McCORMACK, J.
A jury found Stephen M. Pullens guilty of killing his mother, Matsolonia Myers (Matsolonia), by throwing her over a balcony. Pullens alleges that the trial court erred by allowing hearsay evidence of a prior attempt by Pullens to throw Matsolonia off a balcony, admitting into evidence 10 e-mails without proper authentication, and providing a jury instruction on voluntary flight when the evidence was insufficient to support that issue. Pullens also alleges that he was denied effective assistance of counsel at trial, that he was denied his right to counsel at his sentencing hearing after he demanded to proceed pro se, and that the trial court abused its discretion in sentencing him. We affirm.
Matsolonia died in the early evening hours of December 13, 2004, from injuries sustained after falling four stories off the balcony of her apartment in Omaha, Nebraska. It is undisputed that Pullens was the only witness. He had been staying with Matsolonia for approximately 1 week prior to the incident. It had been 4 years since their last visit, which ended in some
Pullens testified that during his visit, he noticed Matsolonia was acting withdrawn and depressed. He described in detail for the jury aspects of Matsolonia's life that might have contributed to her depression, including an alleged gambling problem. Pullens testified that on the night of December 13, 2004, Matsolonia was acting especially odd. Suddenly, she accused Pullens of wanting to hurt her. She then said, "`Well, okay, fine,'" took off her glasses, set them on the table, and inexplicably walked out to the balcony.
Out of concern for Matsolonia's well-being, Pullens followed her. Matsolonia was leaning over the railing, which was about chest high. Pullens testified that when he approached Matsolonia, she unexpectedly stepped on his foot and leaned into his body so as to hoist herself up to a seated position on the railing. She then pushed Pullens away and let herself fall backward.
Pullens testified that he tried to grab onto the lapels of Matsolonia's fleece pullover jacket, but that she slipped through. He then very briefly tried to hold her by the neck, but he was unable to keep her from falling. According to Pullens, Matsolonia never yelled or screamed as she fell. He testified that she "didn't say a word, like she expected it."
Pullens explained that before going downstairs to where Matsolonia lay on the ground, he may have disturbed some items in Matsolonia's apartment while "running around" looking for his shoes and a key to get back inside. Also, when he was sitting on the sofa putting on his shoes, he found part of Matsolonia's necklace in the sleeve of his shirt and left it on the sofa. He called the 911 emergency dispatch service and was near Matsolonia when paramedics arrived.
The State presented a different version of what occurred the night of December 13, 2004. The pathologist who examined Matsolonia's body gave the opinion that Matsolonia had been strangled and rendered unconscious before being thrown over the balcony. This was based on observations of hemorrhaging in Matsolonia's trachea and larynx. Matsolonia also had an abrasion injury on her neck and chin that matched the zipper of the high-necked jacket lapels of the pullover she was wearing that night. This abrasion, the pathologist explained, could only be caused by placing direct pressure to the zipper against the skin—such as in the act of strangulation. The pathologist explained that the abrasion injury and the injuries to Matsolonia's trachea and larynx could not have been caused by the fall and that the injuries could not have been caused by an attempt to hold onto Matsolonia by her jacket lapels. The pathologist did not specifically rebut Pullens' assertion that he had grabbed Matsolonia by the neck in order to keep her from falling.
The State also presented evidence that a struggle had ensued in Matsolonia's apartment before she fell. In the living room area where the balcony was located, the officers discovered that the glass coffee table top was askew and partially off its base. A piece of a necklace was found under a pillow on the couch, the other pieces of which were found on Matsolonia's body. Matsolonia's glasses were lying on the floor directly in front of the sliding glass doors that lead to the balcony. The contents of her purse had been dumped on her bed.
Much of the trial focused on the relationship between Pullens and Matsolonia.
Pullens explained at trial that the last time he had visited Matsolonia in 2000, he had confronted her about her gambling issues. Pullens stated that he told Matsolonia that if she were going to throw her life away, she might as well "just jump over the balcony." Pullens explained that Matsolonia used that statement "as an excuse to make a big deal out of it." He denied ever yelling or having any physical altercation with her. Pullens explained that Matsolonia was a "very strong woman" and that if he "would have even touched her at any point she would have had the police there ... immediately." He noted that they had grown closer recently and that he did not think much of the incident.
Prior to this testimony, defense counsel had sought to exclude the State's witness to Matsolonia's alleged excited utterance, in which she reported that Pullens had threatened to kill her during the visit in 2000. The court overruled defense counsel's objections, which were based on hearsay and prior bad acts. Defense counsel did not take issue with the adequacy of the State's notice on these issues. The trial court found that the hearsay fell under the residual hearsay exception, because it was an excited utterance, and it found that, although it was a prior bad act, the 2000 incident was admissible for the proper purposes of intent, identity, modus operandi, and absence of mistake or accident.
Matsolonia's ex-husband, Lawrence Kenneth Myers (Kenneth), testified that one morning during Pullens' 2000 visit, he came home to find Matsolonia extremely upset. Kenneth testified that, while choked with emotion and hardly coherent, Matsolonia explained that Pullens had lifted her up onto the balcony and had threatened to throw her over. He had eventually dropped her to the floor and left. The State adduced evidence that Matsolonia obtained a protection order against Pullens soon after the incident.
The State also sought to show Pullens' voluntary flight from the police. When the police and rescue personnel arrived on December 13, 2004, Pullens had refused to give a detailed statement because he said he was drunk and did not "`want to say anything wrong.'" He was taken directly to the police station for blood and DNA sampling, but he was not placed under arrest at that time. Instead, Officer Ken Kanger agreed to transport Pullens from the police station to a motel. Kanger told Pullens that he would be back early the next morning in order to discuss the facts surrounding Matsolonia's death. When Kanger returned at approximately 10:45 a.m., Pullens had checked out and was gone.
