered and produced at the
    trial . . . .
    [3] In our opinions interpreting § 29-2101(5), we have found
    it to impose on defendants a two-prong burden of proof: First,
    a criminal defendant must show that the evidence at issue has
    been newly discovered since trial, meaning that the evidence
    could not, with reasonable diligence, have been discovered and
    produced at trial. 4 Second, the defendant also must show that
    the evidence at issue is so substantial that with it, a different
    verdict would probably have been reached at trial. 5
    [4] With regard to the first prong, we have said that whereas
    an object is new at the moment that it begins to exist, it is
    newly discovered once it is revealed or found out to have
    previously been in existence. 6 Evidence is newly discovered
    if it existed at the time of trial but has since been uncovered. 7
    Because the evidence must have existed at trial for it to be
    uncovered after the trial, evidence newly created after trial
    does not satisfy § 29-2101(5). 8 In any but a very extraordinary
    case in which an utter failure of justice will unequivocally
    result, a verdict on the evidence at the trial will not be set
    4
    Id.
    5
    Id.
    6
    Id.
    7
    See id.
    8
    See id.
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    STATE v. BROWN
    Cite as 
    310 Neb. 318
    aside and a new trial granted on the basis of evidence of facts
    occurring subsequent to such trial. 9
    [5] With regard to the second prong, we have explained that
    “materiality” refers to newly discovered evidence that is so
    potent that by strengthening evidence already offered, a new
    trial would probably result in a different verdict. 10 However,
    the newly discovered evidence must be competent and credi-
    ble. 11 When alleged newly discovered evidence is found to
    lack credibility, it cannot be said that it would have produced
    a substantial difference in the result had it been offered and
    admitted at trial. 12
    The district court found that the version of events described
    by Curtis at the motion for new trial hearing could not have
    been discovered with reasonable diligence, given the consist­
    ency of Curtis’ statements during police interviews and in
    conversations with the public defender that she did not see
    Brown the day Alonzo was murdered and did not know who
    had shot him. The district court found that Curtis’ testimony
    at the hearing on the motion for new trial, if credible, was
    material, because it placed Long at the scene of the crime such
    that it implies Long, rather than Brown, was responsible for
    Alonzo’s murder.
    But the court ultimately found that the newly discovered
    ­testimony would not have produced a substantial difference in
    the result had it been offered and admitted at trial, because it
    was not credible. The court found that Curtis’ testimony as to
    this new version of events lacked the requisite degree of cred-
    ibility and competency necessary to warrant a new trial.
    9
    
    Id.
    10
    State v. McCormick, 
    246 Neb. 271
    , 
    518 N.W.2d 133
     (1994), abrogated on
    other grounds, State v. Thomas, 
    262 Neb. 985
    , 
    637 N.W.2d 632
     (2002).
    11
    See, State v. Costello, 
    199 Neb. 43
    , 
    256 N.W.2d 97
     (1977); State v. Seger,
    
    191 Neb. 760
    , 
    217 N.W.2d 828
     (1974).
    12
    See State v. Rosales, 
    3 Neb. App. 26
    , 
    521 N.W.2d 385
     (1994).
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    Nebraska Supreme Court Advance Sheets
    310 Nebraska Reports
    STATE v. BROWN
    Cite as 
    310 Neb. 318
    We cannot say this was erroneous. The district court took
    into account, among other things, Curtis’ bias toward Brown,
    Stamps’ testimony that Brown had said he “had to put [Alonzo]
    down,” and the surveillance video. We note that the video
    shows the door to Curtis’ residence opened shortly after a male
    exited a vehicle with a missing hubcap on the front passenger-
    side tire and walked toward Curtis’ residence. A couple of
    minutes after the door opened at Curtis’ residence, a male ran
    back to the vehicle from the direction of Curtis’ residence and
    drove away. Only after the vehicle drove away did the door
    to Curtis’ residence open for a second time and an individual
    walked out, presumably Curtis discovering Alonzo’s body in
    the front yard.
    [6,7] Appellate courts do not pass on the credibility of wit-
    nesses. 13 Witness credibility is a matter for the finder of fact
    and is not to be reassessed on appellate review. 14 The district
    court did not abuse its discretion in denying Brown’s motion
    for new trial on the ground that Curtis’ new eyewitness account
    lacked credibility. We accordingly affirm the district court’s
    order denying Brown’s motion for new trial.
    [8] Given our disposition, we do not address the State’s
    cross-appeal. An appellate court is not obligated to engage
    in an analysis that is not necessary to adjudicate the case and
    controversy before it. 15
    CONCLUSION
    For the foregoing reasons, we affirm the district court’s
    order denying Brown’s motion for new trial.
    Affirmed.
    13
    See State v. Figures, 
    308 Neb. 801
    , 
    957 N.W.2d 161
     (2021).
    14
    See, State v. Wheeler, 
    308 Neb. 708
    , 
    956 N.W.2d 708
     (2021); State v.
    Faust, 
    269 Neb. 749
    , 
    696 N.W.2d 420
     (2005).
    15
    Preserve the Sandhills v. Cherry County, ante p. 184, ___ N.W.2d ___
    (2021).