State v. Foster ( 2013 )

Nebraska Advance Sheets
826 286 NEBRASKA REPORTS
State of Nebraska, appellee, v.
Jeremy D. Foster, appellant.
___ N.W.2d ___
Filed November 15, 2013. No. S-10-1228.
1. Trial: Joinder. There is no constitutional right to a separate trial.
2. Trial: Joinder: Proof: Appeal and Error. The burden is on the party chal-
lenging a joint trial to demonstrate how and in what manner he or she was
prejudiced.
3. Trial: Joinder: Appeal and Error. A trial court’s ruling on a motion for consoli-
dation of prosecutions properly joinable will not be disturbed on appeal absent an
abuse of discretion.
4. 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.
5. 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.
6. 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.
7. ____: ____: ____. A defendant must show that a joint trial caused him or her such
compelling prejudice that he or she was deprived of a fair trial.
8. 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.
9. Trial: Evidence: Joinder. The existence of mutually antagonistic defenses is not
prejudicial per se.
10. Trial: Joinder: Proof. In order to be entitled to severance based on mutually
exclusive defenses, the defendant must show real prejudice, rather than merely
note that each defendant is trying to exculpate himself or herself while inculpat-
ing the other.
11. Criminal Law: Aiding and Abetting: Trial: Evidence. The fact that one
codefend­ nt was defending against the charge of aiding and abetting the other
a
codefendant in committing the underlying crime does not necessarily create
mutually exclusive defenses.
12. Criminal Law: Aiding and Abetting. Aiding and abetting is simply another
basis for holding an individual liable for the underlying crime.
13. ____: ____. Neb. Rev. Stat. § 28-206 (Reissue 2008) provides that a person who
aids or abets may be prosecuted and punished as if he or she were the princi-
pal offender.
14. Trial: Waiver: Appeal and Error. The failure to make a timely objection waives
the right to assert prejudicial error on appeal.
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STATE v. FOSTER 827
Cite as 286 Neb. 82615. Rules of Evidence: Hearsay: Proof. Hearsay 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.
16. Hearsay: Extrajudicial Statements. An extrajudicial statement not offered to
prove the truth of the matter asserted is not hearsay.
17. Constitutional Law: Criminal Law: Trial: Witnesses. In all criminal prosecu-
tions, the accused shall enjoy the right to be confronted with the witnesses against
him or her.
18. Criminal Law: Witnesses: Testimony. Statements to friends, relatives, accom-
plices, and anyone outside the criminal justice system are not testimonial.
19. Criminal Law: Witnesses: Testimony: Intent. A statement that is not intended
for use in the prosecution of a crime and that law enforcement had no role in
obtaining is not testimonial.
20. Trial: Juries. When a case is finally submitted to the jury, jury members must be
kept together in some convenient place, under the charge of an officer, until they
agree upon a verdict or are discharged by the court.
21. Trial: Juries: Waiver. A defendant can waive the right to sequester the jury.
Appeal from the District Court for Douglas County: P eter
C. Bataillon, Judge. Affirmed.
Glenn Shapiro and Michael J. Wilson, of Schaefer Shapiro,
L.L.P., for appellant.
Jon Bruning, Attorney General, and Stacy M. Foust for
appellee.
Wright, Connolly, Stephan, McCormack, and Miller-
Lerman, JJ., and Cassel, Judge.
Wright, J.
I. NATURE OF CASE
Jeremy D. Foster 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, Darrin D. Smith, was charged with the same
crimes, and the two were tried jointly. A 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. Because each
has assigned different errors and makes distinct arguments, we
address the two appeals in separate opinions, addressing errors
in the order assigned by the respective appellant. We affirm
Foster’s convictions and sentences.
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II. FACTS
1. Background
The following facts are relevant to Foster’s appeal: Brothers
Victor Henderson and Corey Henderson belonged to the
“Pleasantview” or “PMC” gang in Omaha, Nebraska. Smith
was a member of the rival “40th Avenue” gang.
Corey and Victor were federally indicted and agreed to
plead guilty and testify for the government in exchange for
more lenient sentencing. When they were released from federal
prison in 2007, they were considered “snitches” within the
gang community.
Following their release, Corey and Victor saw Smith at a
party in October 2008. Smith told Corey: “We don’t fuck with
your kind.” About 2 weeks before the shooting, Corey and
Victor saw Smith again at an American Legion hall in Omaha
(the Legion). The Legion is considered a bar for Corey and
Victor’s gang. Smith made another statement to the effect of
“we don’t mess with your kind.”
On November 9, 2008, Corey, Victor, and several of their
family members went to the Legion. While Corey and Victor
were there, Smith and Foster entered the bar wearing hooded
sweatshirts. Smith and Foster were in the Legion approxi-
mately 10 minutes, and before they left, they looked and nod-
ded toward Corey and Victor.
Around closing time, Victor attempted to break up a fight in
the parking lot of the Legion. Smith and Foster returned, and
Corey and Victor were shot. The evidence was in conflict as to
whether Foster or Smith was the shooter. Officers responded to
the Legion and found a chaotic scene. Victor was fatally shot
in the neck, and four others were wounded.
Within a month, Smith and Foster were arrested. Both were
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.
2. P retrial Motions
On April 9, 2010, over the objection of both defendants, the
district court sustained the State’s motion to consolidate. Later,
the court sustained Smith’s motion to sever, but subsequently
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Cite as 286 Neb. 826reconsolidated the trials. Before trial, both defendants again
moved to sever, arguing that they would be required to “point
the finger” at each other. The State asserted that it planned
to prosecute the defendants based on a theory that they acted
together. The court overruled both motions.
3. Trial Testimony
Neither defendant testified at trial. Both defendants pro-
ceeded mainly by cross-examining witnesses called by the
State. We summarize the relevant trial testimony below.
(a) Robert Wiley
Officer Robert Wiley received a call at 12:44 a.m. on
November 10, 2008. Upon responding to the call, Wiley found
Victor lying in blood with a gunshot wound to his neck.
At trial, Wiley testified that soon after arriving on the
scene, he observed a woman screaming, “It was D-Wacc, it
was D-Wacc.” The court sustained two of Smith’s objections
and instructed the jury to disregard Wiley’s testimony about
what the screaming individual said. Foster did not object to
this testimony.
Later, the State asked Wiley to describe the demeanor of
the person screaming and state what she said. Smith objected
on hearsay and confrontation grounds, but Foster did not. The
State claimed the statement fell under the excited utterance
exception to the hearsay rule. Smith’s objection was overruled,
and Wiley proceeded to testify that the party was screaming,
“It was D-Wacc,” over and over again.
