PER CURIAM.
Thunder Collins was convicted of first degree murder, attempted second degree murder, first degree assault, and two counts of use of a weapon to commit a felony. He was sentenced to a combined sentence of life plus at least 90 years' imprisonment. Collins appeals to this court pursuant to our statutory obligation to hear all appeals in which the sentence of life imprisonment is imposed.
Collins met one of the victims in this case, Marshall "Flower" Turner, through Collins' brother. Turner was a drug dealer based in Los Angeles (LA), California, and on two occasions while in LA, Collins attempted to purchase marijuana from Turner. After meeting Collins, Turner and his cousin, Timothy "Twin" Thomas, became interested in the possibility of selling crack cocaine in Omaha, Nebraska. Turner contacted Collins, who, in turn, did some "research" into the market for crack cocaine in Omaha. At the time Turner contacted Collins, Turner could sell an ounce of crack cocaine for $400 in LA; Collins determined that the same ounce could sell for upward of $700 to $800 in Omaha. At this point, it was agreed that Turner and Thomas would come to Omaha with cocaine and have Collins sell it for them.
Thereafter, on two separate occasions in July 2008, Turner, Thomas, and their "worker," Darryl Reed, traveled to Omaha from LA in vehicles purchased at automobile auctions. Those vehicles were registered in California using fake identification in the name of an alias belonging to Reed. This identification was also used to check into Omaha motels for the duration of their stays. The record is in dispute over Reed's compensation for his work. Turner
On their first trip, Turner, Thomas, and Reed arrived in Omaha on July 13, 2008. The three met Collins in the parking lot of a gas station located on 72d Street in Omaha. Collins had already procured a room for the three at a nearby motel. There is some dispute in the record as to why, but in any event, the three switched motels the next day and stayed at another motel for the remainder of their trip. Turner and Thomas needed a private place to remove the two packages of cocaine—weighing 1/2 kilogram and 4½ ounces respectively—they had brought from LA, and Collins found such a location for them. On this trip, the cocaine packages were hidden in the outside rear wheel area of the passenger side of their sport utility vehicle.
The three men went to a local Wal-Mart to buy supplies for cooking the cocaine into crack cocaine. Over the course of the next week or so, Collins would stop by the motel at least once a day and Turner and Thomas would "front" him crack cocaine to sell. After selling the crack cocaine, Collins would return with Turner's and Thomas' share of the payment. On approximately July 20, 2008, Turner, Thomas, and Reed returned to LA, having made about $33,000 while in Omaha.
Upon reaching LA, the three procured another vehicle and more cocaine and again left for Omaha, this time arriving on July 25, 2008, in a minivan. The three checked into the former Baymont Inn on 72d Street. The drugs secreted in the vehicle were more accessible on this trip, and Turner and Thomas were able to retrieve the drugs while in the parking lot of the motel. This time, Turner and Thomas brought one package of cocaine weighing 27 ounces and another package weighing 4½ ounces. Again supplies were purchased at a local Wal-Mart, allowing the men to process the cocaine into crack cocaine.
Similar to the previous trip, Collins stopped by the motel a few times a day and was fronted crack cocaine to sell. Motel records and testimony indicate that Turner, Thomas, and Reed checked out of the Baymont Inn on July 28, 2008, and returned to LA. On this trip, Turner and Thomas made between $38,000 and $40,000.
Subsequent to the July visits, Collins again went to LA, where he again met with Turner. Collins told Turner there was a "drought" in Omaha, so Turner and Thomas agreed to return to Omaha with more cocaine. Thereafter, on September 22, 2008, Turner, Thomas, and Reed returned to Omaha in a white 2002 Ford Expedition. They brought along two packages of powder cocaine weighing 1 kilogram and 4 ½ ounces, respectively, and one 8-ounce package of crack cocaine. This time, the three men were accompanied by Turner's girlfriend.
