State v. Devers
| Decision Date | 10 July 2020 |
| Docket Number | No. S-19-629.,S-19-629. |
| Citation | 306 Neb. 429,945 N.W.2d 470 |
| Parties | STATE of Nebraska, appellee, v. Jason D. DEVERS, appellant. |
| Court | Nebraska Supreme Court |
I. INTRODUCTION
Jason D. Devers appeals from convictions, pursuant to a jury verdict, for first degree felony murder and use of a firearm to commit a felony. We find no merit in his claims regarding the termination of a witness’ deposition, admission of controlled substance and firearm evidence, and sufficiency of the evidence to support his intentions to commit robbery and use a firearm. Further, he asserts 13 claims of ineffective assistance of trial counsel, but the three that we reach on direct appeal lack merit. We affirm.
II. BACKGROUND
In the early morning hours of January 6, 2018, Kyle LeFlore was shot and killed outside of Reign Lounge, a bar and nightclub in Omaha, Nebraska. Following an investigation, Devers was arrested. The State filed an information charging him with first degree felony murder,1 use of a deadly weapon to commit a felony,2 and possession of a deadly weapon by a prohibited person.3
Before delving into the proceedings, a brief summary of the surrounding events is necessary. In accordance with our standard of review, we synopsize them in the light most favorable to the State.
On the evening of January 5, 2018, Devers and Larry Goynes went to Reign Lounge. At some point during the evening, Devers told Goynes that he knew of a "lick" (target for robbery). Sometime past midnight, Devers and Goynes left and sat in Devers’ vehicle in the parking lot. Goynes received a message that LeFlore was leaving. Goynes got out of the vehicle, and Devers drove off. Goynes attempted to rob LeFlore, but LeFlore fought back.
Goynes shot LeFlore and stole his jewelry. Later that morning, LeFlore died. After shooting LeFlore, Goynes ran down the street to where Devers had moved his vehicle and got in. Following an investigation, law enforcement authorities suspected Devers and Goynes of the murder. During several searches pursuant to warrants, the authorities found a firearm linked to Devers and Goynes and found controlled substances and ammunition in Devers’ home.
1. PRETRIAL
(a) Motions in Limine
(i) Piya Milton's Deposition
Prior to trial, Devers moved to take the deposition of Piya Milton, a witness for the State. The district court granted the motion and ordered that it take place on August 9, 2018. It entered a similar order in a companion case pertaining to Latiba Lemon.
At the deposition, with Devers’ counsel present, Milton refused to answer questions, claiming that her life would be in danger if she did. The court was asked to intervene. After Milton informed the court of her belief, the court ordered the deposition to be discontinued and appointed counsel for Milton. The court stated that after Milton received counsel, Devers would be free to file another motion to take Milton's deposition. At that time, the State indicated that it would not object.
Instead of filing another motion to depose Milton, Devers filed a motion in limine asking the court to prohibit the State from calling Milton as a witness, based upon her refusal to cooperate at the deposition. The court's order overruling the motion recounted the events and reiterated that Devers was free to file an additional motion to take Milton's deposition. Devers did not do so.
(ii) Firearms and Controlled Substances
Devers filed a separate motion in limine to prohibit the introduction of several items of evidence, including "[a]ny evidence regarding firearms that were recovered and alleged to have been used in the homicide of ... Le[F]lore [and a]ny evidence regarding [controlled substances] that were recovered from [Devers’] residence on January 6, 2018, pursuant to search warrant."
The district court overruled the motion in limine regarding the evidence related to a firearm, stating that it "[could not] make a pretrial ruling on it because it'll depend on how the evidence comes in." The State argued that the evidence regarding controlled substances found in Devers’ home was relevant to corroborate the testimony of a jailhouse informant. Regarding the controlled substances, the court took the matter under advisement.
(b) Motion to Dismiss
Devers filed a pro se motion to dismiss, alleging a violation of his rights to a speedy trial under Neb. Rev. Stat. §§ 29-1207 and 29-1208 (Reissue 2016) and under the Sixth Amendment to the U.S. Constitution. The court overruled his motion. The court's order discussed the respective claims.
Regarding the statutory claim, the court calculated that Devers’ motion for discovery, motion to take Milton's deposition, and requested continuance resulted in 108 days of excludable time. This, the court explained, extended Devers’ trial date several months beyond the date on which he had filed his motion to dismiss. It noted that Devers’ motion for discovery alone, which excluded only 4 days, was sufficient to defeat his motion to dismiss.
