State v. Dominguez
| Decision Date | 27 March 2015 |
| Docket Number | No. S–14–047,S–14–047 |
| Parties | State of Nebraska, appellee, v. Alfredo V. Dominguez, appellant. |
| Court | Nebraska Supreme Court |
Dennis R. Keefe, Lancaster County Public Defender, Jennifer M. Houlden, and Keenan Gallagher, Senior Certified Law Student, for appellant.
Jon Bruning, Attorney General, and Austin N. Relph for appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack, Miller–Lerman, and Cassel, JJ.
Syllabus by the Court
1. Courts: Juvenile Courts: Jurisdiction.In determining whether a case should be transferred to juvenile court, a court should consider those factors set forth in Neb.Rev.Stat. § 43–276 (Cum.Supp.2012). In order to retain the proceedings, the court need not resolve every factor against the juvenile, and there are no weighted factors and no prescribed method by which more or less weight is assigned to a specific factor. It is a balancing test by which public protection and societal security are weighed against the practical and nonproblematical rehabilitation of the juvenile.
2. Courts: Juvenile Courts: Jurisdiction: Evidence.When a district court's basis for retaining jurisdiction over a juvenile is supported by appropriate evidence, it cannot be said that the court abused its discretion in refusing to transfer the case to juvenile court.
3. Trial: Joinder.There is no constitutional right to a separate trial. Instead, the right is statutory and depends upon a showing that prejudice will result from a joint trial.
4. Trial: Joinder: Proof: Appeal and Error.The burden is on the party challenging a joint trial to demonstrate how and in what manner he or she was prejudiced.
5. Trial: Joinder: Appeal and Error.A trial court's ruling on a motion for consolidation of prosecutions properly joinable will not be disturbed on appeal absent an abuse of discretion.
6. Trial: Joinder: Indictments and Informations.The propriety of a joint trial involves two questions: whether the consolidation is proper because the defendants could have been joined in the same indictment or information, and whether there was a right to severance because the defendants or the State would be prejudiced by an otherwise proper consolidation of the prosecutions for trial.
7. Trial: Joinder: Jurisdiction.A court should grant a severance only if there is a serious risk that a joint trial could compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence. Prejudice serious enough to meet this standard may occur when evidence that the jury should not consider against a defendant and that would not be admissible against a defendant if a defendant were tried alone is admitted against a codefendant, when many defendants are tried together in a complex case and they have markedly different degrees of culpability, when essential exculpatory evidence that would be available to a defendant tried alone would be unavailable in a joint trial, or in other situations.
8. Trial: Joinder: Proof.To prevail on a severance argument, a defendant must show compelling, specific, and actual prejudice from the court's refusal to grant the motion to sever.
9. Pleadings: Parties: Judgments: Appeal and Error.On appeal, a denial of a motion to sever will not be reversed unless clear prejudice and an abuse of discretion are shown.
10. Rules of Evidence: Appeal and Error.When the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court, an appellate court reviews the admissibility of evidence for an abuse of discretion.
11. Witnesses: Impeachment.Generally, the credibility of a witness may be attacked by any party, including the party who called the witness.
12. Witnesses: Impeachment.One means of attacking the credibility of a witness is by showing inconsistency between his or her testimony at trial and what he or she said on previous occasions. The trial court has considerable discretion in determining whether testimony is inconsistent with prior statements.
13. Witnesses: Impeachment.As a general rule, a witness makes an inconsistent or contradictory statement if he or she refuses to either deny or affirm that he or she did, or if he or she answers that he or she does not remember whether or not he or she made it.
14. Evidence: Hearsay.It is elementary that out-of-court statements offered to prove the truth of the matter asserted are hearsay. Thus, prior extrajudicial statements of a witness may be received into evidence for the purpose of assisting the jury in ascertaining the credibility of the witness, but unless they are otherwise admissible, they may not be considered as substantive evidence of the facts declared in the statements.