The four checked into the Baymont Inn, using Reed's fake identification, and rented two rooms. Afterward, the group went to Wal-Mart to purchase supplies for processing the crack cocaine. Turner had been in contact with Collins and asked Collins to procure some marijuana for the group. Collins did so and met the group at Wal-Mart to deliver the marijuana. Collins arranged to meet with the group the next morning so that Turner and
The next morning, September 23, 2008, Collins went to a house located on North 70th Circle in Omaha (referred to as the "blue house"). Collins' friend, Ahmad Johnson, resided at this address, and Johnson's father was in the process of purchasing the residence so that a home daycare facility could be opened there. Upon arrival, Collins awoke Johnson and informed him that his "guys from Cali" were in town and that he, Collins, wanted to "get `em." Collins also informed Johnson that the "guys from Cali" had a "bird," which Johnson understood to be drug related. According to Johnson's testimony, he tried to ignore Collins, but ultimately agreed to help Collins find a place for Turner and Thomas to retrieve the cocaine from the Expedition.
Collins and Johnson first went to the mechanic shop where Johnson's friend Karl "Psycho" Patterson worked. Patterson declined to let Collins use the shop, but did take the pair back to his home. While at his home, Patterson gave Collins a weapon, described by Johnson as a black.40-caliber gun. In his testimony, Johnson indicated that Patterson worked near 42d Street and Bedford Avenue in Omaha and lived near 30th and Hamilton Streets in Omaha. Patterson testified at trial that he had never met Collins or Johnson and had not given a gun to Collins. He did testify, however, that he worked at a mechanic shop at 41st Street and Bedford Avenue and that he owned a home at 28th and Charles Streets. Charles Street is located one block north of Hamilton Street in Omaha.
After leaving Patterson's shop, Collins placed the gun in the center console of his vehicle. At that point, Collins and Johnson attempted to contact another friend, Karnell Burton. After driving to Burton's house and seeing his car parked outside, they tried to call Burton a number of times and knocked on his door but did not reach him. Collins and Johnson then left Burton's home and drove around for a while, stopping at a few locations. Collins and Johnson eventually went to the Baymont Inn so that they could meet with Turner and Thomas. Collins told Turner and Thomas to follow him, then asked Johnson whether Turner and Thomas could use the blue house to retrieve the drugs. Johnson testified that he was reluctant to allow the use of the blue house because his children were coming there soon, but that he agreed. On their way back to the blue house, Burton called Johnson. Collins told Johnson to tell Burton to "bring that thing" to the blue house. Burton responded that he had it and was on his way.
After arriving at the blue house at approximately 11 a.m., Johnson removed the gun from the center console and placed it on the stove in the house. Turner and Thomas arrived shortly after Collins and Johnson. Because Johnson's father was home on his lunch break, Turner and Thomas had to wait to retrieve the cocaine. At some point, at Collins' direction, Johnson pulled two vehicles out of the garage. Burton arrived about this same time. Turner testified that Burton was wearing a white shirt and black jeans and had his hair in braids, while Collins was wearing a blue shirt, blue shorts or pants, and a pair of black shoes.
About 15 minutes after arriving, Turner backed the Expedition into the garage so that Thomas could extricate the drugs. The garage had two stalls, each with its own door. The door in front of the Expedition was down, and the other door was partially down. There were two other
While Turner, Thomas, and Collins were in the garage, Johnson and Burton went into the house. Collins joined them, noting that he "didn't know they had that there ... right by the seat belt." He then stated that he wanted to "get these guys." Collins asked Burton for his gun, and Burton handed Collins a small chrome gun. Collins then left the house. Johnson testified that he told Burton to "watch [Collins'] back" and make sure nothing happened. Johnson then testified that he went out to his vehicle and turned up his music "[p]retty loud." According to Johnson, the .40-caliber gun was still on the stove when he left the house.
Upon Collins' reentry into the garage, Turner and Thomas asked Collins whether they could open the garage door further in order to obtain more light. Collins said no, because of the neighbors. According to Turner, Collins then walked around to the side door of the garage and wiggled the door handle, then walked out of the back door of the garage. Turner and Thomas continued to work at retrieving the cocaine.
