State v. Collins

• Decision Date: 22 July 2011
• Docket Number: No. S–09–1151.,S–09–1151.
• Parties: STATE of Nebraska, appellee,v.Thunder COLLINS, appellant.
• Court: Nebraska Supreme Court

281 Neb. 927

799 N.W.2d 693

STATE of Nebraska, appellee,

v.Thunder COLLINS, appellant.

No. S–09–1151.

Supreme Court of Nebraska.

July 22, 2011.

Syllabus by the Court

1. Convictions: Evidence: Appeal and Error. Regardless of whether the evidence is direct, circumstantial, or a combination thereof, and regardless of whether the issue is labeled as a failure to direct a verdict, insufficiency of the evidence, or failure to prove a prima facie case, the standard is the same: In reviewing a criminal conviction, an appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence; such matters are for the finder of fact, and a conviction will be affirmed, in the absence of prejudicial error, if the evidence admitted at trial, viewed and construed most favorably to the State, is sufficient to support the conviction.

2. Rules of Evidence: Other Acts: Appeal and Error. It is within the discretion of the trial court to determine relevancy and admissibility of evidence of other wrongs or acts under Neb. Evid. R. 404(2), Neb.Rev.Stat. § 27–404(2) (Reissue 2008), and the trial court's decision will not be reversed absent an abuse of discretion.

3. Indictments and Informations. A trial court, in its discretion, may permit a criminal information to be amended at any time before verdict or findings if no additional or different offense is charged and the substantial rights of the defendant are not prejudiced.

4. Criminal Law: Motions for New Trial: Appeal and Error. In a criminal case, a motion for new trial is addressed to the discretion of the trial court, and unless an abuse of discretion is shown, the trial court's determination will not be disturbed.

5. Criminal Law: Evidence: Intent. When the sufficiency of the evidence as to criminal intent is questioned, independent evidence of specific intent is not required. Rather, the intent with which an act is committed is a mental process and may be inferred from the words and acts of the defendant and from the circumstances surrounding the incident.

6. Rules of Evidence: Other Acts. Neb. Evid. R. 404(2), Neb. Rev. Stat § 27–404(2) (Reissue 2008), provides that evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he or she acted in conformity therewith, but may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

7. Rules of Evidence: Other Acts. Neb Evid. R. 404(2), Neb.Rev.Stat. § 27–404(2) (Reissue 2008). prohibits the admission of other bad acts evidence for the purpose of demonstrating a person's propensity to act in a certain manner. But evidence of other crimes which is relevant for any purpose other than to show the actor's propensity is admissible under rule 404(2).

8. Evidence: Words and Phrases. Evidence that is offered for a proper purpose is often referred to as having a “special” or “independent” relevance, which means that its relevance does not depend upon its tendency to show propensity.

9. Rules of Evidence: Other Acts: Appeal and Error. An appellate court's analysis under Neb. Evid. R. 404(2), Neb.Rev.Stat. § 27–404(2) (Reissue 2008), considers (1) whether the evidence was relevant for some purpose other than to prove the character of a person to show that he or she acted in conformity therewith; (2) whether the probative value of the evidence is substantially outweighed by its potential for unfair prejudice; and (3) whether the trial court, if requested, instructed the jury to consider the evidence only for the limited purpose for which it was admitted.

10. Rules of Evidence: Other Acts. The proponent of evidence offered pursuant to Neb. Evid. R. 404(2), Neb.Rev.Stat. § 27–404(2) (Reissue 2008), shall, upon objection to its admissibility, be required to state on the record the specific purpose or purposes for which the evidence is being offered, and the trial court shall similarly state the purpose or purposes for which such evidence is received.

11. Evidence: Other Acts: Jury Instructions. Any limiting instruction given upon receipt of other crimes evidence should identify only those specific purposes for which the evidence was received.

12. Indictments and Informations. Objections to the form or content of an information should be raised by a motion to quash.

13. Motions for Continuance: Evidence. When a continuance will cure the prejudice caused by belated disclosure of evidence, a continuance should be requested by counsel and granted by the trial court.

14. Motions for New Trial: Evidence. Neb.Rev.Stat. § 29–2101(5) (Reissue 2008) provides that a new trial may be granted for newly discovered evidence material for the defendant which he or she could not with reasonable diligence have discovered and produced at the trial.

