Stephan, J.
After a jury trial, Malique A. Stevens was convicted of robbery and sentenced to 6 to 10 years' imprisonment. A codefendant, Alfredo V. Dominguez, was tried with Stevens and convicted of the same crime. In this appeal, Stevens challenges various procedural and evidentiary rulings. We find no merit in any of his assignments of error and therefore affirm his conviction and sentence.
On the evening of December 3, 2012, Janelle Yaunk parked her car in the lot of an apartment complex in north Lincoln, Nebraska, where a friend resided. As she walked toward the entrance of the building, she was approached by a young man who displayed a gun. Two other young men soon joined him. All three wore hoods over their heads and foreheads, and the rest of their faces, except their eyes, were covered with bandannas.
The man with the gun ordered Yaunk to give him money. When she said she had none, he struck her in the face with the gun, and she sat on the ground. One of the other two men took her car keys and cell phone from her. The men then made her start the car for them before they ordered her out of the vehicle and drove away in it.
Yaunk's friend arrived soon after, and they called the police. Shortly after the robbery was reported, a Lincoln police officer observed the stolen car and attempted to stop it. Three individuals in the car jumped out of it while it was still moving and ran away. The officer attempted to give chase but was unable to apprehend them. A cell phone that belonged to Orlando Neal was found in the abandoned vehicle. A pellet gun was found approximately 30 feet from the vehicle.
Neal eventually confessed to the robbery and was subsequently convicted and sentenced. In his initial statements to the police, he implicated Stevens and Dominguez as the other two participants in the robbery. In a subsequent deposition, however, Neal stated Stevens and Dominguez were not involved. Investigators found Stevens' fingerprints on the exterior of Yaunk's car, and this evidence was admitted at trial. Investigators also determined
Both Stevens and Dominguez were 15 years old at the time the robbery was committed. They were each charged with one count of robbery in separate informations filed in the district court for Lancaster County. The cases were then consolidated for trial. Stevens filed a motion to transfer his case to juvenile court. After conducting an evidentiary hearing on the motion, the district court found good cause to deny the transfer. After the DNA evidence implicating Dominguez was discovered, Stevens filed a motion requesting his trial be severed, but the motion was denied.
Yaunk testified and described the robbery. She identified Stevens and Dominguez in court as two of the perpetrators. Timothy Robinett, a Lincoln cabdriver, testified that the night of the robbery, he had been at a Walgreens store near the scene of the robbery and three young men had attempted to hire his cab. Over Stevens' objection, Robinett testified that he was 50- to 75-percent sure that Stevens was one of the young men. Robinett was unable to identify the others.
The State also called Dakota Grant, Stevens' brother. Grant was arrested on December 4, 2012, for the robbery, along with Stevens and Dominguez. He testified that before they were arrested, he was with Stevens and Dominguez and heard them talking, but did not hear what they were saying. He also testified that he did not remember talking to a police officer after he was arrested. After a court recess, Grant stated that on December 4, Stevens and Dominguez were looking at a newspaper Web site and reading and talking about an article describing the robbery and carjacking. The State asked Grant whether he had told the police that Stevens and Dominguez had been talking about the actual robbery, not the article, but Dominguez' objection to the question was sustained by the court.
Neal also testified at trial. He testified that he had come to Lincoln a few days before December 4, 2012, to meet up with Stevens and Dominguez. He testified that he was at the Walgreens store with Stevens and Dominguez the evening of December 3 and that they tried to get a cab, but that then they split up and went separate ways. Neal described how he committed the robbery of Yaunk and stated that the two persons with him at the time were not Stevens and Dominguez. He admitted that he was stealing the car in order to get to Dominguez' home, where he was staying, and he stated that he did not remember telling the police at the time of his arrest the names of the persons he was with during the robbery. Over objection, Neal was allowed to testify that he originally told the police that Dominguez was with him at the time of the robbery. Neal also testified that he used Stevens' name when talking to the police, but emphasized that he never said Stevens took part in the robbery.
After hearing all the evidence, the jury convicted both Stevens and Dominguez of robbery. Stevens was subsequently sentenced to 6 to 10 years' imprisonment, and he filed this timely appeal.
Stevens assigns, restated, that the district court erred in (1) denying his motion to transfer to juvenile court, (2) denying his motion to sever his trial, (3) allowing Robinett to make an in-court identification of him, (4) allowing the State to impeach Grant and Neal with their prior inconsistent statements, and (5) imposing an excessive sentence.