Turner testified that he was shot in the neck as he and Thomas were working. Turner indicated that he had not seen anyone enter the garage, but that he heard a loud "boom" and was hit by a bullet. Turner fell to the ground and crawled underneath the Expedition, making his way to the driver's side. He testified that he saw a flash while under the vehicle, but did not see who fired the shot. Turner indicated that he could tell that Thomas was running around the garage because he saw Thomas' shoes.
Turner testified that he got out from underneath the Expedition and saw that Collins held Thomas by the hair at gunpoint, standing in the corner of the garage by the locked side door. Turner also testified that Burton was standing on the back bumper of the Expedition with a black gun pointed at Turner. Turner indicated that Collins' gun was silver or chrome.
Collins told Thomas to get into the Expedition, while Turner attempted to get in between Thomas and Collins. Turner testified that he and Thomas both told Collins he could just have the cocaine. Collins then told Burton to get Turner off him, so Burton shot Turner in the buttocks. About the same time, Collins, who was still struggling with Thomas, stated, "Fuck this nigger, `cuz," and shot Thomas. Thomas went limp, and Turner believed that Thomas was dead.
After Thomas was shot, Collins began dragging Thomas' body from the front of the Expedition to the passenger side and requested that Burton help him. At that point, Turner grabbed his cellular telephone and the Expedition's keys and tried to ease into the Expedition. After Collins and Burton were finished dragging Thomas' body, Burton said that they should "make sure this nigger [is] dead." Turner testified he lay down and played dead. Collins told Burton to hurry up. Burton then shot Turner, grazing the right side of his head. Turner heard footsteps walk away and heard Collins and Burton discussing how they needed plastic to wrap the bodies.
Turner heard the pair leave the garage, at which point he jumped up, got into the Expedition, and drove it through the closed garage door. Turner testified that when exiting the garage, he saw Johnson
Johnson testified that after the Expedition drove through the garage door, he turned around and saw Collins and Burton standing behind him. Though Johnson questioned Collins, Collins did not reply. Collins then ran into the house through the front door. Burton also did not reply to Johnson's questions. One of Johnson's neighbors came over to ask Johnson whether he had heard gunshots. Johnson said that he had, and agreed that the neighbor should call the police. At that point, Collins came out of the garage and asked Johnson why he had told the neighbor to call the police. Johnson testified that he ignored Collins' question, then again asked what had happened, Collins got into his vehicle and drove away.
After Collins drove off, Johnson attempted to reach him by cellular telephone. After Johnson finally contacted him, Collins "[t]ried to play dumb and act like he wasn't even at the house." According to Johnson, Collins then disconnected the call and did not answer when Johnson tried to call him again.
Upon law enforcement's arrival, Thomas' body was found in the garage with a blue T-shirt wrapped around his legs. An autopsy was performed on Thomas. Two entrance wounds were found, one on his upper forehead just to the left of the midline and another on the top of his right shoulder. The cause of death was a gunshot wound to the head with hemorrhage and disruption of the brain tissue. The bullet perforated Thomas' brain and skull, exiting through the back right side of his head, causing marked disruption and laceration of the brain as well as multiple skull fractures. There was no "soot" or "stippling" on the forehead wound, so it appears the gun was fired at a distance of more than 2 feet. However, the pathologist who conducted the autopsy allowed that Thomas' hair might have interfered with the deposit of soot. The bullet that caused the shoulder wound was removed from Thomas at the time of the autopsy and was later revealed to be a .40-caliber bullet. Thomas also had scrape-like abrasions over parts of the right side of his body.
At some point after leaving the blue house, Turner arrived at the Baymont Inn. Due to the shooting, Thomas had not removed the drugs from the vehicle. Because of the presence of the drugs, Turner told Reed to move the vehicle, but Reed was unable to do so because the tire was punctured and rubbed against the damaged bumper. Emergency personnel were notified, and Turner was transported to the University of Nebraska Medical Center.
