State v. Cotton
| Decision Date | 20 April 2018 |
| Docket Number | No. S-17-196,S-17-196 |
| Citation | 910 N.W.2d 102,299 Neb. 650 |
| Parties | STATE of Nebraska, appellee, v. James COTTON, appellant. |
| Court | Nebraska Supreme Court |
Thomas C. Riley, Douglas County Public Defender, and Matthias J. Kraemer for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss, Lincoln, for appellee.
This is James Cotton’s direct appeal of his jury convictions and sentences for first degree murder, use of a deadly weapon to commit a felony, possession of a deadly weapon by a prohibited person, and possession of a controlled substance. Cotton filed a timely appeal, and he proceeds with different counsel than at trial. We affirm his convictions.
On August 7, 2015, Cotton shot and killed Trevor Bare. During the evening prior to the shooting, Bare saw Cotton in the apartment immediately above his own. Because Cotton and Bare had a negative history together, Bare confronted Cotton and an argument ensued. After the initial altercation, Bare and his girlfriend, McKayla Burnette, left the apartment house. A couple of hours later, someone set a fire in the back of the truck owned by Travis Labno, the new tenant of the apartment immediately above Bare’s.
Around 6:30 a.m. on August 7, 2015, Bare and Burnette returned to Bare’s apartment. Upon their return, Labno confronted Bare outside the house about the fire, while Cotton exited Labno’s apartment with a shotgun. After the argument between Labno and Bare ended, Cotton and Bare commenced an argument, which ended with Cotton’s shooting Bare. Bare died from his injuries.
At the crime scene, police found a broken piece of fence wood on the ground, a spent shotgun casing, and a bloodstain on the ground approximately 6 to 10 feet from the porch. They also recovered a sawed-off shotgun in the bushes behind a nearby house, which shotgun was later identified as the murder weapon.
A search warrant was obtained for Labno’s apartment. During the execution of the warrant, police discovered the following: in the bathroom, marijuana on top of the toilet, a bag in the toilet bowl, and a glass pipe in the sink; in the kitchen, a broken "meth pipe or crack pipe"; and, in the northwest bedroom closet, two envelopes with Cotton’s name on them, a medication bottle with Cotton’s name on it, an unlabeled medication bottle containing marijuana, a spoon, a syringe, and a tin that contained methamphetamine.
The cause of Bare’s death was determined to be a shotgun wound
to the abdomen. Autopsy results revealed that he had methamphetamine, amphetamine, and "THC" in his system. The autopsy also revealed the presence of fentanyl, which was administered to him after the shooting.
At trial, Burnette testified that she and Bare saw Cotton as they were leaving their apartment at approximately midnight on August 6, 2015. Burnette said Bare was angry about Cotton’s presence, so Bare approached Labno’s apartment and knocked on the door. Burnette stated that she waited about 10 minutes before approaching Labno’s apartment to see what was happening. When she did, she heard Bare say that "[t]his is my block" and that Cotton could not stay there. Burnette testified that she grabbed Bare and pushed him back toward their car and that as they were leaving, Cotton called Bare a "pussy."
Burnette stated that after leaving the apartment, they went to Bare’s mother’s house where they used marijuana and methamphetamine. At around 6:30 a.m., Bare and Burnette returned to Bare’s apartment. When they got there, they saw Labno run into his apartment. While in the apartment, Burnette said she could hear Cotton and Labno talking and recognized Cotton’s voice from the earlier argument. She stated that she heard Cotton say, " ‘I have a round in the gun and I'm going to use it.’ " Burnette told Bare what she heard just before she heard the sound of footsteps upstairs running outside, at which point, Bare went outside as well.
Burnette said that after hearing a "smack" outside, she went to the screen door to see what was happening. She testified that she saw Bare holding a piece of wood, Labno by the porch, and Cotton sitting in a chair on the porch behind Labno with a shotgun in his lap, which he was pointing at Bare. Burnette testified that Labno and Bare were arguing at first, but then the argument between them seemed to calm down. Burnette stated that Cotton then stood up and started arguing with Bare, who still had the piece of wood in his hand. She stated that Bare stepped toward Cotton and said, "[I]f you're going to hold the gun to me, then you better fucking shoot me," at which point, Cotton shot Bare.