(b) Corey Henderson
Corey testified that he knew Smith as “D-Wacc.” He
explained that he and Smith had grown up together, that
there was a fairly close connection between Victor’s and
Smith’s families, and that Victor had fathered children with
Smith’s cousin. Victor and Smith were on good terms. Over
Smith’s objection, Corey also testified that Smith had been
a member of the 40th Avenue gang from the time Smith was
approximately 13 years old up through the shooting. Corey
explained that in 2003 and 2004, Corey and Victor were fed-
erally indicted. They cooperated with the federal government
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and testified against members of Smith’s gang in exchange for
lighter prison sentences. As a result, Corey and Victor were
labeled as “snitches” and received threats. Following their
release from federal prison, Corey and Victor primarily associ-
ated with their family members and continued to associate with
members of the Swift family.
Despite mainly associating with family, Corey testified
than they saw Smith on several occasions before the shoot-
ings. In October 2008, Corey and Victor saw Smith at a party
where, after Corey acknowledged Smith, Smith stated, “We
don’t fuck with your kind.” At trial, Foster did not object to
Corey’s testimony about Smith’s statement or request a limit-
ing instruction.
Corey testified that he and Victor next saw Smith 2 weeks
before the shootings. Corey and Victor went to the Legion,
where Corey noticed Smith on the dance floor. They stayed
only about 30 minutes. As Corey walked out, he saw that a
group of males had surrounded Victor outside of a car, includ-
ing Smith, “Don Don” Swift, and a boy of about 14, who each
had a gun. “Don Don” was arguing with Victor. At some point,
Corey heard Smith say, “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 understood this to be a comment about Corey and
Victor’s being “snitches.” Foster did not object to this testi-
mony about Smith’s statements outside the Legion or request a
limiting instruction.
On the night of November 9, 2008, Corey and Victor were
at the Legion. While there, Corey saw Smith and Foster
come into the Legion wearing hooded sweatshirts with the
hoods pulled over their heads. Smith wore a black hooded
sweatshirt. Foster wore a gray hooded sweatshirt, was light
skinned, had braided hair, and walked with a limp. 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. After about 10 minutes, Smith and Foster left
the Legion.
Later that evening, Victor attempted to stop a fight in the
parking lot. When Corey noticed that Victor turned his head,
Corey turned his head to see what caught Victor’s attention. He
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Cite as 286 Neb. 826saw that Smith and Foster had returned and were only about 6
or 7 feet away. They had switched hooded sweatshirts. Smith
was now wearing the gray hooded sweatshirt, and Foster was
wearing the black hooded sweatshirt.
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.”
Corey said that when Smith made the gesture, he did not see
Smith with a gun. Corey saw “fire” and heard “a loud boom”
coming from the direction of Foster, consistent with a “bigger
handgun.” Corey began to run between the cars in the parking
lot, but he stopped because he had been shot in the leg.
During cross-examination by Foster, Corey testified that he
picked Smith out of a photographic lineup but could not iden-
tify Foster. Foster later attempted to impeach Corey with his
prior statements to police that he saw Smith hand Foster a gun
and that Smith was wearing a black hooded sweatshirt. When
Foster asked Corey whether he told police that “Don Don” had
brandished a gun at Victor 2 weeks prior to the shooting, Corey
responded, “I can’t recall.”
Smith similarly questioned Corey about the person referred
to as “Don Don” who threatened Victor with a firearm. Smith
also questioned Corey about testifying for the federal govern-
ment and receiving threats from individuals other than Smith.
(c) Shampagne Swift
Shampagne Swift was at the Legion the evening of the shoot-
ing and saw Smith and another individual. She had not seen the
individual with Smith before, but testified that he had a black
hooded sweatshirt, light skin, and braids. When Smith and the
individual with him left the bar, they went past the table where
Corey and Victor were seated. Later, as Shampagne was walk-
ing toward her mother’s house, she heard shots.
(d) Martini Swift
At trial, Martini Swift testified that she saw Smith enter the
Legion, but that she did not see anyone enter the Legion with
Smith. Then, the State impeached Martini with her statement to
police that Smith walked into the Legion with a “light-skinned
boy” wearing braids and a gray hooded sweatshirt.
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(e) Tameaka Smith
Tameaka Smith was in her van in the Legion parking lot
when the gunshots began. She saw someone in a black hooded
sweatshirt shooting a gun from either a crouching position or
a shooter’s 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.
During cross-examination, Foster elicited testimony from
Tameaka that she did not consider Foster to be skinny. On
cross-examination by Smith, Tameaka stated that she did not
remember telling the police that the photograph the police
showed her of Smith did not depict the person she saw. Neither
did she remember if she saw someone next to the shooter.
(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. When the shoot-
ing began, 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 pos-
sible 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, but stated that she did not see him at
the Legion that evening.
(g) Jacqueline Edwards
Jacqueline Edwards testified that Smith was a friend of
Victor’s, but that Smith stopped associating with Victor after
Victor’s release from prison. The night of the shootings, she
saw Smith come into the Legion wearing a black hooded
sweatshirt. He was accompanied by a light-skinned male who
was wearing a gray hooded sweatshirt and had his hair in two
long pigtails. Jacqueline later identified the man accompanying
Smith and wearing the gray hooded sweatshirt as Foster. As
Jacqueline left the Legion on November 10, 2008, she heard
five or six gunshots.
On cross-examination by Foster, Jacqueline testified that she
had previously told the police who she thought had committed
the shooting. The name she gave the police was not Foster’s.
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Cite as 286 Neb. 826(h) Tamela Henderson
Tamela Henderson left the bar with 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. They were wearing the same hooded sweatshirts they
had been wearing in the bar. Smith had a gun in his hand. She
did not see Foster with a gun.
Tamela heard gunfire a few seconds later but did not see the
shooter. She ran to the door of the bar, someone let her in, and
she stayed until the gunshots stopped.
After the shooting, Tamela went to where Victor was lying.
She recalled screaming, “It was D-Wacc,” because Smith was
“standing there with the gun, so I figured that it was him.” She
did not actually see the shooter. She told police that night that
Foster was not the shooter.
On cross-examination by Foster, Tamela said that Smith had
on the same dark-colored hooded sweatshirt as he wore inside
the bar. The other person had on the light-colored hooded
sweatshirt. She did not see the person in the light-colored
sweatshirt with a gun.
During cross-examination by Smith, Tamela was asked about
a statement she made to police in April 2007 which implicated
Smith in a different shooting. She admitted she had not seen
Smith commit the shooting in that incident.