Upon arrival at the medical center, it was determined that Turner had three entry wounds: one on the left side of his neck, one on his left buttock, and one on his left ear. Turner also had abrasions on the right side of his body. The shot to Turner's ear was a "through and through," but the bullet that entered Turner's neck was lodged in his shoulder and fractured his right scapula and humerus. That bullet was not removed and was still in Turner's shoulder at the time of trial.
Turner had surgery to repair a hole in his rectum caused by the bullet that entered his left buttock. As part of that surgery, Turner was required to wear a colostomy bag for about 5 months. Turner also suffered a fracture to his pelvis, an injury to his urethra that required use of a catheter, a large hematoma, and multiple
In addition to Thomas' body, a tarp was found in the back of the garage. That tarp had on it a substance that appeared to be blood. Also found in the garage were two .25-caliber shell casings and two .25-caliber bullets. Testing revealed that these two bullets were fired from the same weapon, and the two shell casings were also fired by the same weapon. In addition, two .40-caliber shell casings were found in the garage. These casings were determined to have been fired from the same weapon. A .40-caliber bullet was recovered from Thomas' right shoulder, while another was recovered from Turner's right thigh. These two bullets were later also determined to have been fired from the same weapon.
Physical evidence tied Collins to the Expedition and to the garage. Collins' prints were found on the Expedition—in particular, his left thumbprint was found on the exterior of the front passenger door and his right palm print was found on the front driver's-side quarter panel and front hood. And Collins' DNA was found on the blue T-shirt found wrapped around Thomas' legs, with testing unable to exclude Collins as a major contributor of the DNA on the inside of the T-shirt. A pair of black sneakers was also found in the kitchen of the blue house. The shoes were identified by Johnson as the shoes worn by Collins. DNA testing could not exclude Thomas as the source of blood found on the shoes or exclude Collins as the source of DNA from inside the shoes.
Both Johnson and Turner admitted to lying to authorities immediately after these events. Turner lied about the circumstances surrounding his injuries, though he gave an accurate description of Collins' vehicle when speaking to law enforcement after the incident. Turner explained that he had no interest in going to jail, given the large quantities of cocaine hidden in the Expedition. Eventually, Johnson and Turner, as well as Reed, entered into agreements with the State for a reduction in charges and sentencing recommendation in return for truthful testimony.
Also presented at trial was evidence of a telephone call from Collins to the home of Johnson's parents. This call was made from the Douglas County Correctional Center on November 10, 2008. In the call, Collins, speaking to Johnson's girlfriend and later to Johnson's father, indicated that Collins had cleared Johnson from being in the garage at the time of the shooting, but that Johnson needed to stop telling people that a robbery was in progress. Collins then explained the felony murder rule and suggested that Johnson's father speak to Johnson about Johnson's changing his story. Johnson testified that in addition to this telephone call, a message from Collins was relayed to him via the barber at the correctional center and that Johnson was told to keep his mouth shut.
Collins was arrested. On November 10, 2008, Collins was charged with first degree murder, attempted second degree murder, and two counts of use of a weapon to commit a felony. An amended information was filed on April 13, 2009, alleging the same charges. On July 13, the State filed a motion for leave to file a second amended information to add the charges of first degree assault and use of a weapon to commit a felony, related to injuries sustained by Turner. Following a hearing, that motion was granted on July 28.
On July 27, 2009, the State filed a notice of its intent to adduce evidence under Neb.
Trial was held from August 10 to August 24, 2009. On August 28, Collins was convicted of all charges except for the third count of use of a weapon to commit a felony. Following trial, Collins filed a motion for new trial because of newly discovered evidence and because the jury was allowed to separate before reaching a verdict. That motion was denied. Collins was sentenced to life imprisonment for first degree murder, 30 to 50 years' imprisonment for attempted second degree murder, 20 to 20 years' imprisonment for first degree assault, and 20 to 20 years' imprisonment on each count of use of a weapon to commit a felony. He appeals.