When Stevens moved to transfer his case to juvenile court, the district court conducted a hearing pursuant to Neb.Rev. Stat. § 29-1816(2)(a) (Cum. Supp. 2012). That statute provides the "customary rules of evidence shall not be followed at such hearing," and requires consideration of the 15 factors set forth in Neb.Rev.Stat. § 43-276 (Cum. Supp. 2012). In order to retain the proceedings, the court need not resolve every factor against the juvenile, and there are no weighted factors and no prescribed method by which more or less weight is assigned to a specific factor.
The burden of proving a sound basis for retention lies with the State.
Relying primarily on this summary, Buhr testified about Stevens' history in juvenile court, including his placements, his law violations, and services that had been provided to him. Summarized, the evidence showed that between 2010 and 2012, Stevens had been charged with or cited for four felonies, including the robbery at issue in this case. He had been placed at various facilities, including group homes, residential treatment facilities, and rehabilitation and treatment centers. He had a history of running away from his placements, including from secure facilities. And from 2010 to 2012, he had been provided psychological evaluations, substance abuse evaluations and treatment, individual therapy, electronic monitoring, and drug screening. Stevens did not call any witnesses at the hearing.
In its order denying Stevens' motion to transfer, the district court considered each of the factors listed in § 43-276 that were applicable. It noted that Stevens had been in various out-of-home placements since the September 2010, when he was 13 years old, as a result of juvenile court adjudications, and was "on runaway status from placement on parole through the Office of Juvenile Services" at the time of the charged offense. The court found that Stevens failed to take advantage of "many opportunities at a wide variety of treatment options" and that he had "a pattern of absconding from placements designed to provide needed treatment and engaging in conduct that places him and others at risk of harm." The court found that the
When a district court's basis for retaining jurisdiction over a juvenile is supported by appropriate evidence, it cannot be said that the court abused its discretion in refusing to transfer the case to juvenile court.
After originally agreeing to a joint trial, Stevens filed a motion to sever. The district court denied the motion, and Stevens argues on appeal that it erred in doing so.
There is no constitutional right to a separate trial.
According to § 29-2002(2), the court may order two or more informations to be tried together "if the defendants ... are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses." The court may order separate trials if "it appears that a defendant or the state would be prejudiced by a joinder of offenses ... for trial together."
A court should grant a severance only if there is a serious risk that a joint trial could compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.
To prevail on a severance argument, a defendant must show compelling, specific, and actual prejudice from the court's refusal to grant the motion to sever.
Here, there is no question that the two cases arose out of the same act or transaction and were thus joinable for trial. Stevens was therefore required to show that joinder was prejudicial in order to prevail on his motion to sever. He contends that prejudice existed because the State had DNA evidence linking Dominguez to the pellet gun used in the robbery. He essentially concedes that this evidence would have been admissible against him even had he had a separate trial, but argues it was nevertheless prejudicial because of the possibility that the jury would find the evidence against Dominguez so overwhelming that it would necessarily conclude Stevens must have participated in the robbery as well.
We reject this argument. This was not a complicated case. The jury was well aware that it was to decide whether one or both of the defendants, Dominguez and Stevens, participated in the robbery. The mere fact that DNA evidence linked Dominguez to the gun was not specific and actual prejudice to Stevens. The district court did not abuse its discretion in denying Stevens' motion to sever.
Robinett testified at trial that he was 50- to 75-percent certain that Stevens was one of the young men that attempted to hire his cab at a Walgreens store near the scene of the robbery on the night of the crime. Stevens objected to this testimony as not accurate and based on Neb. Rev.Stat. § 27-403 (Reissue 2008), but the district court overruled his objections. Stevens cross-examined Robinett about his identification testimony.
On appeal, Stevens does not contend the testimony was inadmissible pursuant to § 27-403. Instead, relying upon Manson v. Brathwaite,
The Manson factors, however, are not directly applicable to this case. The U.S. Supreme Court clarified in Perry v. New Hampshire
We recognized and applied this distinction in State v. Nolan.
Here, Stevens exercised his opportunity to challenge the reliability of Robinett's identification through the means articulated in Perry. And, notably, he does not argue anything on appeal other than the Manson reliability test. Because that test does not apply, the district court could not have erred in failing to apply it.
Stevens argues that the State was allowed to elicit improper impeachment evidence from witnesses Grant and Neal. As noted, both Grant and Neal were also arrested in connection with the robbery. The record is unclear as to whether Grant was ultimately charged. Neal, however, confessed and had been convicted prior to Stevens' trial.
The State called both Grant and Neal at trial. Grant testified that Stevens is his brother and that Grant was with Stevens and Dominguez on the morning after the robbery. Grant originally testified that during that time, he could hear Stevens and Dominguez talking, but was unable to hear what they were saying. He was then asked if he spoke to a police officer after he was arrested later that day, and he responded that he did not remember. The trial was then recessed for the day.