Pullens testified that he knew he was a suspect and had no intention of speaking to Kanger until he found a lawyer. He purchased a car and slept in it until leaving town 3 days later. Pullens stated that during the 3-day period he was in town, he tried, unsuccessfully, to obtain a lawyer and locate his sister. Pullens claimed he had also attempted to call and send e-mails to Kanger because he wanted to get his passport and other belongings from Matsolonia's apartment. He had been living in Switzerland on a short-term assignment
Kanger had no record of Pullens' alleged attempts to contact him while in Omaha. Kanger testified that he did not hear from Pullens until receiving an e-mail from California on December 21, 2004. In the 7-page e-mail, Pullens apologized for not getting back to Kanger sooner. This was the beginning of an e-mail correspondence between Kanger and Pullens that lasted more than a year. Pullens testified that he sent approximately 47 e-mails to Kanger during this time. Most of the e-mails were sent from Switzerland, where Pullens returned in January 2005, as soon as he was able to obtain a replacement passport. According to evidence submitted by the State, Pullens procured the passport fraudulently after two attempts in which he lied about how the passport had been lost.
Ten e-mails sent from Pullens to Kanger, consisting of 56 pages in total, were entered into evidence by the State. Through the e-mails, the State sought to demonstrate Pullens' conscious flight from the Omaha police, as well as inconsistencies between the multitude of stories recounted by Pullens describing the night of December 13, 2004. In one e-mail, Pullens stated that a stranger had killed Matsolonia and threatened to kill Pullens if he told anyone. In another, Pullens admitted it was he who killed Matsolonia. The e-mails also provided numerous details concerning Matsolonia and Pullens' relationship. The court overruled defense counsel's objection that the State had failed to lay sufficient foundation to show that the e-mails were authored by Pullens. The State presented expert testimony, described in more detail in our analysis section below, which verified Pullens' usage of the e-mail accounts and the personal facts described in the e-mails.
In one of his e-mails written from Switzerland, Pullens explained: "I am ... aware that you don[']t have a Prima Facia [sic] case or enough to extridite [sic] me to the U.S. from Switzerland or ANY EU country. I am aware that their [sic] is a difference between Switzerland and the EU countries in this matter." In the e-mail, Pullens described Matsolonia as abusive, controlling, and manipulative. He wrote that she had once previously lied about his threatening to throw her over a balcony—simply to deflect criticism of her gambling. Pullens indicated in his e-mails that Matsolonia may have committed suicide. He wrote: "[I]s it not a little too neat to have someone bogus-ly [sic] say that I threatened [Matsolonia] and then have her die in the Exact manner she said she was threatened?"
In later e-mails, Pullens wrote that he suspected the Omaha police had a warrant for his arrest. In an e-mail dated September 3, 2005, Pullens wrote, "I am so tired of running from you and I just want all of this to end." It is in this e-mail that he confessed to throwing Matsolonia off the balcony. At trial, Pullens explained that this e-mail was meant to be read as "scornfully ironic."
In an e-mail dated September 19, 2005, Pullens writes, "I am coming back and know that you are going to arrest me." It appears that by this time, the foreign consulate had confiscated Pullens' passport. Pullens eventually returned to Omaha, where he was arrested.
Pullens was charged with second degree murder. At trial, the jury was instructed, over Pullens' objection, that it could consider "voluntary flight of a person immediately
After the verdict, Pullens became dissatisfied with his privately retained counsel. The facts pertaining to the sentencing hearings will be discussed in further detail below. In summary, Pullens requested that the court appoint him a public defender or that he be granted a continuance to find new, privately retained counsel. The court refused both requests, and Pullens elected to represent himself pro se, with counsel present as standby. There is no record of the court's conducting a specific colloquy with Pullens to determine that his decision to represent himself was made knowingly and intelligently, nor were there explicit findings to that effect. The court sentenced Pullens to a term of imprisonment from 80 years to life. He was appointed new counsel for this appeal.
Pullens alleges that the trial court erred (1) in allowing Kenneth to testify that in November 2000, Matsolonia told him that she and Pullens had a confrontation and that he tried to throw her off the balcony; (2) in allowing into evidence e-mails without proper authentication as required under Neb. Evid. R. 901, Neb.Rev.Stat. § 27-901 (Reissue 2008); (3) in giving jury instruction No. 14 regarding voluntary flight; (4) in denying Pullens the right to counsel at his sentencing hearing; (5) in abusing its discretion in sentencing Pullens; and (6) in denying him effective assistance of counsel at trial.
Apart from rulings under the residual hearsay exception, we review for clear error the factual findings underpinning a trial court's hearsay ruling and review de novo the court's ultimate determination to admit evidence over a hearsay objection.
Because of the factors a trial court must weigh in deciding whether to admit evidence under the residual hearsay exception, an appellate court applies an abuse of discretion standard to hearsay rulings under the residual hearsay exception.
We review for clear error the trial court's factual findings underpinning the excited utterance hearsay exception, resolving evidentiary conflicts in favor of the successful party, who is entitled to every reasonable inference deducible from the evidence.
Under a clearly erroneous standard of review, we do not reweigh the evidence but consider the judgment in a light most favorable to the successful party, resolving evidentiary conflicts in favor of the successful party, who is entitled to every reasonable inference deducible from the evidence.
Because authentication rulings are necessarily fact specific, a trial court has discretion to determine whether evidence has been properly authenticated, and an appellate court reviews a trial court's ruling on authentication for an abuse of discretion.
In reviewing a claim of prejudice from jury instructions given or refused, an appellate court must read the instructions together, and if, taken as a whole, they correctly state the law, are not misleading, and adequately cover the issues supported by the pleadings and evidence, there is no prejudicial error necessitating reversal.
In determining whether a defendant's waiver of counsel was voluntary, knowing, and intelligent, an appellate court applies a "clearly erroneous" standard of review.
A decision whether to grant a continuance in a criminal case is within the discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion.
We first address Pullens' argument that the trial court should have excluded testimony that during the 2000 visit, Pullens had threatened to throw Matsolonia off a balcony. It has been said to be "a universally established rule" that in prosecutions for murder, prior threats by the defendant against the life of the deceased are competent evidence to demonstrate the defendant's state of mind.
The State offered Kenneth's testimony under the residual hearsay exception.