On appeal, Collins assigns that the district court erred in (1) denying his motion for a directed verdict; (2) admitting evidence of a prior relationship between Collins and the victims, in violation of rule 404; (3) allowing the State to file a second amended information just 20 days prior to trial; (4) overruling Collins' motion for new trial based on newly discovered evidence; (5) overruling Collins' motion for new trial due to the district court's action in allowing the jury to separate during deliberations; and (6) submitting the felony murder charge to the jury.
Regardless of whether the evidence is direct, circumstantial, or a combination thereof, and regardless of whether the issue is labeled as a failure to direct a verdict, insufficiency of the evidence, or failure to prove a prima facie case, the standard is the same: In reviewing a criminal conviction, an appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence; such matters are for the finder of fact, and a conviction will be affirmed, in the absence of prejudicial error, if the evidence admitted at trial, viewed and construed most favorably to the State, is sufficient to support the conviction.
It is within the discretion of the trial court to determine relevancy and admissibility of evidence of other wrongs or acts under rule 404(2), and the trial court's decision will not be reversed absent an abuse of discretion.
A trial court, in its discretion, may permit a criminal information to be amended at any time before verdict or findings if no additional or different offense is charged and the substantial rights of the defendant are not prejudiced.
In a criminal case, a motion for new trial is addressed to the discretion of the trial court, and unless an abuse of
In his first assignment of error, Collins assigns that the district court erred by not granting his motion for a directed verdict. Collins argues that there was insufficient evidence to support his convictions for first degree murder, attempted second degree murder, and first degree assault. And in a related argument, in his sixth assignment of error, Collins argues that the State did not meet its burden, i.e., there was insufficient evidence to submit the felony murder charge to the jury. These assignments of error will be addressed together.
Collins' arguments are largely based on his contention that Turner's testimony is simply not to be believed. But, of course, in reviewing criminal convictions, this court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence. The question of Turner's credibility was for the jury, and the jury obviously believed that Collins was responsible for Thomas' death.
Collins also suggests that the State did not present any direct evidence that he had the intent to kill Thomas or to rob Turner and Thomas. But when the sufficiency of the evidence as to criminal intent is questioned, independent evidence of specific intent is not required. Rather, 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.
Collins also notes the record shows that he had a .25-caliber weapon in his possession during the purported attempted robbery, while Burton was in possession of a.40-caliber weapon. Collins argues that no.25-caliber bullets were found at the scene or were recovered from Turner or Thomas. Collins acknowledges that the shot that killed Thomas was not recovered and that a bullet remains lodged in Turner's shoulder, but insists that those wounds were more characteristic of a .40-caliber weapon. However, Collins simply makes this assertion and does not direct us to any evidence in the record supporting that conclusion.
In sum, viewed in a light most favorable to the State, the evidence shows that Collins was aware of the cocaine secreted in the vehicle and knew the amount of money sale of the cocaine would bring and how much money he would have to pay Turner and Thomas. Johnson testified that Collins told him that he wanted to "get" Turner and Thomas. Collins had Patterson and Burton provide him with two weapons, then lured Turner and Thomas into a closed garage with just one exit. In addition, Turner testified that Collins shot Thomas. Finally, physical evidence presented at trial showed Collins shot Turner and killed Thomas.
Collins' first and sixth assignments of error are without merit.
In his second assignment of error, Collins assigns that evidence of the prior relationship between Collins and Turner and Thomas was inadmissible under rule 404(2), which governs the admissibility
Rule 404(2) prohibits the admission of other bad acts evidence for the purpose of demonstrating a person's propensity to act in a certain manner.
The proponent of evidence offered pursuant to rule 404(2) shall, upon objection to its admissibility, be required to state on the record the specific purpose or purposes for which the evidence is being offered, and the trial court shall similarly state the purpose or purposes for which such evidence is received.
Prior to trial, the State filed a notice of intent to adduce rule 404(2) evidence, specifically Collins' participation in prior drug deals with Turner and Thomas. The State alleged that these prior deals were "relevant and material as to proof of motive, opportunity, intent, preparation, plan, knowledge, and identity."
