CONNOLLY, J.
The State charged Dontavis McClain with first degree felony murder, use of a deadly weapon to commit a felony, and conspiracy to commit robbery. These charges stemmed from the robbing and killing of a pizza delivery worker. The jury found McClain guilty on all counts. McClain argues that the court erred in receiving into evidence his confession and certain DNA reports and related testimony. McClain also argues that the court incorrectly instructed the jury, that there was insufficient evidence to support his convictions, and that he received ineffective assistance of counsel. For various reasons, we find no merit to McClain's assigned errors. We affirm.
On a Friday in September 2010, just after 11 p.m., the Douglas County sheriff's office received a "down[ed] party call at an apartment complex in Omaha, Nebraska.
As soon as the ambulance arrived, the responding officer secured the scene, notified his supervisor, and requested a crime scene unit to process the area. The crime scene unit photographed the scene and bagged items of potential evidentiary value. The crime scene primarily included one apartment in the complex and the immediately surrounding area. The officers canvassed the area for witnesses and possible leads.
Certain items found at the scene — such as a pizza — warming bag and a receipt for pizza — led the officers to a nearby restaurant. The officers discovered that Taylor worked at that restaurant as a pizza delivery worker. The shift manager provided them with the telephone number from which the order had been placed for the delivery to the apartment complex. The officers subpoenaed the owner information and call logs for that telephone number. The resulting information showed that "M. Fountain," later identified as Michelle Fountain, owned the telephone. Followup investigation revealed that Michelle Fountain's son Larry Fountain usually used the telephone.
After speaking with Larry Fountain (hereinafter Fountain), the officers discovered that he had loaned his telephone to Bryton Gibbs, who also lived in the apartment complex, and another man, whom he referred to as "Mississippi," to order pizza. Fountain had overheard Gibbs and "Mississippi" planning to rob a pizza delivery worker. The officers then searched Gibbs' home and interviewed Gibbs' mother, who told them that her son had been "hanging out" with Marcus Robinson and that Robinson had been driving Gibbs around that day. The officers then interviewed Robinson, who confirmed that he had driven Gibbs and "Mississippi" around that day, and he told them that he had overheard "Mississippi" tell Gibbs that "[y]ou didn't have to cut him." Both Fountain and Robinson gave the officers physical and clothing descriptions of Gibbs and "Mississippi."
On Sunday, September 12, 2010, the Douglas County sheriff's office received information that Gibbs and "Mississippi" were at a church at 31st and Lake Streets. Officers went there and arrested them, identifying both Gibbs and "Mississippi" based on prior knowledge and their descriptions. The officers then identified "Mississippi" as McClain from his Mississippi identification card and driver's license.
That same day, the officers placed McClain in an interrogation room. McClain signed a consent form for the officers to collect physical evidence from him. McClain also waived his Miranda rights and agreed to talk to the officers. After initially denying any involvement in Taylor's death, McClain confessed to planning and executing the robbery with Gibbs and said that Gibbs had stabbed Taylor. Before trial, McClain moved to suppress this evidence, but the district court denied
The State charged McClain with first degree felony murder, use of a deadly weapon to commit a felony, and conspiracy to commit robbery. At trial, the State presented testimony from various officers regarding the circumstances surrounding Taylor's death, the processing of the crime scene, and the investigation which led to McClain's arrest. The State also presented testimony from DNA experts which purported to link McClain to the murder. McClain objected to this evidence under Neb.Rev.Stat. § 27-403 (Reissue 2008) and on general foundation grounds. McClain claimed that the DNA laboratory, because of a recent change in protocol, currently calculated the statistical likelihood of a DNA match, when before the change, it would have simply determined that the evidence was inconclusive. McClain argued that there was no explanation for the change in protocol, and so the court should exclude the evidence. The court overruled the objection. The State also presented testimony from Fountain and Robinson, among others, which identified McClain as one of the people involved in the robbing and killing of Taylor.
