GERRARD, J.
The defendant, Karnell D. Burton, was convicted of manslaughter, attempted second degree murder, first degree assault, and two counts of use of a deadly weapon to commit a felony. He appeals, claiming that his statutory right to a speedy trial was violated, that the State committed misconduct during closing statements, that the court erred in excluding evidence that two of the State's witnesses belonged to a gang, and that the sentences imposed were excessive. But we affirm Burton's convictions and sentences.
Because the issues presented on appeal are relatively narrow, a detailed recitation of all the evidence presented at trial is unnecessary. Rather, it will be more helpful to relate a general summary of the evidence, followed below by a more detailed examination of the facts relevant to each issue.
This case arises out of the shootings of Timothy Thomas and his cousin Marshall Turner, which left Thomas dead and Turner seriously wounded. Generally, the State accused Burton and his alleged accomplice, Thunder Collins, of shooting Thomas and Turner in an attempt to steal cocaine from them. In connection with those shootings, Burton was charged with first degree murder, attempted second degree murder, first degree assault, and three counts of use of a deadly weapon to commit a felony.
The State's evidence at trial, taken in the light most favorable to the State,
Collins contacted his friend Ahmad Johnson, who testified at trial that Collins asked him to help Collins "get these guys." Collins told Johnson that they needed a secure location to get the drugs out of the SUV. Johnson asked his friend Karl Patterson whether they could use Patterson's automotive repair shop. Patterson refused, but, according to Johnson, agreed to give Collins a gun. Collins and Johnson then tried to contact Burton, but failed. So, Collins told Turner and Thomas to follow Collins in their SUV to Johnson's house, to use Johnson's garage to remove the drugs from the SUV.
Burton called Collins back, and Collins told him to come to Johnson's house, so he did. Johnson took the gun that they had gotten from Patterson and placed it in the kitchen. Burton and Johnson were in the house talking when Collins came in and asked for a gun Burton had brought with him, which was smaller. Johnson said he told Burton to "watch [Collins'] back," then went outside and sat in his car, listening to music.
Turner and Thomas were still in the garage, and Turner was watching Thomas work to remove the drugs from the SUV, when Turner was suddenly shot in the neck. Turner fell to the ground and crawled under the SUV. When he got up, he saw Burton pointing a gun at him and Collins holding Thomas by the hair. Turner tried to get between Collins and Thomas, so Burton shot Turner in the buttocks. Collins then shot Thomas in the head. Burton went to help Collins move Thomas' body, and Turner heard Burton say, "Let me make sure this nigger dead." Another shot was fired, grazing Turner's head. Turner heard Collins and Burton go out the back door of the garage, so he got into the SUV, drove it through the closed garage door, and fled.
Burton was convicted of manslaughter, attempted second degree murder, first degree assault, and two counts of use of a deadly weapon to commit a felony, and he was sentenced to a total of 80 to 130 years' imprisonment. He appeals.
Burton assigns that the district court (1) violated his statutory right to a speedy trial when it granted the State's motion to file an amended information which added the charges of first degree assault and use of a deadly weapon to commit a felony, over his objection; (2) committed reversible error when it denied his motion for mistrial based on prosecutorial misconduct during the State's rebuttal in final argument; (3) committed reversible error when it refused to allow him to present evidence that two of the State's witnesses, Reed and Turner, were members of a violent street gang; and (4) abused its discretion by imposing excessive sentences.
Deciding to grant or deny an amendment to a pleading,
Burton was initially charged on November 10, 2008, with four counts: first degree murder, attempted second degree murder, and two counts of use of a deadly weapon to commit a felony. About 3 months before trial was scheduled to begin, the State moved for leave to file an amended information, adding a charge of first degree assault and an additional charge of use of a deadly weapon to commit a felony, both arising out of the same set of facts as the original charges. Burton objected, arguing that the "six-month statutory requirement for speedy trial would be, in its spirit, violated." Burton argued that while he had waived his statutory speedy trial right with respect to the charges that were already pending, he had not waived it with respect to the charges the State was proposing to add. But over Burton's objection, the motion for leave to file an amended information was sustained, and the amended information was filed on July 28, 2009.
Neb.Rev.Stat. § 29-1207 (Reissue 2008) provides that every person indicted or informed against for any offense shall be brought to trial within 6 months.
