State v. Allen
| Decision Date | 16 November 2018 |
| Docket Number | No. S-17-771.,S-17-771. |
| Citation | 301 Neb. 560,919 N.W.2d 500 |
| Parties | STATE of Nebraska, Appellee, v. Kevin ALLEN, Appellant. |
| Court | Nebraska Supreme Court |
Kevin Allen, pro se.
Douglas J. Peterson, Attorney General, and Kimberly A. Klein, Lincoln, for appellee.
Funke, J.Kevin Allen appeals from the denial of postconviction relief without an evidentiary hearing. Allen asserts that he was denied a fair trial, that he was prejudiced by ineffective assistance of counsel at trial and on direct appeal, and that he was entitled to a hearing based on newly discovered evidence. We determine that Allen’s postconviction motion fails to state a claim for relief. Thus, we affirm the district court’s denial of postconviction relief without an evidentiary hearing.
This appeal follows our decision on Allen’s direct appeal in State v. Allen ,1 which affirmed Allen’s jury trial convictions of first degree murder and use of a firearm to commit a felony in the shooting of an Omaha, Nebraska, police officer, James B. "Jimmy" Wilson, Jr. The district court for Douglas County sentenced Allen to life imprisonment on the murder conviction and 18 to 20 years’ imprisonment on the use of a firearm to commit a felony conviction, to be served consecutively. We determined that all of Allen’s assigned errors on direct appeal were without merit. As we will discuss, Allen’s motion for postconviction relief raises many of the same issues addressed on direct appeal.
On August 20, 1995, at 8 p.m., Wilson radioed for a license plate check on a brown Chevrolet van and was informed that the plate was expired and was assigned to a blue Mazda. Wilson radioed that he would stop the van and began to radio the location of the stop but never completed his communication. Police officers in the area reported hearing multiple gunshots. Officers responded to an "officer needs assistance" call and discovered Wilson’s police cruiser at 40th and Blondo Streets. The cruiser had been hit by 11 rounds of gunfire. Wilson was shot four times; three times in the head. He was found deceased with his seatbelt still on and the radio microphone still in his hand.
At the time, Allen was a member of the "South Family Bloods" gang and had the street nickname "Dumb." On August 20, 1995, members of the gang, including Allen, were driving around Omaha in a brown and tan Chevrolet van. Allen was driving the van earlier in the afternoon and stopped at a convenience store to purchase gasoline. Dion Harris later replaced Allen as the driver and drove for the remainder of the day.
Harris drove to his mother’s house, and Tavias Minor went inside and returned with a bag containing a rifle with a banana-shaped ammunition clip. The group then headed to North Omaha and stopped for gas at another convenience store at approximately 7:35 p.m. When they left the store, Harris was sitting in the driver’s seat, Ronney Perry was sitting in the passenger’s seat, Minor was seated behind the driver, and Allen was seated in the back next to the sliding door.
Shortly thereafter, Wilson activated his police cruiser’s over-head lights and pulled over the van. Three eyewitnesses—LaKeisha Lucas, LaTasha Lucas, and Stephanie Bean—told police that they saw one gunman exit the van through the sliding door and shoot Wilson. The murder weapon was never recovered, but police determined that the weapon that killed Wilson was a semiautomatic rifle. Witnesses provided inconsistent renditions of the facts during the postshooting investigation, which we summarize below as relevant to Allen’s postconviction appeal.
Police tracked the van to a housing community in South Omaha and conducted door-to-door interviews and searches. Otis Simmons, Perry, Harris, Minor, and the owner of the van were contacted by the police and taken to the police station for additional questioning. Simmons initially stated that he was at the movies at the time of the shooting, but then stated that he, Perry, Harris, Minor, Allen, and Quincy Hughes all participated in the shooting and that Allen was the shooter. Perry stated that Simmons, Harris, and Minor were at the scene, that Hughes and Allen jumped out of the van, and that Allen was the shooter.
Police executed a search warrant on Hughes’ home and arrested Hughes and seized some rap lyrics he had written. Hughes provided a detailed alibi. Eyewitnesses Bean, LaKeisha Lucas, and Tyran McCleton identified Hughes out of a lineup as the shooter. LaTasha Lucas stated that Hughes closely resembled the shooter. Simmons and Perry changed their stories and claimed that Hughes was the shooter, not Allen. Prosecutors outlined this evidence at a preliminary hearing to establish probable cause that Hughes was the shooter.
