State Of Neb. v. Thorpe
| Citation | 280 Neb. 11,783 N.W.2d 749 |
| Decision Date | 18 June 2010 |
| Docket Number | No. S-09-442.,S-09-442. |
| Parties | STATE of Nebraska, appellee,v.Terrell T. THORPE, appellant. |
| Court | Supreme Court of Nebraska |
COPYRIGHT MATERIAL OMITTED
COPYRIGHT MATERIAL OMITTED
Syllabus by the Court
1. Juries: Discrimination: Prosecuting Attorneys: Proof. The evaluation of whether a party has used peremptory challenges in a racially discriminatory manner is a three-step process. First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor has exercised peremptory challenges because of race. Second, if the requisite showing has been made, the burden shifts to the prosecutor to present a race-neutral explanation for striking the juror in question. Third, the trial court must then determine whether the defendant has carried his or her burden of proving purposeful discrimination. The third step involves evaluating the persuasiveness of the justification proffered by the prosecutor, but the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.
2. Juries: Discrimination: Proof: Appeal and Error. For challenges under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), an appellate court reviews de novo the facial validity of an attorney's race-neutral explanation for using a peremptory challenge as a question of law. And it reviews for clear error a trial court's factual determinations whether an attorney's race-neutral explanation is persuasive and whether his or her use of a peremptory challenge was purposefully discriminatory.
3. Juries: Discrimination: Prosecuting Attorneys: Proof. Although the prosecutor must present a comprehensible reason for a peremptory challenge, the second step of the analysis under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), does not demand an explanation that is persuasive, or even plausible; so long as the reason is not inherently discriminatory, it suffices.
4. Juries: Discrimination: Prosecuting Attorneys: Proof. In determining whether a defendant has established purposeful discrimination in the use of a peremptory challenge, a trial court may consider whether the prosecutor's criterion has a disproportionate impact on a particular race. If so, the court may consider whether such evidence shows the prosecutor's proffered explanation was pretextual.
5. Juries: Discrimination: Proof. In determining whether there is a sufficient pattern of peremptory strikes to support an inference of discrimination, the following factors are relevant: (1) whether members of the relevant racial or ethnic group served unchallenged on the jury and whether the striking party struck as many of the relevant racial or ethnic group from the venire as it could; (2) whether there is a substantial disparity between the percentage of a particular race or ethnicity struck and the percentage of its representation in the venire; and (3) whether there is a substantial disparity between the percentage of a particular race or ethnicity struck and the percentage of its representation on the jury.
6. Motions for Mistrial: Appeal and Error. An appellate court will not disturb a trial court's decision whether to grant a motion for mistrial unless the court has abused its discretion.
7. Judgments: Words and Phrases. An abuse of discretion occurs when a trial court's decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence.
8. Criminal Law: Jury Misconduct: Proof. A criminal defendant claiming jury misconduct bears the burden of proving, by a preponderance of the evidence, (1) the existence of jury misconduct and (2) that such misconduct was prejudicial to the extent that the defendant was denied a fair trial.
9. Criminal Law: Juror Misconduct: Presumptions: Proof. In a criminal case, misconduct involving an improper communication between a nonjuror and a juror gives rise to a rebuttable presumption of prejudice which the State has the burden to overcome.
10. Jury Misconduct: Proof. Extraneous material or information considered by a jury can be prejudicial without proof of actual prejudice if (1) the material or information relates to an issue submitted to the jury and (2) there is a reasonable possibility that it affected the verdict to the challenger's prejudice.
11. Jury Misconduct. Whether prejudice resulted from jury misconduct must be resolved by the trial court's drawing reasonable inferences as to the effect of the extraneous information on an average juror.
12. Juror Misconduct. Whether a defendant was prejudiced by juror misconduct involves legal conclusions about a defendant's right to an impartial jury and thus presents a mixed question of law and fact.
13. Motions for Mistrial: Juror Misconduct: Appeal and Error. When a defendant moves for a mistrial based on juror misconduct, an appellate court will review the trial court's determinations of witness credibility and historical fact for clear error and review de novo its ultimate determination whether the defendant was prejudiced by juror misconduct.
14. Jury Instructions. Whether a jury instruction is correct is a question of law.
15. Judgments: Appeal and Error. When reviewing questions of law, an appellate court resolves the questions independently of the lower court's conclusions.
16. Criminal Law: Witnesses. Evidence of a defendant's attempted intimidation or intimidation of a State's witness is relevant evidence of the defendant's “conscious guilt” that a crime has been committed. Also, it can serve as a basis for an inference that the defendant is guilty of the crime charged.