Given that the trial court ultimately found that the statement was an excited utterance, we find it unnecessary and redundant to analyze the additional factors of trustworthiness which the court concluded bolstered the statement's admissibility. We agree that the statement was an excited utterance and that it was, for that reason, properly admitted over Pullens' hearsay objection. In so concluding, we review for clear error the trial court's factual findings underpinning the exception, resolving evidentiary conflicts in favor of the successful party, who is entitled to every reasonable inference deducible from the evidence.
Viewing Kenneth's testimony at trial and in the pretrial hearing as a whole, he made the following account: Kenneth testified that sometime in 2000, Pullens spent several days visiting Matsolonia and Kenneth at their home in Omaha. One evening, Kenneth decided to spend the night in a motel. Kenneth explained that he left home around 10 p.m. because he "didn't want to converse any more with ... the present people that were there." Kenneth stated that to the best of his recollection, it was around 9 a.m. when he arrived back home the next day. He was not completely certain of the time, but explained that he was an early riser and had returned home soon after waking up.
When Kenneth opened the door, Matsolonia immediately came to meet him. She was visibly upset. Kenneth observed that Matsolonia was fully dressed, and he surmised that she had not yet changed from being out all night at the casinos. She had a small "nick" on the side of her eye. Kenneth testified that in the 7 years of their marriage, he had never seen her so emotional.
Unsolicited, Matsolonia began to give Kenneth a "teary-eyed and incoherent, raggedy, choked-up kind of explanation" of what had occurred. Matsolonia indicated that she and Pullens had argued. The argument escalated into a physical tussle, and Pullens physically took Matsolonia out onto the balcony. Matsolonia stated that Pullens then picked her up and threatened to throw her over. But instead, he dropped her onto the cement floor of the balcony and left.
For a statement to qualify as an excited utterance, the following criteria must be established: (1) There must have been a startling event, (2) the statement must relate to the event, and (3) the statement must have been made by the declarant while under the stress of the event.
Pullens first argues that the statement was improperly admitted, because there was only Matsolonia's hearsay statement to establish the startling event. Pullens asserts that we should not allow hearsay to thus lift itself into admissibility by its own bootstraps.
Rule 104 omitted the following statement from the corresponding federal rule: "In making its determination [the judge] is not bound by the rules of evidence except those with respect to privileges."
As is the case in determinations of whether evidence satisfies the excited utterance hearsay exception, admissibility of evidence frequently depends on resolution of difficult preliminary questions of fact.
Around the same time, courts and commentators began to respond to criticism that certain preliminary fact questions closely related to the merits of the case should be given to the jury instead of the
In United States v. Matlock,
Other authorities have explained that traditional exclusionary rules of evidence, such as hearsay, are "`"the child of the jury system"'"
In fact, in certain situations, a suspension of the rules of evidence is a practical necessity, such as where the content of the asserted declaration against interest must be considered in ruling whether it is in fact
Pullens recognizes that under these principles, the majority of other state and federal jurisdictions have explicitly held that independent corroborative proof of the startling event is not required in order to admit excited utterance evidence.
As the U.S. Supreme Court in Matlock explained, federal rule of evidence 104(a), including the phrase, "[i]n making its determination [the judge] is not bound by the rules of evidence except those with respect to privileges," was transmitted to Congress based on the Court's aforementioned view of common law at that time.
The Nebraska Supreme Court committee's quotation of the federal advisory committee then ends with a summation of a tentative California rule, which was never adopted, and a New Jersey evidence rule, both of which stated in summary that the rules of evidence, other than claims of privilege, are inapplicable to preliminary determinations made by a judge. Directly after this extensive quote, the Nebraska Supreme Court committee concluded:
Thus, we reject Pullens' contention that Nebraska, by case law or statute, has adopted a position distinct from federal law and the majority of other states.
In fact, some commentators have argued that many excited utterance cases do not truly present the hearsay bootstrapping issue that, at first blush, they appear to present.
We noted in Jacob that when the victim made her declaration, she appeared flushed, fidgety, and visibly upset. Similarly in this case, Kenneth described visible manifestations of Matsolonia's excitement. Moreover, Kenneth observed an injury, albeit minor, to Matsolonia's face. The State also introduced evidence that a restraining order was issued around the time of the alleged threat to keep Pullens away from Matsolonia. In concluding that a startling event had occurred, the trial court utilized this evidence in conjunction with Matsolonia's hearsay description of
Pullens next argues that the declaration fails to satisfy the spontaneity criteria for an excited utterance. He argues there was insufficient evidence that the incident occurred near the time of the declaration.
We have explained that the time interval between the startling event and the statement in question is not, of itself, dispositive of the spontaneity issue.
We have never held, as Pullens seems to argue, that there must be definitive and direct evidence of the time of the startling event. Rather, we have upheld the admission of statements as excited utterances despite the fact that the record did not precisely reflect the passage of time between the startling event and the declaration, so long as there was a plausible inference from the totality of the circumstances that the declarant did not have time to calmly reflect upon the event.
Despite the fact that Kenneth did not witness what occurred during the time of his departure the night before the startling event and his arrival the next morning, his testimony supports the inference that it occurred shortly before Kenneth returned home. The trial court did not clearly err in concluding that at the time of her declaration to Kenneth, Matsolonia was still under the stress of nervous excitement and shock produced by her son's picking her up on the balcony and threatening to throw her over. Pullens makes no other argument pertaining to his hearsay objection, and we conclude that it was properly overruled.
We next address Pullens' argument that the evidence of his prior threat to Matsolonia was inadmissible because it did not satisfy the criteria for admission of prior bad acts under rule 404(2) or the overarching protections of rule 403. It is within the discretion of the trial court to determine relevancy and admissibility of evidence of other wrongs or acts under rules 403 and 404(2), and the trial court's decision will not be reversed absent an
The admission of prior bad acts involves three elements: (1) The evidence was relevant for some purpose other than to prove the character of a person to show that he or she acted in conformity therewith, (2) the probative value of the evidence is substantially outweighed by its potential for unfair prejudice, and (3) the trial court, if requested, instructed the jury to consider the evidence only for the limited purpose for which it was admitted.