(i) Tequila Bennett
Tequila Bennett was present when Smith and Foster came to
the Legion. Smith wore a dark-colored hooded sweatshirt, and
Foster wore a gray hooded sweatshirt. Foster took his hood off
long enough for Tequila to see that he had braids in his hair.
Later, Tequila was with Tamela when Tamela had to sidestep
Smith and Foster outside the bar. Smith and Foster were wear-
ing the same hooded sweatshirts 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. She did not see Foster fire a gun.
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Smith impeached Tequila with statements she had previ-
ously made to police and statements she had made at a deposi-
tion. Foster did not request a limiting instruction.
(j) Terrance Edwards
Terrance Edwards was at the Legion 1 week before the
shooting when Smith spoke to Victor. Terrance testified with-
out objection that he heard Smith say to Victor, “[W]e don’t
fuck with your kind.” At trial, Foster did not object to this
testimony or request a limiting instruction.
On the night of the shooting, Terrance saw Smith and Foster
come into the bar. Smith wore a black hooded sweatshirt and
Foster wore a gray hooded sweatshirt. Foster walked with a
limp. After leaving the bar, Terrance saw Victor stopping a
fight. Smith and Foster arrived at the scene. Terrance testified
that the two had switched hooded sweatshirts, so Smith wore
the gray hooded sweatshirt, and Foster wore the black hooded
sweatshirt. They were both wearing their hoods up.
Terrance watched as Foster shot 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.
On cross-examination by Smith, Terrance remembered tell-
ing police that the person wearing the black hooded sweat-
shirt had ponytails. Terrance told police he was sure that
the shooter was the person with braids in the black hooded
sweatshirt.
(k) Sandra Denton
Assistant U.S. Attorney Sandra Denton testified concerning
a trial in which Smith testified he was a “40th Avenue Crip”
and had been for 10 years. Over Smith’s objection, Denton
stated that Smith testified that “gang members do carry guns
and they do shoot them.” She testified that Smith said that
“they do fire guns at each other.” Denton testified that Smith
also said: “[I]f you were a snitch, it would be dangerous for
you on the street.” Foster did not object to Denton’s testi-
mony about Smith’s previous statements or request a limit-
ing instruction.
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STATE v. FOSTER 835
Cite as 286 Neb. 826(l) Christopher Spencer
Det. Christopher Spencer conducted approximately 26 inter-
views for the case. He testified that Smith told him that he was
at the Legion by himself on the night of the shooting and that
he “had nothing to do with that.”
Foster attempted to elicit impeachment evidence against
Corey. When Smith cross-examined Spencer, he also attempted
to impeach Corey.
4. Jury Instructions
Following closing arguments, the court instructed the jury.
Outside the presence of the jury, the court asked the parties if
they wanted to sequester the jury. Each of the parties replied
that they did not request sequestration, and each of the defend­
ants personally verified that they did not seek sequestration.
5. 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 deadly
weapon to commit assault. Because the sentences were con-
secutive, Foster’s total sentence was life imprisonment plus 96
to 150 years. He received credit for 734 days served.
Foster appeals his convictions. We have a statutory obliga-
tion to hear all appeals in cases where the defendant is sen-
tenced to life imprisonment. See Neb. Rev. Stat. § 24-1106(1)
(Reissue 2008).
III. ASSIGNMENTS OF ERROR
Foster assigns that the district court erred in (1) failing to
sever his trial from Smith’s and (2) allowing the jury to sepa-
rate without obtaining a voluntary, knowing, and intelligent
waiver of his right to sequester the jury.
IV. ANALYSIS
1. Severance of Trials
Foster claims that the district court abused its discretion by
failing to sever his trial from Smith’s.
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(a) Principles of Law
[1-3] 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 preju-
dice will result from a joint trial. Id. The burden is on the
party challenging 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 discre-
tion. Id.In Nebraska, the joinder of defenses is governed by Neb.
Rev. Stat. § 29-2002 (Reissue 2008), which states, in rel-
evant 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.
[4] 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.
The subsections of § 29-2002 governing joinder are similar
to the federal rule for joinder found in Fed. R. Crim. P. 8(a)
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Cite as 286 Neb. 826and (b). The subsection of § 29-2002 allowing for severance is
also comparable to the federal rule governing severance. See
Fed. R. Crim. P. 14(a). Because of these similarities between
the state and federal rules relating to severance of previously
joined trials, we find federal case law to be instructive in deter-
mining when severance should be granted.
[5] Under federal case law interpreting rule 14(a), the fed-
eral equivalent of § 29-2002(3), a court “should grant a sever-
ance . . . 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 judgment 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 cul-
pability,” when “essential exculpatory evidence that would be
available to a defendant tried alone were unavailable in a joint
trial,” or in other situations. Id.[6,7] Under this rule, a defendant seeking severance must
meet a high burden. 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. 540. Rather, 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.’” 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 preference 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,
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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.
[8] 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)).
(b) Additional Facts
In February 2010, the State filed a motion to consolidate
Smith’s and Foster’s trials. Smith and Foster both objected
to consolidation, but the district court sustained the State’s
motion. On April 9, it consolidated the trials.
Shortly thereafter, Smith moved to sever, and the district
court granted severance. The court severed the trials because it
was concerned that allowing testimony that Foster said Smith
directed him to kill Victor would violate Smith’s right to con-
frontation. Foster could not be compelled to testify.
The State moved for reconsideration, claiming such evi-
dence would not be presented. Upon this motion, the district
court reconsolidated the cases for trial.
Before trial, both Smith and Foster moved to sever. Foster
claimed both defendants would “point the finger” at each
other. Smith claimed the defendants’ defenses were antago-
nistic, conflicting, and mutually exclusive. He argued that as
a consequence, evidence would be presented in a joint trial
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Cite as 286 Neb. 826that would not be admitted in his separate trial. The court
overruled the motions. Before the presentation of evidence,
both defendants again moved to sever and both motions
were overruled.
(c) Resolution
As noted above, under Nebraska law, we must consider
two questions when determining the propriety of a joint trial:
“whether the consolidation is proper because the defendants
could have been joined in the same indictment or information,
and whether there was a right to severance because the defend­
ants 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).
Foster does not argue that his and Smith’s trials were
improperly consolidated. Neither do we find that the initial
consolidation of the trials was error. The charges against both
Smith and Foster relate to their alleged involvement in Victor’s
death. 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.