A hearing on the State's notice was held. At that hearing, the State again argued that Collins' motive for murdering Thomas and attempting to murder Turner was robbery and that evidence regarding the prior relationship between Collins and Turner and Thomas was relevant to showing Collins' motive, opportunity, intent, preparation, plan, knowledge, and identity.
Following the hearing, the district court found that the State had met its burden of showing by clear and convincing evidence that these prior acts were committed by Collins. The district court entered an order allowing the State to adduce such evidence, finding that it was relevant and material for the purpose of proving motive, opportunity, intent, preparation, plan, knowledge, and identity. The jury was instructed as to all seven of these reasons for independent relevancy.
We conclude that the evidence of the prior relationship between Collins
Understanding this prior relationship between Collins and Turner and Thomas shows Collins' motive and intent for shooting Turner and Thomas on September 23, 2008. Motive is defined as that which leads or tempts the mind to indulge in a criminal act.
This prior relationship also shows Collins' knowledge. Collins was in contact with Turner, was aware that Turner and Thomas were in possession of significant quantities of cocaine, and knew that Turner and Thomas were in Omaha with that cocaine. Because of the prior relationship between himself and Turner and Thomas, Collins was in a position to know the details surrounding the plan to remove the cocaine from the Expedition.
While the challenged evidence was independently relevant with respect to Collins' motive, intent, and knowledge, we find that it was not admissible to show opportunity, preparation, plan, or identity.
We first address opportunity. We have recognized that evidence is relevant to commit a crime if it shows the defendant had the capacity to commit the crime, including access to a weapon necessary to commit the crime.
In addition, we find that evidence of this prior relationship did not show either Collins' preparation or plan to commit the murder; rather, these instances again showed only Collins' knowledge of the facts. In order to be admissible to show a plan, however, both the extrinsic acts and the charged crime must be part of a common scheme or plan.
Finally, we find that this extrinsic acts evidence was not independently relevant to Collins' identity as the perpetrator of the crime. Identity was at issue because of testimony admitted at trial of an unidentified black male observed near the
We realize that the admission of other acts evidence is usually prejudicial to the defendant. But in this case, we find that it was not, and instead find that the error in admitting the evidence of this prior relationship was harmless. Harmless error exists when there is some incorrect conduct by the trial court which, on review of the entire record, did not materially influence the jury's verdict adversely to a defendant's substantial right.
We have examined the trial record. Collins' defense against these charges was largely limited to an argument that the State failed to prove his guilt. But the evidence presented at trial shows otherwise. The record includes both scientific evidence and eyewitness testimony showing that Collins was, in fact, the perpetrator of the charges against him. In particular, Collins' fingerprints and palm prints were found on the Expedition and his DNA was found on a T-shirt wrapped around Thomas' legs. Also, DNA that could not be excluded as belonging to Collins and Thomas was found on shoes identified as Collins' shoes and found in the kitchen of the blue house.
In addition, Turner testified that it was Collins who shot him. Johnson testified that Collins told him he wanted to "get" Turner and Thomas and that Collins left the kitchen of the blue house with a weapon. And shortly thereafter, the shooting, and Turner's subsequent escape, occurred.
As such, while we find merit to Collins' second assignment of error, namely that the district court erred in admitting evidence of Collins' prior relationship with Turner and Thomas, we conclude that the admission of this evidence was not prejudicial to Collins and thus is not reversible error.
In his third assignment of error, Collins contends that the district court erred in allowing the State to amend the information to add a charge of first degree assault just 20 days before trial.
The State argues that Collins waived any argument he has with respect to the amendment of the information. We noted in State v. Walker
And in any case, it cannot be said that the district court abused its discretion in allowing the State to file an amended information. There was sufficient evidence to charge Collins with first degree assault. And Collins has not shown how he was prejudiced by this charge. In particular, this court has noted that when a continuance will cure the prejudice caused
Collins' third assignment of error is without merit.