When Grant resumed his testimony on the following day, he stated that he heard Stevens and Dominguez talking and that they were looking at a newspaper Web site and discussing the carjacking/robbery. He recalled that they were talking about a news article reporting the crime, but not talking as if they committed the crime. Grant was then asked if, after his arrest, he told the police that Stevens and Dominguez had been talking about the actual crime. Dominguez' objection to that question was sustained.
Neal testified that he came to Lincoln from Omaha, Nebraska, on approximately December 2, 2012, to meet Stevens and Dominguez. The three had been close in the past, and he considered them as his brothers. He admitted that he was with Stevens and Dominguez at the Walgreens store near the scene of the crime and near the time of the crime and that they tried to get a cab there. He testified that Dominguez
Stevens argues on appeal that the district court erred in permitting the State to impeach Grant and Neal with prior inconsistent statements over objection. When the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court, an appellate court reviews the admissibility of evidence for an abuse of discretion.
One means of attacking the credibility of a witness is by showing inconsistency between his or her testimony at trial and what he or she said on previous occasions.
A party cannot impeach his or
One commentator refers to this as a "`no artifice'" rule.
More recently, we have said that "a party may not use a prior inconsistent statement of a witness under the guise of impeachment for the primary purpose of placing before the jury substantive evidence which is not otherwise admissible."
An exception to the common-law voucher rule prohibiting impeachment by a party of its own witness existed if the calling party could show surprise and affirmative damage to its case.
There is tension between our reference to the "affirmative damage" exception in the Brehmer and Marco cases and our statement in State v. Price,
The language of § 27-607 is similar to and patterned after rule 607 of the Federal Rules of Evidence.
This rule "focuses upon the content of the witness' testimony as a whole" so that "if the witness' testimony is important in establishing any fact of consequence significant in the context of the litigation, the witness may be impeached as to any other matter testified to by means of a prior inconsistent statement."
Because the State was not permitted to impeach Grant with a prior inconsistent statement, we focus our attention on the State's direct examination of Neal. Without any reference to his prior statement, Neal's testimony established facts of consequence to the prosecution. Specifically, his testimony established that Stevens and Dominguez were with him in the area where the robbery was committed, shortly before it occurred, and that they shared his motive for finding free transportation to Dominguez' home. Neal's testimony also corroborated Robinett's in-court identification of Stevens as one of the three individuals who attempted to hire his cab. This testimony, when considered together with Stevens' fingerprints found on Yaunk's vehicle and Dominguez' DNA found on the gun, provided at least circumstantial evidence that Stevens and Dominguez participated with Neal in committing the robbery.
Neal's testimony that the other two perpetrators of the robbery were not Stevens and Dominguez, but, rather, two persons whose names he did not know, created an obvious issue of credibility in his account of the crime. Reference to his prior statement implicating Stevens and Dominguez was a legitimate and proper means of impeachment. Because Neal provided key evidence useful to the prosecution independent of his prior statement linking Stevens and Dominguez to the robbery, we cannot conclude that the State called him as a witness for the primary purpose of placing his prior statement before the jury. We conclude that the district court did not abuse its discretion in permitting the State to impeach Neal, over objection, with his prior inconsistent statement.
Stevens was sentenced to 6 to 10 years' imprisonment for the robbery conviction. He argues the sentence imposed was excessive.
An appellate court will not disturb sentences that are within statutory limits, unless the district court abused its discretion
When imposing a sentence, the sentencing judge should consider the defendant's (1) age, (2) mentality, (3) education and experience, (4) social and cultural background, (5) past criminal record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7) the nature of the offense and (8) the violence involved in the commission of the offense.
Stevens does not argue that the district court failed to consider these factors. And a review of the record indicates the court did so. Instead, Stevens generally asserts that the sentence of imprisonment exceeds the minimum period consistent with the protection of the public, the gravity of the offense, and his rehabilitative needs.
The record reflects that Stevens has been involved in the juvenile system since he was 12 years old and that he has been in and out of foster homes and other care facilities. He has struggled with drugs and alcohol and has been sent to a youth rehabilitation and treatment center. At the same time, however, the record shows that he consistently refuses to follow rules, that he has escaped from the treatment center, and that he has been involved in at least three felonies since 2010. We conclude the district court did not abuse its discretion in sentencing Stevens to 6 to 10 years' imprisonment.
For the foregoing reasons, we affirm Stevens' conviction and sentence.
AFFIRMED.