Foster attacks his joint trial with Smith by arguing that
the second requirement for proper joinder was not satisfied,
because he was prejudiced by the joint trial. In support of his
claim that he was prejudiced by being tried jointly with Smith,
Foster advances three arguments: (1) that his defense was irrec-
oncilable with and mutually exclusive of Smith’s; (2) that the
court admitted hearsay statements made by Smith that would
have been inadmissible if Foster had been tried separately; and
(3) that admitting Smith’s hearsay statements violated his right
to confront the witnesses against him, because Smith did not
testify at trial. We consider each argument in turn.
(i) Mutually Exclusive Defenses
[9] The existence of mutually antagonistic defenses is not
prejudicial per se. See Zafiro v. United States, 506 U.S. 534,
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113 S. Ct. 933, 122 L. Ed. 2d 317 (1993). Therefore, even a
defendant who is arguing that the existence of mutually exclu-
sive or antagonistic defenses resulted in prejudice entitling
him or her to severance must meet the high burden of showing
that “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.” 506 U.S. at 539.
This already “heavy burden” becomes “correspondingly
heavier when, on appeal, [joint defendants] seek to demon-
strate that the district court abused its discretion by declining
to [grant severance].” U.S. v. Daniels, 281 F.3d 168, 177 (5th
Cir. 2002). We find that Foster has not met this heavy burden
on appeal of showing an abuse of discretion by the district
court in not severing his and Smith’s trials due to their conflict-
ing defenses.
In an attempt to show that the district court abused its dis-
cretion, Foster claims that his and Smith’s defenses were mutu-
ally exclusive and that this fact “in and of itself, ‘prevent[ed]
the jury from making a reliable judgment about guilt or inno-
cence.’” Brief for appellant at 25 (quoting Zafiro, supra). He
argues that his and Smith’s defenses were mutually antagonis-
tic because their joint trial was factually parallel to that of the
codefendants in U.S. v. Tootick, 952 F.2d 1078 (9th Cir. 1991),
in which case the Ninth Circuit determined that the existence
of mutually exclusive defenses was so prejudicial as to require
severance. We do not agree that Smith and Foster had mutu-
ally exclusive defenses sufficient to require severance under
Tootick or any other precedent.
In Tootick, supra, a man was stabbed while drinking with
two other individuals. The two men with whom the victim
was drinking when stabbed became codefendants, one of
which was Moses Tootick. At trial, each defendant blamed the
other. Tootick claimed he was highly intoxicated or uncon-
scious during the stabbing. The other defendant, Charles
Frank, testified that he watched Tootick repeatedly stab the
victim. The two codefendants were the only people present
when the victim was attacked, and to acquit one defendant,
the jury had to convict the other defendant. The Ninth Circuit
concluded on appeal that the two codefendants’ defenses were
Nebraska Advance Sheets
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Cite as 286 Neb. 826mutually exclusive. The Ninth Circuit explained its conclu-
sion that the codefendants’ defenses were mutually exclusive
as follows:
Because only Frank and Tootick were present when
[the victim] was attacked, and because there was no
suggestion that [the victim] injured himself, the jury
could not acquit Tootick without disbelieving Frank. Each
defense theory contradicted the other in such a way
that the acquittal of one necessitates the conviction of
the other.
Id. at 1081.
Having found that the codefendants in Tootick had mutually
exclusive defenses, the Ninth Circuit considered whether this
fact entitled them to separate trials.
Ultimately, the Ninth Circuit found that Tootick and Frank
had demonstrated sufficiently manifest prejudice from their
mutually exclusive defenses to entitle them to separate trials.
It rested this conclusion on “the number and types of prejudi-
cial incidents that were not corrected by instructions from the
court.” Id. at 1083. It reversed both defendants’ convictions.
[10] Tootick is one of the few federal cases in which mutu-
ally antagonistic defenses have been found to result in suf-
ficient prejudice to require severance. See Zafiro v. United
States, 506 U.S. 534, 113 S. Ct. 933, 122 L. Ed. 2d 317(1993). On the whole, the federal circuit courts have repeat-
edly found that defenses that are based on “finger pointing”
do not result in prejudice sufficient to mandate severance.
See, e.g., U.S. v. Dinkins, 691 F.3d 358 (4th Cir. 2012), cert.
denied ___ U.S. ___, 133 S. Ct. 1278, 185 L. Ed. 2d 214(2013); Hardy v. Commissioner, Ala. Dept. of Corrections,
684 F.3d 1066 (11th Cir. 2012), cert. denied ___ U.S. ___,
133 S. Ct. 2768, 186 L. Ed. 2d 221 (2013); U.S. v. Plato,
629 F.3d 646 (7th Cir. 2010); U.S. v. Lighty, 616 F.3d 321(4th Cir. 2010); U.S. v. Nichols, 416 F.3d 811 (8th Cir. 2005);
U.S. v. Blankenship, 382 F.3d 1110 (11th Cir. 2004); U.S. v.
Hughes, 310 F.3d 557 (7th Cir. 2002); U.S. v. Johnson, 297
F.3d 845 (9th Cir. 2002); Fox v. Ward, 200 F.3d 1286 (10th
Cir. 2000); U.S. v. Gilliam, 167 F.3d 628 (D.C. Cir. 1999);
U.S. v. Throckmorton, 87 F.3d 1069 (9th Cir. 1996). As the
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Fourth Circuit has noted, “Hostility among defendants, and
even a defendant’s desire to exculpate himself by inculpating
others, do not of themselves qualify as sufficient grounds to
require separate trials.” Dinkins, 691 F.3d at 369. “Blame-
shifting on the part of the defendants ‘is not a sufficient rea-
son for severance.’” Nichols, 416 F.3d at 817 (quoting U.S.
v. Basile, 109 F.3d 1304 (8th Cir. 1997)). Neither does “[t]he
fact that a defendant or his attorney is ‘a de facto prosecutor
who will shift blame from himself to [co-defendants] justif[y]
severance.” Blankenship, 382 F.3d at 1126 (quoting U.S. v.
Andreas, 23 F. Supp. 2d 835 (N.D. Ill. 1998)). Rather, in
order to be entitled to severance based on mutually exclusive
defenses, “the defendant must show real prejudice, rather than
merely note that each defendant is trying to exculpate himself
while inculpating the other.” Fox, 200 F.3d at 1293.
We are not presented with a factual situation comparable to
that in U.S. v. Tootick, 952 F.2d 1078 (9th Cir. 1991), such that
we must conclude based on that case that Smith’s and Foster’s
defenses were so mutually exclusive so as to entitle them to
severance. The situation in the instant case is distinguishable
because the jury was presented with a scenario where it could
acquit one defendant based on his defense of innocence with-
out simultaneously rejecting the defense of the other.
