State v. Duncan, S-01-1256.

Decision Date07 March 2003
Docket NumberNo. S-01-1256.,S-01-1256.
Citation265 Neb. 406,657 N.W.2d 620
PartiesSTATE of Nebraska, Appellee, v. Daryle M. DUNCAN, Appellant.
CourtNebraska Supreme Court

Michael F. Maloney, Omaha, for appellant.

Don Stenberg, Attorney General, and Susan J. Gustafson for appellee.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

McCORMACK, J.

NATURE OF CASE

Daryle M. Duncan was convicted of first degree murder and use of a deadly weapon to commit a felony in connection with the December 4, 1999, death of Lucille Bennett. Duncan received consecutive sentences of life in prison on the murder charge and 19 to 20 years' imprisonment for use of a deadly weapon to commit a felony. Duncan appeals.

BACKGROUND

Shortly before 10:30 a.m. on Sunday, December 5, 1999, the body of Bennett was found in her home in Omaha, Nebraska. Bennett died from a stab wound to the right side of the neck, which penetrated two major arteries in the neck. Duncan was later arrested and charged with first degree murder and use of a deadly weapon to commit a felony in connection with the crime.

One of the State's primary witnesses at trial was Jaahlay Liwaru, Duncan's ex-wife. At the time of Bennett's murder, Liwaru was living in a drug treatment center to treat her addiction to crack cocaine. Duncan and Liwaru had agreed that Duncan would cash Liwaru's government assistance check and bring the money to Liwaru on December 3, 1999. Duncan did not show up that day or the next day.

Liwaru testified that between 1 and 3 a.m. on December 5, 1999, she received a telephone call from Duncan. Duncan told Liwaru that he did not have her money from the assistance check, which Liwaru interpreted to mean that he had used the money to buy drugs. Duncan went on to tell Liwaru that the "lady across the street" had been murdered. Duncan and Liwaru had previously lived directly across the street from Bennett. Liwaru also testified that Duncan told her that the lady had "gotten sliced from ... neck to neck... and she got stabbed up." Duncan also told Liwaru that he was going to go to hell. After Liwaru replied that he would not be going to hell for spending her money, Duncan replied, "[W]hat if I told you I killed Ms. Bennett." Immediately after the telephone call, Liwaru shared what Duncan had told her with Jennice Chanel, a patient at the treatment center. Chanel's testimony at trial of what Duncan told Liwaru was consistent with what Liwaru personally testified to.

Liwaru testified that she received another telephone call from Duncan shortly after 10 a.m. that same day. During the second telephone call, Duncan told Liwaru that he had seen Bennett being removed from her home. Other testimony from police and other authorities at Bennett's home established that Bennett's body was not removed from her home until approximately 7 p.m. on December 5, 1999. Immediately following this call, Liwaru told Margaret Nocita, an employee of the center, that her neighbor had been murdered and robbed. The State later called Nocita, who verified Liwaru's testimony.

The State also called Bill Gartside, a criminologist in the DNA serology section of the Nebraska State Patrol laboratory. Gartside examined a number of hairs from Bennett's home and found that several were consistent with a reference sample of hairs collected from Duncan's dogs. Another hair found at Bennett's house possessed some similar characteristics as well as dissimilar characteristics with a reference sample of hairs from Duncan. Gartside testified that the major dissimilarity in the hair found at the scene and Duncan's reference hair sample was the manner in which it was cut. Duncan objected to Gartside's qualification as an expert in hair analysis and made a motion in limine to preclude Gartside from offering any testimony regarding hair analysis. Both the objection and motion were overruled.

At the conclusion of the trial, the jury found Duncan guilty of first degree murder and use of a deadly weapon to commit a felony. He received consecutive sentences of life in prison on the murder charge and 19 to 20 years' imprisonment for use of a deadly weapon to commit a felony.

Additional facts relevant to the resolution of each of Duncan's assignments of error are recited in detail below.

ASSIGNMENTS OF ERROR

Duncan first assigns that the district court committed prejudicial error when it commented to the jury panel that it was "`[t]he attorney for the defendant's job... to resist the State's case and prove his client innocent if necessary.'" Brief for appellant at 18.