In his fourth assignment of error, Collins argues that the district court erred in denying his motion for new trial on the basis of newly discovered evidence. At the hearing on the motion for new trial, Collins introduced the testimony of Renae Heeley. Heeley resided in an apartment complex on North 70th Circle. According to Heeley's testimony, on the day of the shooting, she heard gunshots, squealing tires, and a crash. Upon looking out of her window, Heeley observed a damaged white sport utility vehicle driving down the street. Heeley indicated that at some point later that day, she left her apartment and observed a black woman in her twenties exit the garage of the blue house and walk up to a neighbor's house. Heeley testified that she overheard the woman, who was crying, tell the neighbor that one of the "Johnson boys" shot somebody in the garage. Heeley testified that the woman entered the neighbor's home and that later, the woman was removed from the home and placed in a police cruiser.
On cross-examination, Heeley admitted that she could not actually see from where the woman in question came and did not actually see the woman exit the garage. Heeley indicated that she did not tell law enforcement what the woman said, because she did not think of it at the time.
Collins heard about Heeley's alleged observation through Collins' counsel's law partner, Joseph Kuehl. Kuehl represented the father of Heeley's child in juvenile proceedings. Kuehl testified that he had a conversation with Heeley shortly after his partner was appointed as Collins' counsel, but that Heeley did not mention the identification of the "Johnson boys" at that time; Heeley mentioned only that she heard and observed the gunshots and the getaway of the sport utility vehicle.
Law enforcement officers who responded to the scene indicated that no one besides Johnson and Burton was transported from the scene. In addition, no officers were aware of a young black woman being placed in a police cruiser. Law enforcement officers also indicated that Heeley was interviewed after the incident and that she was even listed on the State's witness list, but that she never informed anyone of what she allegedly overheard.
The district court did not find Heeley to be credible and denied Collins' motion for new trial. It cannot be said that the district court abused its discretion in reaching this conclusion.
As an initial matter, Heeley's testimony was contradicted by other witnesses. She indicated that she saw a young black woman being placed in a police cruiser, though law enforcement indicated that this did not occur. And Heeley testified that she saw the woman walk from the garage at the blue house, but later admitted that she did not see the woman actually exit the garage. Moreover, Heeley was interviewed by law enforcement on two occasions after the events of that day, but did not tell anyone about what she overheard. Nor did she tell that to Kuehl initially.
This evidence is not newly discovered within the meaning of Neb.Rev.Stat. § 29-2101(5) (Reissue 2008), which provides
And even if the evidence was "newly discovered," it is still not relevant. Nor is it exculpatory of Collins; because one of the "Johnson boys" was allegedly involved does not mean that someone else, i.e. Collins, was not also involved.
Collins' fourth assignment of error is without merit.
In his fifth assignment of error, Collins argues that the district court erred in overruling his motion for new trial on the basis that the court allowed the jury to separate during deliberations. Collins' case was submitted to the jury on Friday, August 21, 2009. The jury did not reach a verdict on that day and was permitted to separate and return to deliberate on Monday, August 24, at which point it returned with its verdicts.
On appeal, Collins argues that he was not asked whether it was acceptable for the jury to separate during deliberations. Collins contends that in the absence of his express agreement, the district court erred by allowing the jury to separate and a rebuttable presumption of prejudice exists, which was not rebutted by the State.
Neb.Rev.Stat. § 29-2022 (Reissue 2008) provides in part that "[w]hen a case is finally submitted to the jury, they 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."
At issue is the requirement of this statute and several decades of our case law on the subject. That case law begins with our discussion of jury separation in Polin v. State.
We considered Polin in Sedlacek v. State.
But we went beyond Polin and Sedlacek in State v. Robbins.
We acknowledged in Robbins that "[m]any cases treat the defendant's right to have the jury sequestered during deliberations as procedural only and take the position that the failure of a defendant to make timely objection to jury separation during deliberations results in a loss of the right."
But that conclusion was unwarranted by Polin, Sedlacek, or the language of § 29-2022, and inconsistent with extremely well-established principles of law. We have often said that failure to make a timely objection waives the right to assert prejudicial error on appeal.