Burton argues that his statutory right to a speedy trial was violated in this case. Burton concedes that the statutory right to a speedy trial can be waived
However, Burton never filed a motion to discharge those counts. And Neb.Rev.Stat. § 29-1209 (Reissue 2008) clearly provides that the "[f]ailure of the defendant to move for discharge prior to trial or entry of a plea of guilty or nolo contendere shall constitute a waiver of the right to speedy trial." We have explained that it is incumbent upon a defendant to file a timely motion for discharge in order to avoid the waiver provided for by § 29-1209
Burton's appellate brief characterizes the question presented as whether he was required to file a notice of appeal within 30 days of the court's order granting the State's leave to amend, as he would have been required to do had a motion to discharge been made and overruled.
Obviously, pursuant to § 29-1209, the answer is that he did. Burton contends that the objection to the amended information was not a motion to discharge, "because the complained[-]of additional counts were not pending and there was nothing from which he could be `discharged.'"
Burton argues at length that procedural problems would ensue if a defendant were required to appeal when a speedy trial claim was presented with respect to some, but not all, of the charges pending. But we are not faced in this appeal with whether a defendant whose motion to discharge is overruled with respect to some but not all of the charges should be required to appeal, or what effect that would have on the charges that remained. Instead, the only question is whether Burton had to file a motion to discharge to preserve his speedy trial claim. And § 29-1209 answers that question.
Burton waived any violation of his right to speedy trial by not moving for discharge before trial. His first assignment of error is without merit.
Burton had been taken into police custody at the scene of the crime and gave a statement to police that was not admitted into evidence at trial. But, when Burton testified at trial, his statement was used as the basis for impeachment on cross-examination.
Turner and Johnson testified at trial, and their accounts of events are essentially set forth above—that Turner and Thomas were in the garage at Johnson's house when Collins and Burton came into the garage and attacked them. Specifically, Turner said that Collins shot him, then Burton shot at him two more times, while Collins killed Thomas.
Burton gave a different account. Burton testified at trial that he and Johnson had both been in the kitchen at Johnson's house, when they heard a scuffle in the garage and the sound of a gunshot. Burton said that he grabbed a gun off the stove and that he and Johnson both ran into the garage. According to Burton, he shot Turner in the buttocks because Collins, fighting with Turner and Thomas, had said that Turner had a gun. Burton said that after he shot Turner in the buttocks, Collins took the gun from him and Burton left the garage. Burton said he did not
But on cross-examination, Burton admitted initially telling police that neither he nor Johnson had been in the garage at all. Then, eventually, Burton had admitted to police that he had shot Turner. Specifically, Burton did not deny telling police that he and Johnson had been in the garage watching the removal of the drugs, then gone into the kitchen, where he had been given a gun to take back into the garage. Burton admitted telling police, contrary to his trial testimony, that he and Collins had been in the garage, but not Johnson. Nor did Burton deny telling police that, contrary to his trial testimony, he had been present when Collins shot Turner and Thomas and that Collins had shot both men before Burton shot Turner.
Burton's responses to the State's impeachment were somewhat evasive, and it was not always clear whether Burton was admitting the statements he made to police or simply claiming not to recall whether or not he had made them. Most of the time, Burton simply did not "deny" making the statements with which he was confronted by the State. But at various other points, Burton seemed to concede at least making those statements to police, although he claimed that he had been lying to them at the time. Some examples of these colloquies will illustrate the ambiguity:
This ambiguity led to some confusion during closing statements. Defense counsel conceded, during his closing statement, that Burton had initially lied to police. But, he argued, so had Johnson and Turner. Defense counsel contended that Burton
The State replied to that in its rebuttal statement, remarking that "the defense counsel wants to talk a little bit about day one and what [Burton] said on day one. Well, let's talk about what [Burton] said on day one. . . ." The State argued that unlike Burton's testimony at trial, Burton's initial statement to police had mirrored the statements that Turner was making to police at the same time in the hospital where he was being treated. The State's argument, essentially, was that Burton's trial testimony was not credible, but that Turner's testimony was credible, because the statements that Turner and Burton had given to police just after the shootings were far more consistent with each other.