McClain's defense rested primarily on attacking the credibility of the State's witnesses, emphasizing the relative lack of physical evidence linking McClain to Taylor's death (in contrast to the wealth of evidence linking Gibbs), and arguing that McClain's confession should be given little weight because it resulted from coercion and underhanded tactics. McClain also offered testimony from one witness which seemed to indicate that another individual might have been involved in the crimes, and not McClain. At the end of trial, the jury convicted McClain on all counts. The court sentenced McClain to life to life in prison for the murder conviction, 1 to 50 years in prison for the use of a deadly weapon conviction, and 10 to 10 years in prison for the conspiracy conviction. The court ordered McClain to serve the 10-to-10-year prison sentence concurrently with the life-to-life prison sentence, while the court ordered him to serve the 1-to-50-year prison sentence consecutively to the others.
McClain alleges, consolidated and restated, that the court erred in (1) admitting certain DNA evidence, (2) overruling his motion to suppress evidence of his interrogation, (3) failing to instruct the jury regarding unlawful manslaughter, and (4) finding that there was sufficient evidence to convict him of the crimes charged. McClain also alleges that he received ineffective assistance of counsel.
A DNA report and accompanying testimony purported to link McClain to the crimes. The DNA evidence indicated that McClain was not excluded as a partial contributor to DNA found on the back seat of the getaway car and that Taylor was not excluded as a partial contributor to DNA from apparent blood found on McClain's shoes, though the probabilities were not definitive.
McClain objected to this evidence both before and during trial. McClain noted
McClain argues that the DNA evidence was inadmissible under the Daubert/Schafersman
The standard for reviewing the admissibility of expert testimony is abuse of discretion.
We have explained that all specialized knowledge, including scientific knowledge, falls under the rules of Daubert/Schafersman.
And "to preserve a challenge on appeal to the admissibility of evidence on the basis of Daubert/Schafersman, a litigant must object on that basis and the objection should alert the trial judge and opposing counsel as to the reasons for the objections to the evidence."
McClain did not meet these requirements. McClain filed a pretrial motion in limine to exclude the DNA evidence under Neb.Rev.Stat. §§ 27-401 through 27-403 (Reissue 2008). The motion in limine did not use the language of Daubert/Schafersman to attack the validity or reliability of the evidence, but instead used the language of § 27-403 to argue that the danger of unfair prejudice outweighed the evidence's probative value. Specifically, the motion stated in part: "That any testimony regarding this statistical likelihood that someone other than [McClain] contributed the genetic material is not probative of identification, but could mislead the jury, confuse the issues and is unduly prejudicial to [McClain] and is therefore inadmissible under Neb.Rev.Stat. § 27-403." That the motion in limine contested the
(Emphasis supplied.) Nor did McClain object under Daubert/Schafersman at trial. Instead, McClain specifically noted that his motion in limine was "just a [§ 27-]403 motion [and] not a Daubert- type objection or anything like that." And when the State offered the DNA evidence at trial, McClain's trial counsel renewed his "objection based [only] on the motion in limine previously discussed."
It is true that, as pointed out at oral argument, McClain's trial counsel did include a general foundational objection and explained that he took issue with the expert's testimony because the expert did not know the underlying reasons for the change in protocol. But we do not read this as an objection under Daubert/Schafersman for there is nothing in that objection which would have alerted the court or the State that McClain was challenging the validity or reliability of the DNA testing results. Instead, we read McClain's general foundation objection and argument in his brief as challenging whether the State's witness qualified as an expert because he did not know why the protocol had changed.
On this record, we find no merit to McClain's objection to the expert's qualifications. The expert testified that the DNA laboratory changed its protocol to conform to a national DNA working group's recommendations, that such recommendations come out periodically and are from DNA experts, and that it is the DNA laboratory's general practice to discuss the recommendations and decide whether to adopt them. And the witness had lengthy qualifications and experience working with DNA and the specific processes at issue. We cannot say the court abused its discretion in determining that the witness was a qualified expert on this issue and overruling McClain's general foundation objection. And McClain's brief does not argue that the court erred in admitting the evidence over his objection under § 27-403. We find no abuse of discretion in the court's admitting this evidence.
McClain argues that the court erred in admitting his confession into evidence because (1) it resulted from an illegal arrest and (2) it was not voluntary. The State rejoins that the arrest was proper because the officers had probable cause to arrest McClain and because McClain's confession was voluntary and not the product of any improper interrogation techniques.