And we have applied those principles to find waiver of statutory and even constitutional rights when a defendant fails to raise them. For example, the failure of defendants to raise the unconstitutionality of the charging statute has been held to be waived by the failure to object.
We also note that in reaching its decision in Robbins, this court cited somewhat extensively to an annotation in the American Law Reports entitled "Separation of Jury in Criminal Case After Submission of Cause—Modern Cases."
This court's decision in Robbins articulated no basis for concluding that the statutory right established by § 29-2022 was distinguishable from all of the other circumstances in which a defendant waives his or her rights by not making a timely objection. That decision was, therefore, inconsistent with judicial efficiency, sound policy, and basic, well-established legal principles. We therefore overrule our decision in Robbins to the extent that it concludes that express agreement or consent is required by a defendant in order to waive his or her rights under § 29-2022. In doing so, we do not retreat from the principle that the language of § 29-2022 is mandatory and places the duty of sequestration directly upon the trial court. Our opinion should not be read as tacitly approving the notion that trial courts may disregard this mandatory duty—whether accidentally or intentionally. Indeed, the better practice would be for the district court to note any explicit consent, or lack thereof, on the record.
But our overruling of Robbins is prospective only, and we decline to apply our newly announced rule in this case. At the time of trial, the applicable rule was set forth in Robbins:
Because the district court failed to obtain express agreement or consent for the jury's separation, Collins is entitled to a presumption that he was prejudiced by that separation. The State has a right to rebut that presumption. We therefore remand the cause to the district court for a hearing at which the State has the burden of showing that no injury resulted from the jury's separation.
The cause is remanded for further proceedings consistent with this opinion.
REMANDED FOR FURTHER PROCEEDINGS.
HEAVICAN, C.J., concurring.
I concur with the decision of the court affirming Collins' sentence and remanding the cause for hearing on the jury separation
As noted by the majority's opinion, rule 404(2) provides that
But this court has previously noted some limits to the applicability of rule 404(2): those "[b]ad acts that form the factual setting of the crime in issue or that form an integral part of the crime charged are not covered under rule 404(2)."
In this case, the prior relationship at issue was part of a larger drug conspiracy involving the same four persons: Collins, Turner, Thomas, and Reed. Many of the details of the trips that largely defined this relationship were similar: The motels where Turner, Thomas, and Reed stayed were often the same; supplies were purchased at the same Omaha-area Wal-Mart location during each visit; Reed's false identification was used in each instance; and each visit involved the secreting of progressively increasing quantities of powder cocaine, and eventually also crack cocaine, in the body of a vehicle purchased at an automobile auction.
During each visit, Turner and Thomas would manufacture the crack cocaine from powder cocaine in their motel room using supplies purchased at an area Wal-Mart. At various times during this process, Turner and Thomas would "front" the drugs to Collins, who would pick up the crack cocaine from the motel and sell it in the Omaha area. Then, on Collins' next visit to the motel to pick up more drugs, he would give Turner and Thomas the proceeds and get his share of the profit. And after the drugs were all manufactured and sold, it was Reed's job to clean up the motel room and dispose of all supplies used to manufacture the crack cocaine.
Understanding the nature of the prior relationship between Collins, Turner, and Thomas is necessary to paint a coherent picture of the facts surrounding the crimes with which Collins was charged. The State introduced evidence of this prior relationship in order to explain why Turner and Thomas were in Omaha and why Collins was with them on September 23, 2008. This evidence explains how Collins came to know that cocaine was hidden in the white Expedition and why Collins might want to rob or murder Turner and Thomas. In examining the record, I find it difficult to determine at what point these alleged "prior bad acts" ended and the events forming the basis for the charges against Collins began.
As such, I would conclude that this prior relationship is "`"`"so blended or connected[] with the one[] on trial ... that proof of one incidentally involves the other[]; or explains the circumstances; or tends logically to prove any element of the crime charged," it is admissible as an integral part of the immediate context of the crime charged. ...'"'"
CASSEL, Judge, joins in this concurrence.