15. Witnesses: Impeachment.A party cannot impeach his or her own witness without limitation.
16. Witnesses: Impeachment: Prior Statements: Juries.The rule permitting a party to impeach his or her own witness may not be used as an artifice by which inadmissible matter may be gotten to the jury through the device of offering a witness whose testimony is or should be known to be adverse in order, under the name of impeachment, to get before the jury for its consideration a favorable ex parte statement the witness had made.
17. Witnesses: Impeachment: Prior Statements: Case Disapproved.A party's impeachment of its own witness under Neb.Rev.Stat. § 27–607 (Reissue 2008) with a prior inconsistent statement is not necessarily dependent upon a showing that the trial testimony sought to be impeached caused affirmative damage to the party's case. To the extent that State v. Brehmer,211 Neb. 29, 317 N.W.2d 885 (1982), and State v. Marco,220 Neb. 96, 368 N.W.2d 470 (1985), can be read to hold otherwise, they are disapproved.
18. Jury Instructions: Appeal and Error.The determination of whether a jury instruction is correct is a question of law, and an appellate court resolves questions of law independently of the determination reached by the trial court.
19. Jury Instructions: Proof: Appeal and Error.In an appeal based on a claim of an erroneous jury instruction, the appellant has the burden to show that the questioned instruction was prejudicial or otherwise adversely affected a substantial right of the appellant.
20. Criminal Law: Evidence: Appeal and Error.In reviewing a sufficiency of the evidence claim, whether the evidence is direct, circumstantial, or a combination thereof, the standard is the same: 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. The relevant question for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
21. Sentences: Appeal and Error.An appellate court will not disturb sentences that are within statutory limits, unless the district court abused its discretion in establishing the sentences.
22. Sentences.When imposing a sentence, the sentencing judge should consider the defendant's (1) age, (2) mentality, (3) education and experience, (4) social and cultural background, (5) past criminal record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7) the nature of the offense and (8) the violence involved in the commission of the offense. The sentencing court is not limited to any mathematically applied set of factors.
23. Sentences.The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge's observation of the defendant's demeanor and attitude and all the facts and circumstances surrounding the defendant's life.
After a jury trial, Alfredo V. Dominguez was convicted of robbery and sentenced to imprisonment for 6 to 10 years. A codefendant, Malique A. Stevens, was tried with Dominguez and convicted of the same crime. In this appeal, Dominguez challenges various procedural and evidentiary rulings. We find no merit in any of his assignments of error and therefore affirm his conviction and sentence.
On the evening of December 3, 2012, Janelle Yaunk parked her car in the lot of an apartment complex in north Lincoln, Nebraska, where a friend resided. As she walked toward the entrance of the building, she was approached by a young man who displayed a gun. Two other young men soon joined him. All three wore hoods over their heads and foreheads, and the rest of their faces, except their eyes, were covered with bandannas.
The man with the gun ordered Yaunk to give him money. When she said she had none, he struck her in the face with the gun, and she sat on the ground. One of the other two men took her car keys and cell phone from her. The men then made her start the car for them before they ordered her out of the vehicle and drove away in it.
Yaunk's friend arrived soon after, and they called the police. Shortly after the robbery was reported, a Lincoln police officer observed the stolen car and attempted to stop it. Three individuals in the car jumped out of it while it was still moving and ran away. The officer attempted to give chase but was unable to apprehend them. A cell phone that belonged to Orlando Neal was found in the abandoned vehicle. A pellet gun was found approximately 30 feet from the vehicle.
Neal eventually confessed to the robbery and was subsequently convicted and sentenced. In his initial statements to the police, he implicated Stevens and Dominguez as the other two participants in the robbery. In a subsequent deposition, however, Neal stated Stevens and Dominguez were not involved. Investigators found Stevens' fingerprints on the exterior of Yaunk's car, and this evidence was admitted at trial. Investigators also determined that DNA found on the pellet gun came from Dominguez, and this evidence was admitted at trial.
Both Stevens and Dominguez were 15 years old at the time the robbery was committed. They were...
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