15. Criminal Law: Juries. Neb.Rev.Stat. § 29–2022 (Reissue 2008) provides that when a case is finally submitted to the jury, they must be kept together in some convenient place, under the charge of an officer, until they agree upon a verdict or are discharged by the court.

16. Trial: Waiver: Appeal and Error. Failure to make a timely objection waives the right to assert prejudicial error on appeal.

17. Appeal and Error. When an issue is raised for the first time in an appellate court, it will be disregarded inasmuch as a lower court cannot commit error in resolving an issue never presented and submitted to it for disposition.

18. Trial: Waiver: Appeal and Error. One may not waive an error, gamble on a favorable result, and, upon obtaining an unfavorable result, assert the previously waived error. For that reason, an issue not presented to or decided on by the trial court is not an appropriate issue for consideration on appeal.

Steve Lefler, of Lefler & Kuehl Law, for appellant.Jon Bruning, Attorney General, and Erin E. Tangeman for appellee.HEAVICAN, C.J., CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER–LERMAN, JJ., and CASSEL, Judge.PER CURIAM.

INTRODUCTION

Thunder Collins was convicted of first degree murder, attempted second degree murder, first degree assault, and two counts of use of a weapon to commit a felony. He was sentenced to a combined sentence of life plus at least 90 years' imprisonment. Collins appeals to this court pursuant to our statutory obligation to hear all appeals in which the sentence of life imprisonment is imposed.¹ We remand for further proceedings.

FACTUAL BACKGROUND

Early Summer 2008: Initial Visits to Nebraska to Deliver, Manufacture, and Distribute Crack Cocaine.

Collins met one of the victims in this case, Marshall “Flower” Turner, through Collins' brother. Turner was a drug dealer based in Los Angeles (LA), California, and on two occasions while in LA, Collins attempted to purchase marijuana from Turner. After meeting Collins, Turner and his cousin, Timothy “Twin” Thomas, became interested in the possibility of selling crack cocaine in Omaha, Nebraska. Turner contacted Collins, who, in turn, did some “research” into the market for crack cocaine in Omaha. At the time Turner contacted Collins, Turner could sell an ounce of crack cocaine for $400 in LA; Collins determined that the same ounce could sell for upward of $700 to $800 in Omaha. At this point, it was agreed that Turner and Thomas would come to Omaha with cocaine and have Collins sell it for them.

Thereafter, on two separate occasions in July 2008, Turner, Thomas, and their “worker,” Darryl Reed, traveled to Omaha from LA in vehicles purchased at automobile auctions. Those vehicles were registered in California using fake identification in the name of an alias belonging to Reed. This identification was also used to check into Omaha motels for the duration of their stays. The record is in dispute over Reed's compensation for his work. Turner indicated that Reed was paid a few hundred dollars and allowed all the crack cocaine he could smoke, while Reed indicated that he was paid anywhere from $1,000 to $3,000 per trip and that he was not a drug user. What is not in dispute is the fact that Reed was unaware of the location of the drugs within the vehicle and was not privy to any details regarding the trips to Omaha.

On their first trip, Turner, Thomas, and Reed arrived in Omaha on July 13, 2008. The three met Collins in the parking lot of a gas station located on 72d Street in Omaha. Collins had already procured a room for the three at a nearby motel. There is some dispute in the record as to why, but in any event, the three switched motels the next day and stayed at another motel for the remainder of their trip. Turner and Thomas needed a private place to remove the two packages of cocaine—weighing 1/2 kilogram and 4 1/2 ounces respectively—they had brought from LA, and Collins found such a location for them. On this trip, the cocaine packages were hidden in the outside rear wheel area of the passenger side of their sport utility vehicle.

The three men went to a local Wal–Mart to buy supplies for cooking the cocaine into crack cocaine. Over the course of the next week or so, Collins would stop by the motel at least once a day and Turner and Thomas would “front” him crack cocaine to sell. After selling the crack cocaine, Collins would return with Turner's and Thomas' share of the payment. On approximately July 20, 2008, Turner, Thomas, and Reed returned to LA, having made about $33,000 while in Omaha.

Upon reaching LA, the three procured another vehicle and more cocaine and again left for Omaha, this time arriving on July 25, 2008, in a minivan. The three checked into the former Baymont Inn on 72d Street. The drugs secreted in the vehicle were more accessible on this trip, and Turner and Thomas were able to retrieve the drugs while in the parking lot of the motel. This time, Turner and Thomas brought one package of cocaine weighing 27 ounces and another package weighing 4 1/2 ounces. Again supplies were...