Duncan also claims that the jury was allowed to consider inadmissible evidence due to either the district court's erroneous evidentiary rulings or trial counsel's ineffective assistance. Specifically, the evidence Duncan takes exception to is (1) William Jadlowski's testimony on the subject of hair transfer, (2) the testimony of Chanel and Nocita regarding statements made to them by Liwaru, (3) Steven Henthorn's testimony regarding Crimestoppers tips received by the police, (4) Gartside's testimony in the field of hair analysis, (5) Jeffrey Harrington's testimony that Duncan's physical appearance had changed over the years and that it appeared Duncan's life had taken a different turn, and (6) Liwaru's testimony that a pot found in Bennett's home belonged to Duncan.

STANDARD OF REVIEW

In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules make discretion a factor in determining admissibility. State v. Pruett, 263 Neb. 99, 638 N.W.2d 809 (2002).

ANALYSIS
DISTRICT COURT'S COMMENT

On March 26, 2001, jury selection in Duncan's trial began with the court's calling and swearing in a number of prospective jurors. Shortly after the State began questioning the panel, a prospective juror expressed concern about his ability to participate in a trial and return a guilty verdict which might later lead to a death sentence. The State responded by asking several questions of the prospective juror in an attempt to determine if the prospective juror could still act in a fair and impartial manner. The court also entered the discussion, stating:

[L]et me put it another way. Everybody in the courtroom has a job to do.
The prosecution is to prosecute the case. Her job is to prove the defendant guilty beyond a reasonable doubt. The attorney for the defendant's job is to resist the State's case and prove his client innocent if necessary. The court reporter's job is to write down everything that is said in the courtroom. It's my job to referee this affair, and if a verdict of guilty is returned, to set the penalty. That's all I can tell you. Everybody has a different job to do. Does that help?

In his first assignment of error, Duncan argues that the district court committed prejudicial error when it commented to the jury panel that "`[t]he attorney for the defendant's job is to resist the State's case and prove his client innocent if necessary.' " Brief for appellant at 18. As a result, Duncan claims he is entitled to a new trial. Duncan characterizes the court's comment as a jury instruction. However, when viewed in context, it is clear that the district court was not attempting to instruct the jury panel on the applicable law. Instead, the court was merely commenting to one potential juror about the roles played by various participants in the trial.

We have said that trial courts should refrain from commenting on evidence or making remarks prejudicial to a litigant or calculated to influence the minds of the jury. State v. Red Kettle, 239 Neb. 317, 476 N.W.2d 220 (1991). To establish reversible error, a defendant must demonstrate that a trial court's conduct, whether action or inaction during the proceeding against the defendant, prejudiced or otherwise adversely affected a substantial right of the defendant. State v. Privat, 251 Neb. 233, 556 N.W.2d 29 (1996). While the inaccuracy of the district court's comment is obvious, the record fails to show that Duncan was prejudiced by the court's comment.

Throughout the daylong voir dire, both the State and defense made numerous mentions to the jury panel of the "presumption of innocence" to be applied in Duncan's favor or to the standard of "proof beyond a reasonable doubt." At one point, Duncan's trial counsel pointed out the district court's error and told the jury panel:

I'm not sure when it was mentioned, but it was mentioned this morning that Mr. Duncan may have to prove himself innocent or something like that. That may not be the exact words, but all of you must understand that the burden is upon the State of Nebraska to prove him guilty.

After the jury was selected and sworn in, the district court issued its preliminary instructions to the jury. Those preliminary instructions correctly instructed that "[t]he Defendant is presumed to be innocent. This presumption of innocence is evidence in favor of the Defendant and continues throughout the trial, until he shall have been proved guilty beyond a reasonable doubt." The court also issued a preliminary instruction to the jury regarding reasonable doubt that closely resembled the approved instruction in State v. McHenry, 247 Neb. 167, 525 N.W.2d 620 (1995). Finally, the district court issued final, written instructions to the jury at the close of the weeklong trial identical to those preliminary instructions mentioned above.

Viewing the erroneous comments at issue here in combination with the comments of the parties during jury selection, the accurate preliminary instructions, and the accurate final instructions, we conclude that Duncan suffered no prejudice as a result of the comment.

WILLIAM JADLOWSKI

Jadlowski, a sergeant with the Omaha Police Department, was one of the investigating officers at Bennett's home and testified generally as to the evidence found at the scene. Among these pieces of...

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