In Tootick, each defendant asserted his innocence and
accused the other. Because no persons besides the two
codefend­ nts and the victim were present at the time of the
a
stabbing, one of the defendants must have committed the stab-
bing. Thus, if the jury believed one defendant’s defense that he
was innocent, such belief necessarily led to the conclusion that
the other defendant’s defense was false and that he stabbed
the victim. Once the jury believed one defendant’s defense, it
was not required to find the other defendant guilty; it was pre-
cluded from believing both defendants’ claims of innocence,
because one of them had to have stabbed the victim.
The same cannot be said of the current case, because the
details of the shooting did not dictate that Smith or Foster were
the only possible shooters. Instead, the jury could believe both
Smith’s and Foster’s defenses that they did not commit the
shooting and find that yet a third individual was the actor. In
Nebraska Advance Sheets
STATE v. FOSTER 843
Cite as 286 Neb. 826short, unlike in Tootick, where the outcomes were limited to
two, there were multiple outcomes in this case.
We first note that there was evidence implicating Foster as
the shooter. At least two witnesses testified they saw Foster
approach and shoot Victor. Corey saw Smith and Foster in
the parking lot 6 to 7 feet away. At that time, Foster had on
the black hooded sweatshirt and Smith wore the gray. Corey
saw a gesture from Smith or that his hand was “going up.”
About the same time, Corey saw “fire” from Foster’s hand and
heard a loud boom. Terrance testified he saw Smith and Foster
approach Corey and Victor. Smith and Foster had switched
sweatshirts, and Foster wore the black hooded sweatshirt. He
saw Foster with his hand out, and “fire” came from his hand
when Terrance heard gunshots.
There was conflicting evidence that Smith committed the
shooting. Specifically, Tequila claimed Smith was the shooter.
Therefore, based on the testimony of either Corey and Terrance
or Tequila, the jury could have convicted one defendant and
acquitted the other. But these were not the sole possible out-
comes of this case, as was the case in Tootick, supra.
There was also evidence to support the State’s claim that
Foster shot Victor and that Smith aided and abetted Foster in
the commission of the shootings. The State offered evidence
that both defendants participated in the crime. It elicited testi-
mony that Foster initially wore a gray hooded sweatshirt, but
that he had switched sweatshirts with Smith by the time of
the shooting so that he was wearing the black sweatshirt. At
least one witness testified that the shooter was wearing black
and was skinny. This evidence identified Foster as the shooter.
Significantly, however, there was also evidence that Smith
handed Foster the gun just before the shooting.
[11-13] Under the State’s theory of prosecution, the jury
could evaluate the evidence as to each defendant. The fact that
one codefendant was defending against the charge of aiding
and abetting the other codefendant in committing the under-
lying crime does not necessarily create mutually exclusive
defenses. Aiding and abetting is simply another basis for hold-
ing an individual liable for the underlying crime. See State v.
Kitt, 284 Neb. 611, 823 N.W.2d 175 (2012). “By its terms,
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844 286 NEBRASKA REPORTS
[Neb. Rev. Stat.] § 28-206 [(Reissue 2008)] provides that a
person who aids or abets may be prosecuted and punished as
if he or she were the principal offender.” Kitt, 284 Neb. at 634,
823 N.W.2d at 192. No particular acts are necessary, nor is it
necessary that the defendant take physical part in the commis-
sion of the crime or that there was an express agreement to
commit the crime. Id.
Smith was charged with first degree murder, but prosecuted
on an aiding and abetting theory. As such, the jury could find
him guilty without determining that he was the shooter. Indeed,
the State offered evidence of each defendant’s individual role
in the shooting. This evidence supported the conclusion that
Smith handed the gun to Foster, who then shot the victims.
Based on this evidence, the jury could have found both Smith
and Foster guilty of the respective crimes with which they
were charged.
There was also evidence adduced at trial that would support
the opposite conclusion—that neither defendant was present at
the time of the shooting. Smith and Foster were not the only
persons present at the crime. And at trial, they suggested some-
one else could be responsible for the shooting, including “Don
Don” or a person named “Views.”
Based on the evidence at trial, the jury could conclude that
Foster committed the shootings alone, that Smith commit-
ted the shootings alone, that Smith and Foster committed the
shootings together, or that neither Foster nor Smith committed
the shootings. It could believe Foster’s defense that he was not
the shooter without being compelled to find that Smith was the
shooter. Likewise, the jury could believe Smith’s defense that
he was not the shooter without necessarily having to find that
Foster was the shooter. Thus, Smith and Foster did not have
mutually exclusive defenses as defined in U.S. v. Tootick, 952
F.2d 1078 (9th Cir. 1991).
Neither were Smith’s and Foster’s defenses sufficiently
antagonistic to merit severance under the more recent case law
interpreting Zafiro v. United States, 506 U.S. 534, 113 S. Ct.
933, 122 L. Ed. 2d 317 (1993). Recall that under Zafiro, only
two kinds of real prejudice entitle a defendant to severance.
The joint trial must either “compromise a specific trial right”
Nebraska Advance Sheets
STATE v. FOSTER 845
Cite as 286 Neb. 826or “prevent the jury from making a reliable judgment about
guilt or innocence.” 506 U.S. at 539.
Foster alleges that his and Smith’s joint trial was an example
of a situation in which antagonistic defenses prevented a reli-
able jury verdict because “his trial became a contest between
codefendants.” Brief for appellant at 35. Specifically, he argues
that the joint trial reduced the State’s burden of proof by pit-
ting Smith and Foster against each other. As examples of how
this occurred, Foster points out the following facts: (1) Each
defendant claimed the other was the shooter in opening state-
ments; (2) Smith attempted to impeach Tequila and Tamela,
both of whom provided testimony that implicated Smith and
not Foster as the shooter; (3) both defendants used the testi-
mony of Spencer to confirm testimony helpful to his case and
impeach witnesses detrimental to his case; (4) Smith called a
witness who saw a man with braids running from the scene;
(5) both defendants “returned to their primary strategy of pros-
ecuting each [other]” in closing arguments, id. at 31; and (6)
the State exploited the contest between Smith and Foster in its
rebuttal argument.
These facts do not, however, point out any aspect of Smith’s
and Foster’s defenses other than that they constituted “finger
pointing.” As previously noted, “finger pointing” alone does
not create mutually exclusive defenses sufficient to require
separate trials. See, e.g., U.S. v. Dinkins, 691 F.3d 358 (4th
Cir. 2012), cert. denied ___ U.S. ___, 133 S. Ct. 1278, 185
L. Ed. 2d 214 (2013); Hardy v. Commissioner, Ala. Dept. of
Corrections, 684 F.3d 1066 (11th Cir. 2012), cert. denied ___
U.S. ___, 133 S. Ct. 2768, 186 L. Ed. 2d 221 (2013); U.S. v.