Pullens first argues that the trial court erred in finding that the State had made an adequate showing that a prior bad act occurred. Even if admissible under the three factors listed above, as a preliminary matter, rule 404(2) requires that the State prove the prior bad act by clear and convincing evidence.
The trial court based its finding largely on its assessment that Kenneth was credible and truthful in his report of Matsolonia's condition and as to what she had declared. Pullens questions Matsolonia's credibility and states that there is "no evidence to back up her story."
Pullens also argues that there was no proper purpose for the bad act evidence. The general rule concerning prior bad acts is that if the proffered evidence invites the jury to focus its attention on the character of the defendant rather than determining what actually happened, it is impermissible character evidence and should be excluded.
It is commonly held that prior threats or attacks by the defendant upon the victim may be relevant not to show a general propensity toward violence, but, rather, to demonstrate the nature of the relationship between the victim and the defendant and the defendant's feelings toward the victim.
Accordingly, in several cases, we have upheld the admission of prior attacks or threats by the defendant against the victim. For instance, in State v. Harper,
Nevertheless, Pullens believes that this case is distinguishable from other cases admitting evidence of prior threats or attacks. Pullens' central premise seems to be that because the theory of defense in Pullens' trial was that Matsolonia had committed suicide, there was no proper purpose for which his prior bad act could be admitted into evidence which was not substantially outweighed by the risk of unfair prejudice. We disagree and find that the prior bad act was properly admitted for the purposes of identity, modus operandi, and intent.
We first address the trial court's admission of the prior threat to Matsolonia for the purposes of identity and modus operandi. We have stated that other acts evidence may have probative value as to identity where there are overwhelming similarities between the other crime and the charged offense or offenses, such that the crimes are so similar, unusual, and distinctive that the trial judge could reasonably find that they bear the same signature.
Modus operandi is a characteristic method employed by a defendant in the performance of repeated criminal acts, or literally, a "`"method of working."'"
Pullens does not seem to dispute that the prior act was sufficiently similar to be at least somewhat probative of identity. His principal argument is that identity and modus operandi were not issues at trial, because he never claimed anyone besides himself and Matsolonia were present when she fell to her death. In other words, Pullens believes that identity and modus operandi can only be at issue if the theory of the defense is that some third party, other than the defendant or the victim, perpetrated the crime. We agree that a prior bad act cannot be independently relevant for a proper purpose if that purpose was not at issue in the case.
A similar question was addressed by the Court of Appeals of Ohio in State v. Griffin,
The court held that the prior bad acts were admissible for the proper purpose of identity. The court explained: "[The defendant's] defense was that he was misidentified as the killer—in essence, that someone else did the shooting, not he. By interposing such a defense (as opposed, for example, to accident or self-defense), he put in issue his identity as the killer."
We agree with the reasoning of the court in Griffin. Pullens' trial did not present a case where his involvement was undisputed and where his defense instead rested on the question of whether he had acted with legal justification or excuse for his actions. The central issue was the identity of the person who caused Matsolonia to fall to her death. Pullens spent considerable time in his defense pointing the finger at Matsolonia. He described the reasons she might have had for killing herself. There was even evidence of Matsolonia's possible motivation for killing herself purposefully in a way to implicate Pullens. While the Legislature has elected not to punish those who have made attempts at their own life,
Pullens also makes oblique reference to rule 404 evidence as being in actuality propensity evidence and of its being more prejudicial than probative. We therefore examine the probative value of the prior threat to the issue of identity and whether that value was substantially outweighed by the danger of unfair prejudice.
The rule governing the admissibility of evidence of other crimes, wrongs, or acts is subject to the overriding protection of rule 403, allowing the exclusion of evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
The question of whether other conduct is sufficiently similar to the offense charged is a matter left to the sound discretion of the trial court.
We are cognizant that these two incidents were separated by a period of 4 years. However, while remoteness in time may weaken the value of prior bad acts evidence, such remoteness does not, in and of itself, necessarily justify exclusion of that evidence.
The prior attempt at lifting Matsolonia over a balcony occurred the very last time Pullens saw her before the visit that ended in her death by the same method. The correspondence from Pullens to Matsolonia indicates that their estrangement between the time of these two events was caused by the prior attempt, or, from Pullens' point of view, Matsolonia's false claims as to this attempt. This was not the case of otherwise random signature crimes separated by a great length of time, but was the prior abuse by the same perpetrator toward the same victim, occurring in the background of a continuing tumultuous familial relationship. Instances of past abuse between the same parties are often given special consideration insofar as the strictures of modus operandi or signature crimes are loosened.
Thus, there was a clear connection between the two alleged acts. That connection independently demonstrated identity of the agent of Matsolonia's death in a way that did not depend upon the prohibited inference that because Pullens was a violent or bad character, he was more likely to have committed the crime. The danger of unfair prejudice was no greater here than in any other admission of a prior bad act. But its probative value was substantial.
We find that the trial court did not abuse its discretion in determining that the probative value of the prior threat on the issues of identity and modus operandi was not substantially outweighed by the danger of unfair prejudice. We find no error in the trial court's admission of the prior bad act for those purposes.
We also conclude that the prior bad act was properly admitted to show intent. Intent is the state of mind operative at the time of an action.
Pullens concedes that intent was in issue in this case because it is an element of second degree murder, the crime for which Pullens was charged and convicted. Pullens' general denial of guilt put at issue all the necessary elements of the charged
Pullens' argument is that the probative value of the prior bad act for the purpose of intent was greatly outweighed by its prejudicial effect. He states this is so because, "[T]here could be little argument that if Pullens pushed [Matsolonia] off the balcony, he would not have intended to kill her."
It seems well established that previous discord between two parties in a close and sustained relationship is relevant to the issue of intent.