In reviewing a trial court's ruling on a motion to suppress, whether based on a claimed violation of the Fourth Amendment or on its alleged involuntariness, we apply a two-part standard of review. Regarding historical facts, we review the court's findings for clear error. Whether those facts meet constitutional standards, however, is a question of law, which we
McClain first argues that the officers lacked probable cause to arrest him. And if that were the case, McClain asserts, his subsequent confession was inadmissible because they obtained it "`"by exploitation of an illegal arrest."'"
Both the state and the federal Constitutions protect individuals against unreasonable searches and seizures by the government.
The court determined that McClain's arrest was proper, and we agree. Our review of the record shows that the officers had probable cause to believe that McClain, referred to at the time of the arrest only as "Mississippi," had committed a crime. The investigation revealed that Gibbs and "Mississippi" were involved in the crimes. Both Fountain and Robinson gave detailed physical and clothing descriptions for "Mississippi," as well as Gibbs, whom the officers also knew from previous incidents. Although Fountain and Robinson were initially less than truthful with the officers, the court found that the information they provided "corroborated the physical evidence at the crime scene and the events that occurred [around] the time that the robbery and homicide occurred." That implied finding of credibility was not clearly erroneous. On the morning of the arrest, the sheriff's office received word that both Gibbs and "Mississippi" were at a church and went to arrest them. The officers noted that the man with Gibbs matched the physical and clothing description of "Mississippi" and specifically that both suspects were "dressed as [the officers] had been told they would be."
In sum, the officers knew that Gibbs and "Mississippi" were involved in the crimes,
McClain also argues that his confession was inadmissible because it was involuntary. McClain asserts that the interrogation room was physically intimidating, that the interrogator was hostile and threatening, and that the interrogator impliedly promised McClain leniency if he cooperated. After viewing the interrogation, however, we conclude that McClain's will was not overborne and that his confession was voluntary.
The Due Process Clauses of both the state and the federal Constitutions preclude admitting an involuntary confession into evidence.
The court determined that McClain's confession was voluntary, and after our review of the interrogation, we agree. Certainly, the physical characteristics of the interrogation room, specifically that it was small and windowless, are one factor to consider.
We also do not find the interrogator's questioning techniques to be improper. The officer raised his voice, pointed his pen at McClain, shifted his chair closer to McClain during the interrogation, and repeatedly used (in various ways) the phrase "cold blooded killer." But interrogation necessarily includes elements of psychological pressure which are meant to elicit a confession.
Nor are we convinced that the interrogator improperly promised McClain a benefit in exchange for his confession. Such a promise may render a suspect's confession involuntary and inadmissible.
This case is notably different from those. Here, at various points, the interrogator said things like the following: "[I]t does matter who did it"; "there's a difference when you're standing up in front of the judge, who did it and didn't do it"; "there's a difference between who did the killing and who was just there"; and "there's also a difference between cooperating and not cooperating." These statements do not promise any definite benefit which could render McClain's subsequent confession involuntary.
We agree with the court that McClain's confession was voluntary. Although the interrogator exerted pressure on McClain, the interrogator's techniques were not improper. And we conclude that the interrogator did not improperly promise McClain any definite benefit in exchange for his confession. This assigned error has no merit.
McClain argues that the court erred in failing to instruct the jury on unlawful act manslaughter as a lesser-included offense of felony murder. McClain's argument, essentially, is that a jury could have found McClain guilty of theft, which is not a predicate felony for felony murder, rather than robbery. And if the jury found him guilty of theft, then he could be guilty only of unlawful act manslaughter and not of felony murder.
Whether a court's jury instructions were correct is a question of law.
We addressed this same argument in
A court must instruct on a lesser-included offense if "(1) the elements of the lesser offense ... are such that one cannot commit the greater offense without simultaneously committing the lesser offense and (2) the evidence produces a rational basis for acquitting the defendant of the greater offense and convicting the defendant of the lesser offense."
There is no rational basis upon which a jury could conclude that McClain committed a theft rather than a robbery, because McClain's actions contained an element of violence or fear, and most likely both. McClain admitted that he grabbed Taylor from outside the apartment, pulled him in, and threw him to the ground. McClain admitted that he heard Taylor repeatedly ask what was going on. McClain said that Gibbs turned off the lights, after which Gibbs stabbed Taylor and McClain took the money from Taylor. A rational jury could not consider this to be a simple theft. Therefore, the court correctly refused to give an unlawful act manslaughter instruction, even assuming that it was a lesser-included offense of felony murder.