Burton objected, asserting that there was "no evidence as to what the statement was other than the testimony from [Burton]." So, Burton argued, the State was making "improper rebuttal." The State contended that it had "asked these questions of [Burton] at the time he was on the stand and went through his entire statement," so it was in the record. Essentially, the State contended that Burton had admitted making the statements. Burton's counsel replied that Burton had "said he didn't remember and he doesn't deny he said those things" but that the State could not "come up here and say here's what the statement was," because the statement itself was not in evidence.
The court agreed that while the State could point out inconsistency between Burton's testimony and his statement to police, the State could not refer to parts of the statement to police that were not in evidence. The State continued its rebuttal. Then, after another reference by the State to the consistency of Burton's statement to police with Turner's, Burton reasserted his objection and moved for a mistrial. Although the court cautioned the State that "you need to stay away from the body of the statement that's not in," the motion for mistrial was overruled.
Burton's argument is twofold: First, he contends that his statements to police were not in evidence, and second, he contends that his statements can be used only for impeachment, not as substantive evidence. Burton concludes, therefore, that the State's rebuttal was improper to the extent that the State's argument relied on the substance of Burton's statement.
We begin with Burton's second point: Even assuming, for the moment, that Burton's statement to police was available only for impeachment, Burton has not clearly explained what was improper about the State's argument. Burton contends that the impropriety was in using it to show that Turner's testimony was credible, as opposed to showing that Burton's was incredible. But it is hard to separate the two. The fundamental issue at trial was whether the jury should believe Burton or believe Johnson and Turner. The credibility of each witness was not being judged in a vacuum, and it was hardly improper for the State to point out that Burton's statement to police was more consistent with Turner's statements than with Burton's own trial testimony. That this would have the effect of bolstering Turner's credibility at the expense of Burton's was simply a result of the context of this trial, not any impropriety in the argument. In short, in this case, it would have been hard to make any argument about the credibility of any of the witnesses that did not implicate the credibility of the others.
But evidence of Burton's statements to police was offered through Burton's own testimony, and although his testimony was not always clear, he implicitly acknowledged that the statements with which he was confronted were things he had actually said to police. We have said, in the context of impeachment, that the trial court has "considerable discretion" in determining whether testimony is inconsistent with prior statements and that a court may find inconsistency in evasive answers, inability to recall, silence, or changes of position.
As noted above, Burton was evasive when confronted with his alleged statements to police. But Burton concedes that, at the very least, he did not deny making those statements. And eventually, he at least implicitly acknowledged them. Burton was trying to do two contradictory things during cross-examination: "not deny" making the statements to police, then also assert that he had been lying when he made them. But in making the second assertion, he contradicted the first, and tacitly admitted that the statements had been made. It was Burton's decision to play cat and mouse with the State during cross-examination, but it was the court's job to decide who won. It would certainly not be an abuse of discretion to conclude that Burton's rather carefully worded "non-denials" were, in fact, acknowledgments. Nor would it be an abuse of discretion to conclude that, when Burton's entire testimony is considered, he effectively acknowledged giving the police the account of events with which he was confronted on cross-examination. And it was certainly not an abuse of discretion not to grant a mistrial.
A mistrial is properly granted in a criminal case where an event occurs during the course of a trial which is of such a nature that its damaging effect cannot be removed by proper admonition or instruction to the jury and thus prevents a fair trial.
The State filed a motion in limine for an order precluding Burton from adducing evidence that, among other things, any witness had been a member of a street gang. The State argued at the pretrial hearing on the motion that such evidence should be excluded under Neb. Evid. R. 401 and 404.
Reed testified at trial, and although he acknowledged that he was a drug dealer, he neither testified to nor was asked about gang membership, and no offer of proof was made in that regard. Turner also acknowledged that he was a drug dealer and, on cross-examination, was asked about the tattoo on his right arm. The State objected to the question based on relevance, and the objection was sustained. Outside the presence of the jury, Turner explained that the tattoo represented the 52 Hoover Crips. But, Turner said, his drug dealing was not related to gang membership.
Burton made an offer of proof, arguing that Turner's gang ties went to his credibility and background. And, Burton argued, it was unlikely that members of the 52 Hoover Crips would transport cocaine from California without firearms or protection, so Burton asserted that Turner's gang membership was also relevant to the possible source of the guns used in the killing. And because Burton was not a gang member, but Collins allegedly was (although Burton conceded there was no evidence of that), Burton argued that Turner's gang membership went to show the participants' ties to one another.