Pullens cites no case law to support what really appears to be his argument: that certain means of killing someone are ipso facto sufficiently indicative of specific intent, thereby rendering any additional evidence of intent through prior bad acts cumulative and unfairly prejudicial. We certainly find no reason to conclude that being strangled and thrown off a balcony represents such means. In this case, for instance, there was evidence from which a jury could have found there was a sudden quarrel. Matsolonia's glasses were lying on the floor and there were various other disturbed items in her living room. Pullens described Matsolonia as a strong and sometimes antagonistic woman. It was conceivable that Pullens could have committed all the acts leading to Matsolonia's death while provoked to such a degree that he had lost normal self-control. The failure of the State to convince the jury, beyond a reasonable doubt, that Pullens did not act in such a capacity would have resulted in an acquittal.
Pullens' specific intent to kill Matsolonia was a central issue in the case. The probative value of the evidence involves a measurement of the degree to which the evidence persuades the trier of fact that a particular fact exists and the distance of the fact from the ultimate issue
In sum, the trial court did not abuse its discretion in finding that the prior threat against Matsolonia was relevant to the proper purposes of identity, modus operandi, and intent. Further, it did not abuse its discretion in finding that such probative value was not substantially outweighed by the risk of unfair prejudice. The court further mitigated the risk of unfair prejudice by instructing the jurors that they were prohibited from considering this prior act as evidence of Pullens' character or as evidence that he acted in conformity with such character. We find no merit to Pullens' argument that the evidence that he had threatened Matsolonia was inadmissible. We turn now to Pullens' assignment of error challenging the authentication of the e-mails.
Pullens next challenges the admission of the e-mail correspondence with Kanger. According to Pullens, under rule 901,
Rule 901 does not impose a high hurdle for authentication or identification.
There are several ways that the authorship of an e-mail may be shown. E-mails may be authenticated by use of the e-mail address, which many times contains the name of the sender.
The first e-mail sent by Pullens is from the account "stephenpullens@yahoo. com" and is signed "Stephen Pullens." The next e-mail is from the account "pullens_stephen@yahoo.com" and is signed "Stephen Pullens." This e-mail also contains Pullens' Social Security and telephone numbers under the signature line. Four additional e-mails are sent from this account, most of which contain variations on the signature, "Stephen Pullens or friends thereof."
Three e-mails are from the account "grid_works@ureach. com," and two of these e-mails contain no signature. However, one e-mail from this account begins "This is Stephen" and is later signed by "Stepen [sic] Pullens." One e-mail is sent from "mr_san_man2u@yahoo.com." This e-mail contains two letters, the first of which is signed "[t]he above letter is not from Stephen" but the second of which is signed, "Stephen."
A Nebraska State Patrol investigator and computer forensics expert testified that he was able to determine what e-mail addresses were being used from the computer in Matsolonia's apartment during the time that Pullens was staying there immediately before her death. The investigator prepared a report for the police detailing the e-mail addresses found. He specifically recalled "stephenpullens@yahoo.com" and "grid_works@ureach.com" as e-mail addresses used at that computer at that time.
An Omaha police detective testified that he was assigned the tasks of compiling all the information concerning the e-mails and of verifying that each of the e-mails Kanger received was actually sent by Pullens. He testified that there were numerous references to personal facts in the e-mails and that he verified that each of these facts was accurate. He detailed these verifications at trial. They included descriptions of the layout and contents of Matsolonia's apartment, Pullens' previous travel, prior residences, prior employment, schooling, sports activities, and girlfriends. Based on our review of the record, we conclude that the trial court did not abuse its discretion in finding that the State had made a showing that the e-mails were what the State purported them to be—e-mails written by Pullens to Kanger.
Pullens next asserts that the trial court erred in giving the jury an instruction
Pullens does not dispute that instruction No. 14 is a correct statement of the law, but he argues that it was inapplicable to the facts of this case because he did not commit flight. A jury instruction which misstates the issues and has a tendency to confuse the jury is erroneous.
We have said that for departure to take on the legal significance of flight, there must be circumstances present and unexplained which, in conjunction with the leaving, reasonably justify an inference that it was done with a consciousness of guilt and pursuant to an effort to avoid apprehension or prosecution based on that guilt.
A similar argument was presented by the defendant in State v. Jacob,
Pullens admitted that he deliberately left the motel before Kanger arrived and that he understood Kanger considered him a suspect. He then slept in a car, in locations unknown to the police, until leaving town. As soon as Pullens could obtain a passport, he went to Switzerland. In e-mails from Switzerland, Pullens describes how Kanger is unable to extradite him, and Pullens later admits to "running" from the police. It is not necessary for there to be a warrant for the defendant's arrest at the time of the departure in order to constitute flight.
We turn now to Pullens' assignments of error pertaining to the sentencing hearing. His first argument is that he was denied the right to counsel at sentencing. The record shows that before trial, Pullens had requested that he be appointed counsel from the public defender's office. Pullens was subsequently able to procure private counsel, however, and he withdrew the request. There is no evidence in the record that Pullens was dissatisfied with his private counsel until after the verdict. Between the time of the verdict and the sentencing hearing, Pullens sent several letters to the trial judge asking that he be allowed to dismiss his privately retained attorneys and that a public defender be appointed in their stead.
The trial court held hearings on April 9 and 10, 2009, to address Pullens' requests. At the hearings, Pullens stated that he believed there were irregularities at trial and that he thought his attorneys should have gone to see him sooner to discuss pertinent issues. When the attorneys finally visited Pullens in prison, Pullens explained that he had determined that it was too late and had refused to see them.
The court denied Pullens' request to be appointed new counsel and explained that if, after sentencing, Pullens was able to show indigency, he would appoint an attorney for purposes of his appeal. As for the sentencing hearing, the court advised Pullens that he had a right to represent himself or proceed with his current attorneys.
Pullens stated that he wished to represent himself, and he discussed with the court whether he would be able to file a motion based on what he considered newly discovered evidence and prosecutorial misconduct. The court responded that he was free to do so and that the court would require the attorneys to remain and provide assistance to Pullens as technical advisers. Pullens seemed agreeable to this as his best alternative, given the court's refusal to appoint him counsel before sentencing.