Plato, 629 F.3d 646 (7th Cir. 2010); U.S. v. Lighty, 616 F.3d
321 (4th Cir. 2010); U.S. v. Nichols, 416 F.3d 811 (8th Cir.
2005); U.S. v. Blankenship, 382 F.3d 1110 (11th Cir. 2004);
U.S. v. Hughes, 310 F.3d 557 (7th Cir. 2002); U.S. v. Johnson,
297 F.3d 845 (9th Cir. 2002); Fox v. Ward, 200 F.3d 1286 (10th
Cir. 2000); U.S. v. Gilliam, 167 F.3d 628 (D.C. Cir. 1999); U.S.
v. Throckmorton, 87 F.3d 1069 (9th Cir. 1996).
Furthermore, this federal case law is consistent with Nebraska
case law, which contains a similar principle. This court has
held that “[t]he mere claim that defenses of codefendants are
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846 286 NEBRASKA REPORTS
antagonistic is insufficient reason to grant separate trials where
the charges against all the defendants result from the same
series of acts and would be proved by similar evidence.” State
v. Pelton, 197 Neb. 412, 419, 249 N.W.2d 484, 488 (1977),
abrogated on other grounds, State v. Morris, 251 Neb. 23, 554
N.W.2d 627 (1996) (citing State v. Rice, 188 Neb. 728, 199
N.W.2d 480 (1972). Smith and Foster were both being tried
for their involvement in the same shooting that occurred on
November 10, 2008. Therefore, the mere claim of antagonis-
tic defenses is not a sufficient reason for separate trials under
either Nebraska or federal case law.
Aside from failing to establish the likelihood of an unreli-
able verdict, the facts identified by Foster also fail to dem-
onstrate that the State’s burden was reduced by Smith’s and
Foster’s conflicting defenses during the joint trial. Despite the
fact that Smith and Foster both attempted to prove their own
innocence by implicating each other, the State still adduced
sufficient evidence for the jury to find Foster guilty of directly
shooting Victor and Smith guilty for aiding and abetting Foster
in the shooting. The evidence outlined above in our discussion
of mutually exclusive defenses was more than sufficient to sup-
port guilty verdicts against both defendants.
Foster has failed to show that the State’s burden was
decreased or that the jury’s verdicts were somehow unreli-
able due to the joint trial. And in his argument on mutually
exclusive defenses, Foster does not allege that the joint trial
violated any of his specific trial rights. Thus, he has failed to
establish real prejudice resulting from his and Smith’s defenses
as required by Zafiro v. United States, 506 U.S. 534, 113 S. Ct.
933, 122 L. Ed. 2d 317 (1993).
Foster’s first argument does not persuade us that he was
prejudiced by the joint trial or that the court abused its discre-
tion in denying severance.
(ii) Smith’s Statements as
Inadmissible Hearsay
In his next argument, Foster contends the district court
admitted statements made by Smith that would have been inad-
missible hearsay had Foster been tried separately. He claims
Nebraska Advance Sheets
STATE v. FOSTER 847
Cite as 286 Neb. 826the court did not instruct the jury to consider these statements
only as evidence of Smith’s guilt.
a. Additional Facts
The first statement at issue was made by Smith at the party
in October 2008. Corey testified that at the party, Corey saw
Smith for the first time since Corey had been released from
federal prison. After Corey acknowledged Smith, Smith said,
“We don’t fuck with your kind.” Because of Smith’s presence,
Corey and Victor left the party after about 10 to 15 minutes.
Foster did not object to Corey’s testimony about Smith’s state-
ment or request a limiting instruction.
Smith made the second statement at issue 2 weeks before
the shootings. Corey testified that he walked out of the Legion
to find Victor standing outside their car surrounded by a group
of men including Smith, several of whom had guns. Smith told
Corey, “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 tes-
tified that he understood Smith to be commenting that he and
Victor were “snitches.” Terrance, who was also present, testi-
fied that he heard Smith say to Victor, “[W]e don’t fuck with
your kind.” Foster did not object to any of this testimony or
request a limiting instruction.
Smith made the final statements at issue during his trial
testimony in a prior and separate proceeding. At the trial in the
instant case, an assistant U.S. Attorney, Denton, testified that
she prosecuted a case where Smith “testified that he was a 40th
Avenue Crip and had been so for ten years.” She also said that
Smith made the following statements during his testimony in
the prior proceeding: (1) that gang members carry and shoot
guns; (2) that gang members fire guns at each other; (3) that
it was a negative thing to be a “snitch”; and (4) that if you
were a “snitch,” it would be dangerous for you on the street.
Foster did not object to Denton’s testimony or request a limit-
ing instruction.
b. Resolution
[14] For the purpose of clarification, we note that Foster
does not assign that the district court erred in admitting
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Smith’s statements because they constituted hearsay in the
context of the joint trial. Foster did not object when Corey,
Terrance, and Denton testified at trial to Smith’s statements.
Neither did he request limiting instructions regarding their
testimony. The failure to make a timely objection waives the
right to assert prejudicial error on appeal. State v. Almasaudi,
282 Neb. 162, 802 N.W.2d 110 (2011). Because Foster did
not raise a hearsay objection or request a limiting instruction
regarding Smith’s statements, he waived any argument that the
statements were hearsay and that the court erred in admitting
Smith’s statements in the joint trial.
Consistent with this waiver, Foster does not argue that the
admission of Smith’s statements in the joint trial was trial
error. Rather, Foster identifies the admission of the statements
as proof that he was prejudiced by the joint trial. Foster argues
that Smith’s prior statements would not have been admitted if
he were tried separately and that the court therefore abused its
discretion in not severing the trials.
[15] The question before this court thus is whether the state-
ments would have been admissible if Foster had been tried
separately from Smith. Foster claims that they would not have
been admissible in a separate trial because they would have
been hearsay. “Hearsay 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 . . . .” Neb.
Evid. R. 801(3), Neb. Rev. Stat. § 27-801(3) (Reissue 2008).