Two months later, Simmons and Perry both recanted their statements that Hughes was the shooter after being given polygraph examinations. The results indicated that Simmons and Perry were deceptive when they denied that Hughes was the shooter. Simmons went back to his original statement that he was at the movies. Perry reverted to his earlier statement that Allen was the shooter. The State reopened the investigation and conducted further interviews of alibi witnesses. In exchange for time served, Minor agreed to testify that Allen shot Wilson and that Simmons and Hughes were not at the scene. Minor sat for a deposition conducted by Allen’s counsel.
The State dismissed charges against Hughes without prejudice and filed charges against Allen. At trial, Perry testified that Allen was the shooter. The following exchange occurred during direct examination of Perry:
The State supported its theory that Allen was the shooter by offering Minor’s deposition testimony. Security photographs were offered to show that Allen purchased gasoline at the first convenience store. The police laboratory identified nine latent fingerprints from Allen around the driver’s seat and near the rear passenger seat next to the sliding door. No fingerprints from Hughes were found in the van.
Allen’s theory of defense was that he was innocent and that Hughes was the shooter. The defense focused on the inconsistent accounts given by Simmons and Perry, the fact that the State initially charged Hughes, and the fact that Bean and McCleton testified that Hughes was the shooter. In rebuttal, the State provided testimony in support of Hughes’ alibi. After the close of evidence, and following arguments and deliberations, the jury convicted Allen on both counts.
On direct appeal, Allen assigned, restated, that the district court erred in (1) refusing to instruct the jury that it could not speculate as to what potential alibi witnesses for Simmons and Hughes, who were identified but not called, might have said had they testified; (2) refusing to instruct the jury that the charges against Hughes had been dismissed without prejudice and that the State could have refiled charges against Hughes; (3) allowing the State to read into evidence Minor’s deposition testimony after he asserted his Fifth Amendment rights part way through his live testimony; (4) excluding from evidence four of the five offered exhibits that contained rap lyrics written by Hughes and refusing Allen’s requested jury instruction that a felon (Hughes) in possession of a gun with a barrel less than 18 inches in length is guilty of a Class IV felony; (5) prohibiting inquiry into the fact that Simmons and Perry failed polygraph examinations when they denied Hughes was the shooter; (6) excluding from evidence the information filed against Hughes and the State’s position at the preliminary hearing that Hughes shot Wilson; (7) denying Allen’s motions that would have allowed for African-American jurors to be selected; (8) applying the rule that minorities can be preemptorially challenged as long as a race-neutral reason for the challenge can be articulated; and (9) permitting the preemptory challenge of juror No. 43, an African-American.
We found no merit to any of Allen’s assigned errors. We found no merit to Allen’s first assignment of error, because, contrary to Allen’s assertion, the court instructed the jury to not speculate as to what the testimony of witnesses who were not called would have been. We found no merit to Allen’s second assignment of error, because even though the State did not believe that Hughes shot Wilson after reexamining Hughes’ alibi, the State never suggested to the jury that charges against Hughes could not be refiled, and Allen was free to argue that the charges against Hughes could be refiled if additional evidence pointed to Hughes.
Regarding Allen’s third assignment of error, we found that Minor’s out-of-court deposition testimony was admissible without violating the Confrontation Clause, because the testimony was properly admitted under Neb. Evid. R. 804(2)(a), Neb. Rev. Stat. § 27-804(2)(a) (Reissue 1995), a firmly rooted hearsay exception. As an issue of first impression, we concluded that rule 804(2)(a) controlled over Neb. Rev. Stat. § 29-1917(4) (Reissue 1995) regarding the use of a deposition when the deponent is unavailable as a witness at trial. We found that the requirements of rule 804(2)(a) were met, because Minor’s deposition was taken by Allen’s counsel in compliance with Nebraska law and in the course of the same criminal proceeding in which it was offered and because Allen’s counsel had an opportunity to develop Minor’s testimony with a similar interest or motive on matters related...
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