On May 26, 2009, the date of the sentencing hearing, Pullens indicated to the court that he had some sort of an arrangement with another private attorney and that he had the funds to hire this person. The trial court noted that the aforementioned attorney was not present. Pullens asked for a continuance in order to procure the attorney for the sentencing hearing. The court denied his request, explaining that sentencing had been scheduled since March 23. Pullens affirmed that, given the court's ruling, he still preferred to represent himself rather than be represented by his standby counsel.
Once the right to counsel attaches, the accused is entitled to counsel at every critical stage of the proceeding.
We also find no error in the trial court's refusal to appoint a public defender for the sentencing hearing. Entitlement to the assistance of counsel and entitlement to the provision of counsel at public expense are different matters.
Even if Pullens had demonstrated indigency and his trial counsel had been appointed, a defendant is not entitled to appointed counsel of his or her choice.
Pullens also asserts that he was deprived of his right to counsel because "[n]owhere did the trial court establish on the record that Pullens['] decision to go forward by himself was a knowing and intelligent waiver of his right to counsel at sentencing."
An effective waiver of an accused's Fifth Amendment right to counsel has two distinct dimensions. First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception; second, the waiver must have been made with full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.
Pullens asserts that the trial court abused its discretion by not affording Pullens an opportunity to review his presentence investigation report (PSI) and by considering a letter written by someone not involved in the case. The PSI consisted of six volumes. At the hearing, the court stated that it "had occasion to review the [PSI] in this matter, and I will include all the letters that the defendant has written to me personally as well as a recent statement from a lady in Santa Monica, California." The woman's statement alleged that Pullens had once attempted to throw her out a window and that she urged the court to sentence Pullens to the maximum. Pullens made no objections during the sentencing hearing regarding the PSI or consideration of the letter. Nor is there any indication in the record that Pullens requested to review the PSI or whether he actually reviewed it.
The sentencing phase is separate and apart from the trial phase, and the traditional rules of evidence may be relaxed following conviction so that the sentencing authority can receive all information pertinent to the imposition of the sentence.
As for the review of the PSI, we have previously held that a defendant waives his or her qualified right to review the PSI by not notifying the trial court that he or she has not personally reviewed the PSI and that he or she wishes to do so.
Finally, Pullens raises several issues with regard to his claims of ineffectiveness of trial counsel. A claim of ineffective assistance of counsel need not be dismissed merely because it is made on direct appeal.
Pullens argues that counsel was ineffective for failing to object to parts of the e-mail correspondence admitted into evidence
Pullens is correct, however, that the exhibits themselves, as found in the record, show only one word blacked out. The e-mails contain several vague references to prior arrests and some other questionable behavior that may or may not be considered prior bad acts or otherwise be objectionable. The State believes that these exhibits were never given to the jury, and the record before us is unclear on this point. The resolution of this question would require an evidentiary hearing, and we thus determine that it is not appropriate for review on direct appeal.
Pullens' remaining arguments concerning ineffective assistance are likewise not appropriate for review without an evidentiary hearing. Pullens argues that his trial counsel failed to adequately cross-examine the pathologist. He claims that the pathologist had never before opined that Matsolonia's injuries were consistent only with manual strangulation, and he claims there would be expert testimony to rebut the pathologist's conclusion. But there is no evidence in the record to show this. Pullens asserts that trial counsel was ineffective for failing to make a motion for new trial based on the State's failure to disclose a report allegedly inconsistent with the theory that Matsolonia was thrown off the balcony. Likewise, this report is not in the record. Pullens is free to raise these issues of ineffective assistance of counsel in a motion for postconviction relief.
We find the issues raised regarding ineffective assistance of counsel are premature, and we find no merit to Pullens' other assignments of error. We affirm the judgment of the trial court.
Affirmed.
CONNOLLY, J., dissenting.
I dissent. I disagree with the majority opinion's standard for admitting evidence of a defendant's extrinsic acts. I also disagree with its conclusion that Pullens' assault on Matsolonia 4 years before her murder was admissible for proving Pullens' identity as the murderer, his modus operandi, or his intent to kill. The evidence was also inadmissible to show Pullens' absence of mistake in killing her. Moreover, the trial court erred in finding that the evidence was relevant to prove Pullens' identity, modus operandi, and intent because its relevancy depended upon an inference that he had acted in conformity with his previous bad conduct. So the admission of this evidence was not harmless error because the court improperly instructed the jury that it could consider the evidence for these purposes.
Before examining these issues, I pause to express my disagreement with the majority opinion's retreat from the specificity of purpose requirements that we set out in State v. Sanchez.
So I disagree with the majority opinion's sweeping statement that a defendant's previous attacks against a victim are generally admissible to show intent, motive, and absence of mistake. In Sanchez, we rejected this smorgasbord approach
Further, we have recognized that a proper limiting instruction in a jury trial is a crucial safeguard against the admission of unduly prejudicial extrinsic acts.
Evidence admitted under rule 404(2) is "one of the most frequently litigated issues on appeal, `and the erroneous admission of such evidence is the largest cause of reversal.'"
Initially, I point out that a distinction exists between a defendant's previous verbal threats and physical assaults. I agree with the majority that a defendant's statements to the effect that he desires or intends to kill the victim can be admissible to prove intent. In State v. Canbaz,
The majority opinion states that extrinsic acts evidence should be excluded if it invites the jury to focus its attention on the defendant's character instead of whether the defendant committed the crime. This standard conflicts with our previous policy statements explaining why such evidence is excluded and when it may be admitted. It is true that extrinsic acts evidence can invite the jury to focus its attention on the defendant's character instead of whether the defendant committed the charged crime. But that statement explains why admitting evidence on a theory of relevancy that depends on a propensity inference is prejudicial.
As we have previously explained, evidence of the defendant's extrinsic bad acts is not excluded because it is irrelevant. It is excluded because its admission creates a risk that the trier of fact will decide guilt on an improper basis.
I agree with the majority that under rule 404(2), the defendant's extrinsic acts must be relevant for a purpose other than to show his or her propensity.