17. Appeal and Error. Plain error will be noted only where an error is evident from the record, prejudicially affects a substantial right of a litigant, and is of such a nature that to leave it uncorrected would cause a miscarriage of justice or result in damage to the integrity, reputation, and fairness of the judicial process.
Andrew J. Wilson, of Walentine, O'Toole, McQuillan & Gordon, Omaha, for appellant.
Jon Bruning, Attorney General, and George R. Love for appellee.
After a jury trial, the State convicted Terrell T. Thorpe of two counts of first degree murder and two counts of use of a weapon to commit a felony. The court sentenced him to life imprisonment without parole on each of the murder counts and to 30 to 40 years' imprisonment and 40 to 50 years' imprisonment on the use of a weapon counts. He appeals his convictions and sentences. We affirm his convictions on the murder charges and the convictions and sentences on the weapons charges. But we conclude that the life without parole sentences are invalid. We vacate the life without parole sentences and remand to the district court to sentence Thorpe to life sentences.
Thorpe assigns three errors: (1) The court erred in failing to find that the State's use of a peremptory challenge to exclude juror No. 31 violated his right to equal protection; (2) the court erred in overruling his motion for mistrial based on the improper contact between a witness and a juror; and (3) the court erred in giving instruction No. 14 regarding conscious guilt.
The underlying facts are substantially similar to those addressed by this court in State v. Sellers,1 which addressed an accomplice's appeal. Summarized, the facts are that on two separate occasions, Taiana Matheny lured a young male to a remote location, and then Terry Sellers and Thorpe beat, robbed, and murdered him. Thorpe's appeal focuses on three events that occurred during his trial, and so we will set out additional facts to separately address these issues.
Thorpe argues that the State exercised a peremptory challenge to remove juror No. 31 solely because of her race. The Equal Protection Clause of the 14th Amendment forbids prosecutors from using peremptory challenges for this reason.2
During voir dire, the prosecutor asked, “[I]f the State proves beyond a reasonable doubt that ... Thorpe is guilty of these charges, is there anyone here that would not be able to vote guilty?” Juror No. 31 answered:
Just with the evidence that they're saying, I still would have a problem. ' Cause how do I know it's real, you know? ... And if he's saying he didn't do it, how do I even know he's telling the truth? But I wouldn't just say, oh, yeah, he did it, you know.
The prosecutor then explained that the jurors were to decide whether, based upon what they saw and heard in the court-room, the State had proved guilt beyond a reasonable doubt. Juror No. 31 responded:
When the prosecutor explained that a “beyond a reasonable doubt” standard was the standard applied in every criminal case in America, juror No. 31 interrupted:
When the prosecutor responded that “[i]t sounds to me like what you're saying is...
To continue reading
Request your trial
-
State v. Iromuanya
...1, 689 N.W.2d 852 (2004). 44. See State v. Robinson, 272 Neb. 582, 724 N.W.2d 35 (2006), abrogated on other grounds, State v. Thorpe, 280 Neb. 11, 783 N.W.2d 749 (2010). 45. See id. 46. See, Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974); U.S. v. Reid, 625 F.3......
-
State Of Neb. v. Sandoval
...largely on the facts of each case. State v. Robinson, 272 Neb. 582, 724 N.W.2d 35 (2006), abrogated on other grounds, State v. Thorpe, 280 Neb. 11, 783 N.W.2d 749 (2010). An appellate court reviews a motion for new trial on the basis of prosecutorial misconduct for an abuse of discretion of......
-
State v. Ellis
...note 7. FN11. Id. FN12. State v. Gutierrez, 272 Neb. 995, 726 N.W.2d 542 (2007), abrogated in part on other grounds, State v. Thorpe, 280 Neb. 11, 783 N.W.2d 749 (2010). FN13. State v. Goynes, 278 Neb. 230, 768 N.W.2d 458 (2009). 14. See State v. Daly, 278 Neb. 903, 775 N.W.2d 47 (2009). FN......
-
State v. Edwards
...omitted] ), cert. denied sub nom. Rice v. Michigan, 546 U.S. 1043, 126 S.Ct. 759, 163 L.Ed.2d 590 (2005) ; State v. Thorpe, 280 Neb. 11, 17, 783 N.W.2d 749 (2010) ( “[f]or Batson challenges, we will review de novo the facial validity of an attorney's race-neutral explanation for using a per......
-
ICEBERG AHEAD: WHY COURTS SHOULD PRESUME BIAS IN CASES OF EXTRANEOUS JUROR CONTACTS.
...94 ("A rebuttable presumption of prejudice exists when jury misconduct stems from extraneous influence...."). (295.) State v. Thorpe, 783 N.W.2d 749, 759 (Neb. 2010) (applying a nominal "presumption" after requiring a defendant to "prov[e], by a preponderance of the evidence, (1) the existe......