The State objected on several grounds, including Neb. Evid. R. 401, 404, 607, 608, and 609.
Later, Burton also made an offer of proof with respect to a statement Turner had made to police shortly after the shooting, in which he said that the shooting would not have happened to him in Los Angeles because, as a member of the 52 Hoover Crips, he was respected. The court refused the offer of proof, declining
Although the State objected on several grounds, the primary issue is whether the proffered evidence was relevant. Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
We are not persuaded by this argument. To begin with, there is no basis in the record to conclude that gang members are substantially more likely (as opposed to drug dealers generally) to be carrying weapons. Nor is it clear how Burton would have been prejudiced in that regard. Burton argues that he "was trying to prove the possibility that one of the two guns involved in the shooting was brought to the scene by Turner or Thomas."
Burton also argues that the gang membership evidence was relevant to establish the relationship of Turner, Thomas, Reed, and Collins. But, as noted above, no offer of proof was made with respect to Reed or Collins. That leaves Turner and Thomas, who were actually related, because they were cousins. And the drug-dealing conspiracy was well explained. Burton also argues that if Collins was aware of Turner's and Thomas' gang membership, he would have told Burton, and that would have heightened Burton's apprehension and strengthened his argument that he fired on Turner in defense of Collins. However, that argument depends not only on Turner's gang membership, but upon Collins' knowledge of it, Burton's knowledge of it, and Burton's fear of it—none of which were established by Burton's offer of proof.
In short, if Burton wanted to argue that it was unlikely that Turner and Thomas, as drug dealers, were unarmed, he could have done so. And given that Burton's offer of proof was limited to Turner, his remaining arguments for how the evidence was relevant are purely speculative and depend on other evidence that he neither adduced nor offered to prove. The district court did not abuse its discretion in concluding that evidence of gang membership was not relevant. Burton's third assignment of error is without merit.
The jury found Burton guilty of attempted second degree murder and first degree assault, and corresponding weapons charges. The jury did not find Burton guilty of murder, instead finding that he committed the lesser-included offense of manslaughter and a corresponding weapons charge. The court granted Burton's motion for judgment notwithstanding the verdict on that weapons charge, because
At sentencing, the court acknowledged Burton's relative youth and lack of a particularly substantial criminal record. But, the court explained, even if Burton's testimony were believed, "you hear that scuffle, and you grab your gun and you run out there. Out of some misplaced sense of loyalty for a guy that you hardly know, you're willing to shoot at someone you don't know." And, the court noted, Turner easily could have died. So, the court concluded, "there were any number of times in that process . . . that you could have turned back, and you didn't. And as a result, I have to weight [sic] the fact that one person died and one person was very seriously injured."
Burton was sentenced on each count as follows: 20 to 20 years' imprisonment for manslaughter, 20 to 40 years' imprisonment for attempted second degree murder, 20 to 30 years' imprisonment for first degree assault, and 10 to 20 years' imprisonment for each of the two weapons convictions. All the sentences were to be served consecutively, resulting in a total sentence of 80 to 130 years' imprisonment.
A sentence imposed within statutory limits will not be disturbed on appeal absent an abuse of discretion by the trial court.
Rather, Burton argues that he was only 20 years old at the time of the offense and that although he had some prior felony arrests, he had no felony convictions. And Burton argues that there is no way of knowing whether the jury believed that he brought his own gun to the crime scene or perhaps believed he was acting in defense of Collins but found that the force he used was excessive. Burton suggests that "it is just as reasonable to believe the latter interpretation," in which case, the sentences are excessive.
But in imposing a sentence, the sentencing court is not limited to any mathematically applied set of factors. The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge's observation of the defendant's demeanor and attitude and all the facts and circumstances surrounding the defendant's life.
The record, as set forth above, shows that the court appropriately considered these factors and was persuaded by the nature of the offenses, and the violence involved, to impose lengthy terms of imprisonment. The court did not abuse its discretion in doing so, and we find no merit to Burton's final assignment of error.
We find no merit to Burton's assignments of error and, for the foregoing reasons, affirm his convictions and sentences.
AFFIRMED.
WRIGHT, J., not participating.