As applied here, rule 404(2) required the trial court to exclude evidence that Pullens had previously assaulted Matsolonia if its relevance to the stated purpose depended upon an inference that he had acted in conformity with a propensity to behave violently toward her. I do not believe that the admission of Pullens' 2000 assault on Matsolonia met that standard when offered to prove his identity, modus operandi, or intent. Nor do I believe that Pullens' identity as the perpetrator or his absence or mistake in committing the crime was at issue.
The main issue was conduct, not identity.
We applied that principle in Sanchez.
The Ohio Court of Appeals applied the same reasoning to a homicide case in which the defendant called the police to say that his girlfriend had just committed suicide. She had been shot in the chest. The trial court admitted extrinsic acts evidence that the defendant had injured her in the past to prove his identity as her murderer. The appellate court reversed, concluding that the defendant's identity was not genuinely at issue under the same reasoning we used in Sanchez:
Sanchez and the Ohio case are connected by two common factors: (1) The defendant denied that a crime was committed; and (2) if the State proved that a crime was committed, the defendant's identity as the perpetrator was certain. "Where a defendant admits that he is the person the complainant or witness means to accuse, but asserts, in essence, that the alleged crime never occurred ... the key issue is not identity, but conduct—what some commentators have refer to as the `corpus delicti issue.'"
"The corpus delicti is the body or substance of the crime—the fact that a crime has been committed, without regard to the identity of the person committing it."
The majority opinion's statement that the corpus delicti was not at issue is misguided. The State has the burden to prove beyond a reasonable doubt the corpus delicti of homicide in a murder prosecution, and that is certainly true when the defendant claims that no murder occurred.
The majority, relying on a different Court of Appeals' case from Ohio, State v. Griffin,
The concurrence in Griffin got it right. It concluded that this reasoning "confuses identity with culpability," and "a plea of not guilty with a genuine issue of identity."
Pullens did not claim, and the evidence did not suggest, that anyone else could have killed Matsolonia. Here, Pullens' identity as the perpetrator was not genuinely at issue and the State was more interested in putting Pullens' propensity to attack Matsolonia before the jury. In some circumstances, I might agree with the majority's statement that "where the prior threat makes reference to a peculiar method of violence that in the end is carried out," it may be evidence of identity. But this reasoning does not apply here, which is obvious from examining the facts of the case that the majority relies on. In Brenk v. State,
In sum, I believe the majority has mistakenly concluded that Pullens' identity as the murderer was at issue. But even if identity had been at issue, the majority opinion fails to recognize that the logic needed to find this evidence relevant to proving identity depends upon a propensity inference. Courts must exercise caution in admitting evidence of extrinsic acts to prove identity. In general, using extrinsic acts evidence to prove identity has caused confusion because the "use of such evidence to prove `identity' most directly raises the forbidden propensity inference."
One protection against the convergence of identity and conduct is the requirement that the defendant's extrinsic acts for proving identity have overwhelming similarities to the charged crime—"such that the crimes are so similar, unusual, and distinctive that the trial judge could reasonably find that they bear the same signature."
But even when the extrinsic acts involve a unique criminal behavior, admitting evidence of the defendant's extrinsic acts against the same victim undercuts the rationale for requiring heightened similarity. It is primarily because the evidence shows the defendant has a propensity for domestic violence against the victim that it is highly persuasive in showing that the defendant must have committed the charged crime. Notably, some states have enacted exceptions to their rule 404 counterparts to admit past acts of domestic violence in prosecutions for domestic violence offenses.
This case illustrates the problem. Here, the propensity inference was unavoidable when offered to prove Pullens' identity as the murderer. As explained, the State could refute Pullens' claim that Matsolonia committed suicide by proving that her death occurred as a result of the criminal agency of another. But it could not refute Pullens' suicide claim by showing that because he had behaved similarly in the past, his suicide claim was false. That proof is exactly what rule 404(2) prohibits. Reasoning that Pullens' previous assault on Matsolonia is relevant to show that he was her killer necessarily includes a propensity inference in the chain of reasoning. The conclusion cannot be separated from an inference that Pullens acted in conformity with his previous bad conduct or his propensity to behave violently toward Matsolonia. I would hold that the court erred in admitting evidence of the previous assault to prove Pullens' identity.
Because proving Pullens' identity as the murderer was not a proper purpose for admitting the evidence, it follows that admitting the evidence to prove Pullens' modus operandi was also an improper purpose. Proving a defendant's modus operandi in committing an extrinsic crime that
Although the majority opinion has failed to discuss this issue, the trial court improperly instructed the jury that it could consider the evidence for proving Pullens' absence of mistake in killing Matsolonia. Absence of mistake was not at issue because Pullens did not claim to have unintentionally killed Matsolonia.
Normally, absence of mistake is not at issue unless the defendant claims that his or her conduct in committing the charged crime was an accident or mistake, or the defendant's act could be criminal or innocent depending on the defendant's state of mind.
The State may not use extrinsic acts evidence to prove intent if the theory of relevance requires the trier of fact to infer "the defendant's state of mind on the charged occasion from the defendant's subjective, personal character, disposition, or propensity."
It is true that courts have frequently admitted evidence of a defendant's extrinsic acts of domestic violence against a victim to show the relationship between the victim and the defendant and the defendant's feelings toward the victim. And it is true that many courts, including this court,
But logical relevance does not mean that the chain of reasoning to make the evidence relevant for the proponent's stated purpose is free of a propensity inference.
Intent is the defendant's state of mind at the time of the criminal act.
Using an extrinsic act to show motive will not always depend on a propensity inference. "For example, an uncharged theft may supply the motive to murder an eyewitness to the theft."
Here, Pullens' hostile feelings toward Matsolonia were logically relevant to why he would have killed her, i.e., his motivation. Showing that the same motivation
Using a defendant's unlawful intent in a previous crime to show the defendant's unlawful intent in committing the charged crime will usually depend on propensity reasoning. "Evidence of unlawful intent in a prior offense is directly relevant to unlawful intent in the present offense only on the assumption that once a person has shown an ability to harbor an evil intent, that person is more likely to entertain the same evil intent on another occasion."