Hearsay statements are inadmissible under Neb. Evid. R. 802,
Neb. Rev. Stat. § 27-802 (Reissue 2008). We do not agree
with Foster, but find that Smith’s statements would have been
admissible against Foster in a separate trial.
i. Smith’s Statements to
Corey and Victor
[16] Smith’s statements to Corey and Victor would not
have been inadmissible in a separate trial under the hearsay
rule because they were not offered for the truth of the matter
asserted. An extrajudicial statement not offered to prove the
truth of the matter asserted is not hearsay. State v. Hansen,
Nebraska Advance Sheets
STATE v. FOSTER 849
Cite as 286 Neb. 826252 Neb. 489, 562 N.W.2d 840 (1997). Smith’s statements
to Corey and Victor would have been offered for their truth
if they had been used to prove that Smith literally did not
“fuck” with Corey and Victor’s “kind.” That was not the case.
Rather, in the joint trial, the statements were offered to prove
something other than their truth—Smith’s then-existing state of
mind—and were therefore not excluded by the hearsay rule for
the reason that they were not hearsay. If the State had offered
Smith’s statements for the same purpose in a separate trial, the
statements would not have been offered for the truth of the
matter asserted and thus would not have been hearsay.
Other courts have also admitted out-of-court statements
which showed the existing state of mind of the declarant.
State v. Davis, 62 Ohio St. 3d 326, 581 N.E.2d 1362 (1991),
involved the prosecution of a person employed to commit
murder for hire. The court held the statement of the alleged
employer of the defendant that he was going to “get even” with
the victim, whom the employer believed had set him up for an
arrest, was admissible to show the then-existing state of mind
of the employer. Id. at 343, 581 N.E.2d at 1377. In People
v Paintman, 92 Mich. App. 412, 285 N.W.2d 206 (1979),
reversed on other grounds 412 Mich. 518, 315 N.W.2d 418(1982), the codefendant made threats against one of the homi-
cide victims. The court held the codefendant’s state of mind
was relevant to his intent in killing the victims and therefore to
the defendant’s guilt as an aider and abettor.
In conclusion, given the purposes for which the State admit-
ted Smith’s statements to Corey and Victor, the statements did
not constitute hearsay in the joint trial and would not have been
hearsay in a separate trial. Smith’s statements could have been
used in a separate trial of Foster to show Smith’s then-existing
state of mind or to demonstrate that Smith and Foster did not
randomly appear at the Legion and shoot five people, thereby
completing the story that Smith aided and abetted Foster in the
shootings. Because the statements would not have been hearsay
when offered for such a purpose, they would not have been
inadmissible in a separate trial.
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ii. Smith’s Prior
Trial Testimony
Foster claims Denton’s testimony regarding Smith’s state-
ments made in a prior trial would have been inadmissible in
a separate trial. We agree that this testimony would have been
inadmissible in a separate trial, but do not find that the admis-
sion of these statements showed that Foster was unfairly preju-
diced by the joint trial.
Smith’s testimony that he was a gang member, that gang
members shoot guns at each other, and that it was dangerous
on the street to be a “snitch” was offered for its truth and was
hearsay with respect to Foster. As hearsay, this evidence would
not have been admissible in a separate trial.
But the admission of these statements about gangs was not
so unfairly prejudicial that the court abused its discretion in
not severing the trials. We do not find manifest prejudice in
the admission of Smith’s prior trial testimony for two reasons.
First, Smith’s testimony from a previous trial did not men-
tion or implicate Foster. Indeed, other witnesses testified to
Foster’s presence at the Legion and his involvement in the
shooting. Other witnesses also provided testimony showing
that Corey and Victor were “snitches” and that they had been
threatened. Second, it is common knowledge that gang mem-
bers have guns, that gang members use guns, and that it was
dangerous to be a “snitch.” For these reasons, the testimony
of Smith’s statements in a previous proceeding was not so
manifestly prejudicial as to require that the defendants be
tried separately.
(iii) Confrontation Clause
In support of his first assignment that the district court
erred in not severing the trials, Foster argues that the joint
trial resulted in prejudice because the admission of Smith’s
statements in the joint trial violated Foster’s rights under the
Confrontation Clause. He argues as follows: “Here, the district
court’s decision to force the defendants into a joint trial preju-
diced Foster by compromising his constitutional right to cross-
examine Smith concerning the hearsay statements introduced
by the State.” Brief for appellant at 38. As a joint defendant,
Smith did not testify during the joint trial.
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Cite as 286 Neb. 826a. Principles of Law
[17] “In all criminal prosecutions, the accused shall enjoy
the right . . . to be confronted with the witnesses against him
. . . .” U.S. Const. amend. VI. 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 deter-
minations for clear error. State v. Watson, 285 Neb. 497, 827
N.W.2d 507 (2013).
In Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354,
158 L. Ed. 2d 177 (2004), the U.S. Supreme Court determined
that the Sixth Amendment prohibited the admission of testi-
monial statements against an accused unless the person who
made the statements was unavailable and the accused had a
prior opportunity for cross-examination. Michael Crawford
was accused of stabbing a man who allegedly attempted to
rape his wife. Under police interrogation, Crawford’s wife
made a statement indicating the victim did not have a weapon
in his hand. Crawford’s wife did not testify because of marital
privilege, but her statement was presented to the jury. The jury
convicted Crawford of assault. Crawford had claimed self-
defense at trial.
On appeal, the U.S. Supreme Court determined the Sixth
Amendment barred admission of statements that were tes-
timonial, absent unavailability of the witness and a prior
opportunity for cross-examination. The Court did not give an
exhaustive definition of a testimonial statement, but statements
given as prior testimony at a preliminary hearing, testimony
given before a grand jury, testimony in a former trial, and
statements from police interrogations were clearly testimonial.
The circumstances in which the statement was made were
important in determining if the statement was testimonial. “An
accuser who makes a formal statement to government officers
bears testimony in a sense that a person who makes a casual
remark to an acquaintance does not.” Crawford, 541 U.S.
at 51. Applying these propositions to the facts in Crawford,
the Court concluded that the statement of Crawford’s wife
was testimonial because she made the statement while under
police interrogation.
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[18] Lower courts have generally determined that state-
ments to friends, relatives, accomplices, and anyone outside
the criminal justice system are not testimonial. See Ralph
Ruebner & Timothy Scahill, Crawford v. Washington, the
Confrontation Clause, and Hearsay: A New Paradigm for
Illinois Evidence Law, 36 Loy. U. Chi. L.J. 703 (2005). For
example, in Billings v. State, 293 Ga. 99, 745 S.E.2d 583(2013), the Georgia Supreme Court determined that statements
a codefendant made to his girlfriend were not testimonial. The
codefendant made the statements more than 2 weeks before
being arrested. The statements were not the product of law
enforcement interrogation during an investigation intended to
produce evidence for prosecution.