As to the constitutional claim, the court applied the balancing test from State v. Johnson .4 It noted that Devers’ trial was scheduled to begin less than a year from the date of the offense. Devers’ counsel, the court explained, "has done anything any other criminal defense attorney would have done." It reasoned that "if Devers’ counsel was not allowed the time to properly prepare for trial, Devers, in the event he was convicted, would [argue] later in a postconviction motion that he did not receive the effective assistance of counsel." The court found that Devers had not shown unreasonable delay in bringing him to trial, or that he was prejudiced.
2. TRIAL
(a) Reign Lounge Events
We now summarize the evidence presented at trial regarding the events of January 5 and 6, 2018, relevant to the assignments of error asserted on appeal.
(i) Milton
Prior to discussing the incident, Milton testified that she had been diagnosed with bipolar depression
and, on the night of the incident, was on medication. We now summarize her testimony regarding the events that night.
On the evening of January 5, 2018, Milton drove herself and two friends to Reign Lounge. Around 10:15 p.m., they arrived. They left their jackets in Milton's vehicle, and she gave her car keys to one of her friends.
At about 1 o'clock the following morning, Milton had an altercation with another woman. A security guard "pick[ed] [her] up and took [her] out" of the club. The guard refused to allow Milton to retrieve her car keys. She was then outside for 15 to 20 minutes in below-zero temperatures without her jacket or keys.
While Milton was outside, she heard a man calling her name. The man got out of the passenger's seat of a maroon sport utility vehicle (SUV), walked toward her, asked if she remembered him, and said he knew her child's father. After Milton talked to the man, he invited her to warm up in his vehicle. Milton got into the vehicle and sat behind the passenger's seat. She described the vehicle as "a maroon truck" that was a smaller SUV than her vehicle.
Once in the maroon SUV, the man sat in the passenger's seat, and there was another man in the driver's seat. The man in the passenger's seat identified himself as "Ratchet." She described Ratchet as "heavyset, low cut, brown skin." Milton identified a picture of Goynes in evidence as depicting Ratchet. She described the driver as "a dark skin dude with a black coat on with braids, or dreads." She identified the driver as Devers.
After Goynes and Milton discussed why she had been kicked out of the club, he showed her a black gun. According to Milton, "[i]t was readily apparent that he was armed with a firearm" and "[h]e had it out the whole time." Around 1:55 a.m., Goynes received a call or text message; said, " ‘Right now, right now’ "; and jumped out of the maroon SUV. After Goynes jumped out, Devers drove away. At that point, Milton asked to leave the vehicle, and Devers said, " ‘You can't go out right now.’ " Devers drove for a while and then parked by "a whole bunch of trees."
Devers and Milton remained parked for about 20 minutes. While they were parked, Devers identified himself as " ‘Little Pockets.’ " Milton asked to be returned to Reign Lounge, and Devers stated, " ‘We can't go over there right now.’ " After another 10 minutes, Milton saw Goynes running to the maroon SUV.
Once Goynes was in the vehicle, Devers asked, " ‘What did you get?’ " Goynes responded, " ‘He really didn't have nothing.’ " Milton testified that "[Goynes] said that [LeFlore] wouldn't give up nothing so [Goynes] had to shoot him." Devers asked, " ‘You didn't get nothing?’ " In response, Goynes held up "these little chains," and Devers asked, " ‘Can I get one?’ " Devers took one of the chains and put it around his neck. Milton stated that she did not know which chain Devers took but that she knew one chain had a cross on it.
Devers then drove off, and Milton asked to be taken back to Reign Lounge. Devers responded, " ‘No. I can't go over there.’ " Devers drove them to Lemon's home and told Goynes to "go in there and hide something, take his clothes off and go take a bath, or something like that." Devers further told Goynes, " ‘I'll get rid of something for you,’ " but Milton was unsure what it was. Goynes got out of the vehicle and did not come back.
Devers then drove Milton back to Reign Lounge. While he dropped her off, she put his cell phone number in her own cell phone under the name "Pockets." Due to police presence, Milton was unable to retrieve her vehicle. Milton called Devers, and he picked up Milton and her friends. After Devers dropped off Milton's friends at home, he drove Milton to his home to sell her marijuana and then drove her home.
Several days after the incident, Milton communicated with a family member of LeFlore's. LeFlore's family recorded the conversation. Five days after the events, a homicide detective interviewed Milton. Milton signed a consent form allowing the police to search her cell phone.
(ii) Marvin Stockdale
Marvin Stockdale, a...
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