State v. Barfield
| Decision Date | 03 November 2006 |
| Docket Number | No. S-05-973.,S-05-973. |
| Citation | 272 Neb. 502,723 N.W.2d 303 |
| Parties | STATE of Nebraska, appellee, v. Terry A. BARFIELD, appellant. |
| Court | Nebraska Supreme Court |
Glenn A. Shapiro, Omaha, and Jill A. Daley, of Gallup & Schaefer, for appellant.
Jon Bruning, Attorney General, and Kimberly A. Klein for appellee.
On September 6, 2003, Terrill Williams, the victim, died of a single gunshot wound. He was shot at a location referred to by witnesses as "the projects" in Douglas County, Nebraska, by Clinton Lamar Barfield (Clinton). The defendant, Terry A. Barfield, Clinton's uncle, was charged with felony murder as an aider and abettor of the attempted robbery of the victim. He was also charged with use of a deadly weapon to commit a felony, possession of a deadly weapon by a felon, and being a habitual criminal.
After a trial by jury, the defendant was found guilty of felony murder, use of a deadly weapon to commit a felony, and possession of a deadly weapon by a felon. After the court's denial of the defendant's motion for new trial, the defendant was sentenced to life imprisonment for the felony murder and, pursuant to the habitual criminal statute, to 25 years' imprisonment for each of the other two counts, all sentences to run consecutively. The defendant timely appealed. The defendant argues that the evidence was insufficient to support his convictions, that the defendant was prejudiced by the trial court's refusal to declare a witness unavailable and allow into evidence her deposition testimony, that the defendant was prejudiced by the trial court's failure to include an instruction to the jury regarding the reliability of jailhouse informants, and that various remarks by the prosecutor during closing arguments, although not objected to at trial, constituted plain error.
We conclude that the misconduct of the prosecutor during argument to the jury would, if uncorrected, result in damage to the integrity, reputation, and fairness of the judicial process. Accordingly, we find plain error in the prosecutor's conduct and reverse the convictions. We consider the sufficiency of the evidence in order to determine whether double jeopardy bars a new trial. We ultimately conclude that the evidence was sufficient and remand the cause for a new trial.
The State's theory of the case against the defendant was that Clinton and the defendant were drug dealers in the projects and that they were upset with the victim for taking away some of their business. The victim was not from the projects, but often stayed there with his girl friend who lived in the apartment where the shooting occurred. Under the "unwritten rules" of the projects, if one was not from the projects, then one needed special permission from someone like the defendant in order to sell drugs to project residents.
Late in the evening of September 5, 2003, Clinton and two friends, Dontavious Valentine and "Dreds," went to confront the victim. According to Clinton's testimony, they had only heard that the victim was dealing in the projects and they went to settle the issue and serve an "eviction notice" if, in fact, the victim was selling drugs. The evidence is unclear as to the defendant's involvement in planning the confrontation of the victim, but it is undisputed that at some point after Clinton, Valentine, and Dreds began their confrontation of the victim at the apartment, the defendant joined them.
Prosecution witness Gayla McSpadden witnessed the confrontation from outside the apartment, while witnesses Michael Rafael Hill (Rafael) and Kevin F. McIntyre were inside the apartment when Valentine knocked on the door and called the victim outside. The confrontation ultimately developed into Clinton's threatening the victim with a gun and demanding a "pocket check." McSpadden, Valentine, and Clinton testified that Clinton obtained the gun from the defendant, who handed it to Clinton either immediately prior or subsequent to his demands for a "pocket check." According to Valentine, when the defendant handed Clinton the gun, the defendant told Clinton to "handle his business." Rafael did not see the moment when Clinton obtained the gun, but testified that the gun he saw Clinton use to threaten the victim belonged to the defendant. Rafael had seen the gun some days before, when the defendant was talking about how he had bought it to pass out "eviction notices."