Labno testified that on August 6, 2015, Cotton was helping him move into his new apartment and that Cotton was planning on staying with him for a while. According to Labno, Cotton woke him up during the night to tell him Bare and Burnette had set fire to his truck. After looking at the truck, Labno stated that he went back to bed. Cotton’s trial counsel, however, introduced Labno’s cell phone records, which showed that Labno’s cell phone made a number of calls around 4 a.m. from an area away from his apartment. Additionally, in a portion of Labno’s deposition testimony that was read into evidence, Labno invoked his right to remain silent in response to a question regarding whether he left his apartment and returned with a shotgun, after which the prosecutor said that "we'll talk about immunity as it relates to the gun."
Labno further testified that as he was getting ready for work the next morning, he saw Bare and Burnette pull into the driveway in two vehicles, blocking his vehicle in the driveway. Labno stated that he yelled out to Cotton that Bare was back and then went out to confront Bare, who had a board in his hand. Labno told Bare to drop the board so they could fight, but Bare refused. Labno testified that he heard a "clack" after his argument had deescalated and turned around to see Cotton holding a shotgun. He stated that Cotton and Bare began arguing at that point, from a distance of about 6 to 8 feet apart, and that the argument then escalated and Cotton shot Bare. Labno testified that their argument lasted about 5 minutes and that Bare was acting "totally crazy" and did not seem like he was going to back down. Labno testified that he was not watching the fight and was unsure if Bare advanced at Cotton, but he stated that Bare did not charge him. However, he did state that just before the shooting, Bare said something like, "If you pull a gun, you better use it...."
Cotton testified at trial and admitted that he shot Bare but claimed that he did so in self-defense. He alleged that Labno obtained the shotgun and brought it to the altercation with Bare. Cotton stated that he grabbed the shotgun only after Bare had hit him with a wooden board and was advancing at him again with the board.
Cotton also testified that Bare and Bare’s mother used to live with him. However, issues arose because Bare and his mother were stealing things from Cotton and Bare was causing problems in the neighborhood—yelling at children and flashing a gun in Cotton’s garage. Cotton evicted Bare and his mother, but Bare continued to drive through the neighborhood and would occasionally stop in front of Cotton’s house. Cotton eventually moved out of that residence and was staying in a hotel on August 6, 2015.
Cotton stated that he stayed at Labno’s apartment that night at Labno’s request. Cotton also testified that at 2:30 a.m., Bare was knocking on Labno’s door, and that when Cotton answered the door, he told Bare to leave. When Bare refused to leave, Cotton said he got Labno and then went back to the bedroom. Cotton heard Bare tell Labno "this is my block" and that Labno slammed the door in Bare’s face. Cotton and Labno testified that Bare threatened Labno and told him, "I'll be back, ask [Cotton] what I'll do," as he left with Burnette.
Around 4 a.m., he saw a bright light outside and saw Bare and Burnette lighting Labno’s truck on fire. Cotton testified that Labno was not at his apartment at that time, so he went outside and put out the fire himself. Further, he stated that when Labno returned, Labno called his friend, Jeff Faye, and then left and returned with a shotgun.
Cotton stated that later that morning while he was trying to sleep, Labno yelled out, "They're here." He said that Labno went and got the shotgun, "rack[ed] it," and said, "There’s one in the chamber" and tried to hand the gun to Cotton. Cotton said he refused to take the gun and told Labno to "take care of your business like a man." Labno said, "I'm going to get the son of a bitch for doing this" and went outside with the shotgun.
Cotton testified that Bare came to Labno’s front door and that a confrontation ensued. Cotton stated that he went outside and tried to leave but could not because his vehicle was blocked in. He heard Bare yelling at Labno, and when he got to the side of the house, Labno had the shotgun in his left hand and Bare was holding a board. He stated that as the argument escalated, Bare swung the board at him in a "karate chop" motion. Cotton said the board hit him in the hand, jamming one of his fingers and giving him a splinter. Cotton said that he tried to leave to remove the splinter but that Bare said, "You ain't going nowhere old mother-fucker, sit down in that chair or I'll split your head," at which point Labno pointed the shotgun at Bare and told him to back up.
Cotton stated that Bare was still in a rage after his argument with Labno ended and started yelling at Cotton about money that Bare thought Cotton owed him. He said that Bare came up toward the porch and told Cotton, "There’s a gun there, you punk mother-fucker, you better use it." Then Bare started coming toward Cotton, so he grabbed the gun and shot Bare. He said that he tried to hit Bare in the legs and was not "aiming to kill the kid."
Matthew Krisel, a friend of Bare, testified that after the...
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