McClain argues that the evidence was insufficient for the jury to convict him of felony murder, use of a deadly weapon to commit a felony, and conspiracy to commit robbery. We disagree. There was ample evidence, most notably McClain's own confession, that he and Gibbs planned to and did rob Taylor and that Taylor died after Gibbs stabbed him during the robbery.
In reviewing a sufficiency of the evidence claim, whether the evidence is direct, circumstantial, or a combination thereof, the standard is the same: We do not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence; such matters are for the finder of fact.
The thrust of McClain's argument is that the State failed to adduce sufficient evidence to convict McClain of the relevant charges. In support of this argument, McClain attacks the credibility of the
To prove felony murder, as relevant here, the State had to prove that McClain killed "another person ... in the perpetration of or attempt to perpetrate any ... robbery."
A rational trier of fact could find beyond a reasonable doubt that McClain intended to rob Taylor. A person commits robbery if, with the intent to steal, he or she forcibly and by violence, or by putting in fear, takes any money or personal property from another person.
To prove that McClain was guilty of using a deadly weapon to commit a felony, the State had to prove that McClain used a deadly weapon, such as a
The same reasoning applies here. McClain and Gibbs robbed Taylor, and Taylor died during the perpetration of the robbery. The record shows that McClain intended to rob Taylor, that Gibbs stabbed Taylor with a knife, and that Taylor later died from those wounds. As McClain was an aider and abettor of those criminal acts, a rational trier of fact could properly find beyond a reasonable doubt that McClain was guilty of using a deadly weapon to commit a felony even if McClain did not actually use the knife.
Finally, to prove McClain had conspired to commit a robbery, the State had to prove that McClain intended to promote or facilitate the robbery, that he agreed with one or more persons to commit the robbery, and that McClain, or a coconspirator, committed an overt act furthering the conspiracy.
Finally, McClain alleges several instances of ineffective assistance of counsel. A claim of ineffective assistance of counsel need not be dismissed merely because it is made on direct appeal.
McClain alleges, restated, four different ineffective assistance of counsel claims as follows: Trial counsel failed to (1) adequately communicate with McClain; (2) properly attack the credibility of the State's witnesses, including that one witness was improperly coached; (3) conduct
In his fourth claim, McClain argues that one juror expressed bias toward Taylor and that his trial counsel should have struck her from the jury. McClain argues that his counsel's failure to do so prejudiced him because the juror was more likely to find him guilty and the trial would have turned out differently had a different individual been on the jury.
To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington,
During voir dire, the juror said that she had previously read a newspaper article explaining that "a pizza delivery person was killed, I believe, by three gentlemen in an apartment complex. I'm not sure how. That's basically all I know." When asked whether "there [was] any other information that [she] recall[ed] from that news article about what was going on or the people that allegedly were involved," she replied: "Yes. The gentleman was I believe the father [sic] and was a Christian person who gave some of his money to charities." But the juror, again in response to questioning, explained that if she were selected, she would require the State to meet its burden of proof and to provide her evidence to make a decision. She stated that she would put aside anything that she had heard in the prior weeks and months and rely on the evidence and instructions during trial. Finally, she explained that she had read only the one article, that she had never heard McClain's name in connection with the incident, and that she had not formed an opinion as to McClain's guilt or innocence. This claim has no merit.
We conclude that McClain did not properly preserve any alleged error under Daubert/Schafersman and that the court did not otherwise abuse its discretion in admitting the State's DNA evidence. We also conclude that the court properly admitted McClain's confession into evidence because the officers had probable cause to arrest him and because his confession was voluntary. We find no merit to McClain's arguments that the court improperly instructed the jury or that there was insufficient evidence to sustain the jury's verdicts. Though the record is insufficient to review the majority of McClain's ineffective assistance of counsel claims, the record is sufficient to conclude that his counsel was not ineffective for failing to peremptorily strike one of the jurors during voir dire. We affirm McClain's convictions and sentences.
AFFIRMED.