According to Clinton, the "pocket check" was to see if the victim had any drugs on him. Clinton claimed he was not trying to rob the victim, but only trying to discover whether the victim was selling drugs. Clinton admitted, however, that if the victim had turned any drugs out of his pockets, then Clinton would have taken the drugs and either "stomp[ed]" them or let "a crackhead lady" smoke it all in front of the victim. McSpadden explained that a "pocket check" meant generally to "[g]ive up" what one had.
Valentine described Clinton as demanding that the victim "`[G]ive it up, or I [will] kill you.'" Rafael testified that Clinton was "robbing" the victim, and he described how the victim told Clinton and the defendant, " " The defendant responded to the victim, " " According to Rafael, as Clinton was demanding the "pocket check," the defendant was telling Clinton to "`do what you got to do'" and was saying that this was an "eviction notice" and that they were tired of "`mother fuckers being down in their neighborhood.'"
When the victim refused the "pocket check," Clinton fired the gun into the ground. At that point, McSpadden yelled "one time," which meant that the police were coming. Everyone started to run away, and the victim tried to retreat to the apartment. According to the testimony of Valentine, Clinton, and Rafael, the defendant checked and saw that the police were not really coming and called Clinton and the others back. According to Rafael, the defendant announced, "`The mother fuckin' police ain't coming. Come back here and do what you came here to do. Finish the shit off.'"
The victim did not quite get the door of the apartment closed, and there was some dispute among the prosecution witnesses whether the defendant forced the door open, insisted that the occupants not shut the door on him, or merely knocked. It is clear, however, that Clinton entered the apartment and continued the confrontation with the victim. The defendant either entered the apartment or remained nearby in the doorway or on the front stoop.
Clinton again began demanding a "pocket check." The witnesses described that the defendant was encouraging Clinton and again told Clinton to "handle his business." According to Valentine, the defendant was "boosting up [Clinton's] ego because everybody hear Clinton tell [the victim] he don't want to do it to [the victim]." Clinton described that when the victim had "his back up against the wall," saying, "[m]an, this ain't for us,'" Valentine and the defendant were telling Clinton to "`forget what he's talking about, man, handle that.'" Clinton testified that he understood the defendant to be telling him that "[i]f you don't come off something, take some type of action," meaning to shoot the victim.
When the victim heard the defendant's remark, the victim grabbed for the pistol, and Clinton described that "it just went off." Other witnesses described a scuffle culminating in Clinton's getting the victim into a headlock and shooting him. The victim stumbled out the front door and fell to the ground. According to Clinton, the defendant took back the gun and they all fled. The evidence from the scene of the crime showed that the victim had approximately $188 in cash, gold chains, and numerous business cards and telephone numbers in his pockets.
The defense's theory of the case was that the defendant was not there when the shooting of the victim took place or that, if there, the defendant was an innocent bystander to the crime. Defense witnesses Marquita Michelle Johnson and Mark Terry Eugene Harrison Morris (Harrison) testified that on the night in question, they were sitting outside on the front stoop of a residence a few doors down from the apartment where the shooting occurred. They saw Clinton, Valentine, and Dreds walk toward the apartment and testified that Clinton already had a gun when he walked by. According to Harrison and Johnson, the defendant did not arrive at the apartment until it was "already too late" and the victim had been shot. According to Johnson, when the defendant arrived and saw that the victim was shot, he said, "`oh, shit, fuck, man.'"
The defense also called Marquita Russell, who was inside the apartment the night the victim was killed. Russell testified that she first saw the defendant when the victim stepped outside after Valentine knocked on the door. The defense pointed out that in statements she had made to the police, Russell said she "`could have swore [Clinton] pulled [the gun] from his self,'" and did not get it from the defendant. However, at trial, Russell testified that she actually had not seen how Clinton had gotten the gun. Russell testified that she did not hear the defendant say anything to Clinton during his confrontation with the victim.
Two themes ran through the State's closing argument. First, the prosecutor described the defendant as a ruler and bully of everyone in the projects. Second, he emphasized the courage of the witnesses who testified against the defendant, stating, "Do you have any idea the courage that it takes to come in here and testify against [the defendant]?"
The State then used vivid...
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