We have employed a similar analysis to determine when a
statement is testimonial. See State v. Vaught, 268 Neb. 316,
682 N.W.2d 284 (2004). In Vaught, we noted that the U.S.
Supreme Court provided three possible definitions of a testi-
monial statement: (1) materials, such as affidavits, where the
defendant could not cross-examine and the declarant would
reasonably expect the statement to be used for prosecution;
(2) extrajudicial statements in formalized testimonial materi-
als such as affidavits, depositions, prior testimony, or confes-
sions; and (3) statements made under circumstances leading an
objective witness to reasonably believe the statement would be
available for use at a trial.
b. Resolution
i. Smith’s Statements to
Corey and Victor
[19] A statement that is not intended for use in the pros-
ecution of a crime and that law enforcement had no role in
obtaining is not testimonial. See id. Smith did not anticipate
that his statements at the October 2008 party and at the Legion
2 weeks before the shooting would be used in a criminal
prosecution, and the federal government had nothing to do
with the statements. Accordingly, these statements were not
testimonial. Because these statements were not testimonial, the
Confrontation Clause would not prevent the statements from
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Cite as 286 Neb. 826being admitted in either a separate trial of Foster or a joint trial
of Smith and Foster.
ii. Smith’s Prior
Trial Testimony
Smith’s statements made in a prior trial as related by Denton
were testimonial and, therefore, subject to the Confrontation
Clause. The term testimonial “applies at a minimum to prior
testimony . . . at a former trial.” Crawford v. Washington, 541
U.S. 36, 68, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). Denton
testified to statements Smith made in a former trial, and the
State was involved in producing the statements for prosecution.
As such, the statements were testimonial.
Given that Smith’s statements in a prior proceeding were
testimonial, it was a violation of the Confrontation Clause to
admit these statements unless Foster had a prior opportunity to
cross-examine Smith. See id. Foster did not have an opportu-
nity to cross-examine Smith about the statements. Therefore,
admitting the testimonial statements in a separate trial of Foster
would implicate the Confrontation Clause.
We conclude that although the statements implicated Foster’s
rights under the Confrontation Clause, their admission was not
so prejudicial as to result in an abuse of discretion by the court
in not severing the trials. To justify severance, a defendant
must show compelling prejudice to the conduct of his or her
defense resulting in fundamental unfairness. U.S. v. Acosta,
807 F. Supp. 2d 1154 (N.D. Ga. 2011). Smith’s general state-
ment that gang members have guns and use them was not spe-
cifically directed at Foster and was a fact that would have been
known by the jury as a matter of common knowledge. To the
extent Smith’s prior trial testimony was specific to individuals
in the instant case, we note that other witnesses testified that
Smith was a member of the 40th Avenue gang, that Corey and
Victor were “snitches,” and that Corey and Victor had been
threatened. For these reasons, we do not find that the admission
of Smith’s prior trial testimony was so prejudicial as to result
in an abuse of discretion by the district court in not severing
the trials.
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(d) Conclusion
Foster has raised three arguments that the court abused its
discretion in not severing the trials: (1) that his defense was
mutually exclusive to that of his codefendant, Smith; (2) that
evidence was admitted in the joint trial that could not be admit-
ted against him in a separate trial; and (3) that evidence was
presented in the joint trial that violated his right to confronta-
tion. For the aforementioned reasons, we conclude that Foster’s
arguments are without merit.
2. Jury Sequestration
Foster alleges the district court erred in allowing the jury to
separate after the case was submitted without first obtaining his
intelligent waiver of his right to sequester the jury.
(a) Principles of Law
[20,21] Neb. Rev. Stat. § 29-2022 (Reissue 2008) states, in
part: “When a case is finally submitted to the jury, [jury mem-
bers] must be kept together in some convenient place, under
the charge of an officer, until they agree upon a verdict or are
discharged by the court.” We have long held that a defend­
ant can waive the right to sequester the jury. See Sedlacek
v. State, 147 Neb. 834, 25 N.W.2d 533 (1946). In State v.
Robbins, 205 Neb. 226, 232, 287 N.W.2d 55, 58 (1980), over-
ruled, State v. Collins, 281 Neb. 927, 799 N.W.2d 693 (2011),
we established a rule regarding waiver of the statutory right
to sequester:
In the absence of express agreement or consent by the
defendant, a failure to comply with [§ 29-2022] by per-
mitting the jurors to separate after submission of the case
is erroneous; creates a rebuttable presumption of preju-
dice; and places the burden upon the prosecution to show
that no injury resulted.
In Collins, supra, we overruled Robbins’ holding that a
defendant’s express agreement or consent is required to waive
the right under § 29-2022 to sequester the jury. However, our
ruling in Collins was prospective only. Foster was tried before
Collins was decided, and the case at bar is governed by the rule
from Robbins.
Nebraska Advance Sheets
STATE v. FOSTER 855
Cite as 286 Neb. 826(b) Additional Facts
After the jury began its deliberations, the following colloquy
occurred:
[The court]: With regard to sequestration of the
jury, is there any — do you want the jury sequestered,
[prosecutor]?
[Prosecutor]: No, Your Honor. Just by Nebraska statute
and case law, it’s a right that each defendant has and they
have to formally waive it for it not to [be] an error.
THE COURT: [Foster’s counsel]?
[Foster’s counsel]: We do not seek sequestration of the
jury, Your Honor.
THE COURT: [Smith’s counsel]?
[Smith’s counsel]: Judge, I spoke to . . . Smith about
this and he does not wish to have the jury sequestered.
Is that correct, . . . Smith?
DEFENDANT SMITH: Uh-huh.
THE COURT REPORTER: Is that a yes?
[Smith’s counsel]: Yes.
DEFENDANT SMITH: Yes.
THE COURT: All right. And that’s correct, . . . Foster?
DEFENDANT FOSTER: Yes.
THE COURT: All right. As such, then the jury will not
be sequestered.
(c) Resolution
Foster argues that the district court erred by failing to
obtain an intelligent waiver of his right to sequester the jury
before allowing the jury to separate. He contends that given
our finding in Robbins, supra, that § 29-2022 protects more
than a mere procedural right, a defendant’s waiver of the right
to sequester must be voluntary, knowing, and intelligent. He
claims formal warnings are required. Basically, Foster alleges
that because the district court did nothing to ensure his waiver
was voluntary, knowing, and intelligent, it was clearly errone-
ous to accept the waiver.
The State argues that the district court specifically asked
Foster whether he did not seek sequestration and that he replied
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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.