In State v. McManus,
But in McManus, we did not adopt the doctrine of chances for directly proving intent through extrinsic acts that can only be attributed to the defendant. We recognized that critics had argued that the improbability of the defendant's acting innocently depends on his or her propensity to repeat the same crime, i.e., depends on an unchanging character.
We further stated that the number of similar events that are necessary to satisfy
Here, the extrinsic act involved a spontaneous response to the victim, not a complex act like forgery. And it did not clearly show an intent to kill.
Of course, it was unnecessary to use this evidence to show the improbability of an innocent act because Pullens' act could not have been innocent. Even when the extrinsic acts are sufficiently similar and numerous to apply the doctrine of chances, showing the improbability of the defendant's innocent conduct is unnecessary when the defendant's conduct, if proved, could not have been done with an innocent intent. In that circumstance, no reason exists to ask the trier of fact to infer from extrinsic acts that the defendant's conduct in the charged crime was probably not innocent.
The absence of any need for the prejudicial evidence explains in part why many courts have held that when a defendant's conduct conclusively establishes intent, the defendant must actively contest the issue before extrinsic acts evidence is admissible.
The majority opinion attempts to circumvent the propensity reasoning necessary to find the extrinsic acts relevant and the cumulative nature of the evidence. The opinion posits in hindsight that Pullens' conduct was subject to more than one inference regarding his state of mind and that the State needed this evidence to rebut any inference that Pullens killed Matsolonia while acting under a provocation. But Pullens did not claim to have acted innocently in causing Matsolonia's death or claim to have killed her with a legal excuse, justification, or mitigation. He claimed that he did not kill Matsolonia.
Although the majority opinion states that the jury could have found that Pullens acted under a sudden provocation, its conclusion is inconsistent with Pullens' suicide defense and the evidence presented. It's a real stretch to affirm the admission of prejudicial character evidence based on an improbable defense that was not even presented.
I would conclude that the extrinsic acts evidence was inadmissible for any purposes for which the court instructed the jury to consider it. But even if the evidence had been admissible to prove intent, I do not believe that the trial court properly performed its weighing function under rule 403.
As the majority states, the second requirement for admitting evidence of the defendant's extrinsic acts is weighing the evidence's probative value against the danger of unfair prejudice under rule 403.
As explained, extrinsic acts evidence creates a risk that the trier of fact will find guilt based on the defendant's character or disposition and overestimate the value of that evidence.
The majority correctly states that the U.S. Supreme Court has held that federal trial courts may consider the availability of evidentiary alternatives in balancing unfair prejudice against probative value under the federal counterpart to our rule 403.
Specifically, the Court held that the trial court abused its discretion when it rejected the defendant's offer to admit to a previous conviction and instead it admitted the full record of the previous judgment.
So I am puzzled by the majority's use of the Court's statement to support the admission of character evidence despite less prejudicial and equally persuasive evidentiary alternatives.
Moreover, intent is an element of almost every crime. And courts have recognized that in criminal cases, admitting extrinsic acts evidence to show intent has the potential of eviscerating rule 404.
However, by claiming suicide, Pullens did not contest intent. And his conduct, if proved, conclusively established that he intended to kill her. We have stated that independent evidence of specific intent is not required. Instead, the intent with which an act is committed is a mental process and may be inferred from the words and acts of the defendant and from the circumstances surrounding the incident.
The State introduced evidence that Matsolonia had struggled against her attacker before she died and that she had injuries consistent with strangulation. Her purse was dumped. Her glasses were found on the floor by the balcony door. The coffee table was partially off its base. Her necklace pieces were found on the couch and on her person. More important, this court has held that the length of time that it takes to kill a person by strangulation is significant evidence of the defendant's intent
Like other courts, we have also recognized that trial courts should consider the availability of other evidence in balancing probative value against the potential for prejudice. In State v. Williams,
So even if extrinsic acts evidence is admissible under rule 404(2), a trial court has discretion under rule 403 to exclude it to prevent unfair prejudice, confusion of the issues, or misleading the jury, and to avoid needless presentation of cumulative evidence.
Here, even if the court had properly admitted extrinsic evidence to show Pullens' intent, its probative value was weak. Generally, the more isolated and remote the extrinsic act is without any intervening incidents, the less probative it is of the defendant's intent to commit the charged crime independent of a propensity inference.
Here, the extrinsic evidence was weak, and stronger evidentiary alternatives were available to the State that conclusively established Pullens' intent. The State did not need to introduce evidence of Pullens' previous assault on Matsolonia. So even if the evidence's relevancy had not depended upon a propensity inference, I would conclude that the court erred in admitting highly prejudicial evidence to show Pullens' intent to kill. I believe that the probative value of the evidence was substantially
I do not believe that the court's admission of this evidence is harmless. In a jury trial of a criminal case, an erroneous evidential ruling results in prejudice to a defendant unless the State demonstrates that the error was harmless beyond a reasonable doubt.
We have explained that a proper limiting instruction is another critical safeguard in protecting the defendant against the admission of unduly prejudicial extrinsic acts evidence.
In State v. McManus,
Other courts have reached similar conclusions.
We must presume the jury followed the court's instructions and considered evidence for the stated purposes as instructed. Those purposes permitted the jury to confuse proof of Pullens' identity and intent with his propensity to attack Matsolonia. And as in McManus, Pullens' credibility was a critical factor. After the jury heard evidence of Pullens' propensity to attack Matsolonia, he had a dead cat hanging around his neck, and the lingering odor would have permeated the jury room.
Because Pullens' credibility was crucial to his defense, permitting the State to attack his character with unnecessary extrinsic acts should not be considered harmless error. As the majority states, much of the trial focused on the relationship
In closing, a trial court can avoid a retrial by requiring the proponent of extrinsic acts evidence to show that its theory of relevance does not depend on a propensity inference. A trial court should not be hypnotized by the prosecutor's sweeping incantations of identity, intent, modus operandi, motive, and absence of mistake. A trial court should adhere to rules we set out in Sanchez and not assume that the evidence is relevant to a catchall list of purposes. When the relevance is not clear, the court should insist that the proponent explain why the evidence will be necessary and set forth its chain of reasoning.
