State v. Figures

Decision Date02 April 2021
Docket NumberNo. S-19-1210.,S-19-1210.
Citation308 Neb. 801,957 N.W.2d 161
Parties STATE of Nebraska, appellee, v. Phillip P. FIGURES, appellant.
CourtNebraska Supreme Court

Peder Bartling, of Bartling Law Offices, P.C., L.L.O., for appellant.

Douglas J. Peterson, Attorney General, and Austin N. Relph, Lincoln, for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Cassel, J.

I. INTRODUCTION

In this direct appeal, Phillip P. Figures challenges his convictions, pursuant to a jury verdict, for first degree murder and use of a firearm to commit a felony. Figures presents numerous assignments of error aimed at the trial court, the sufficiency of the evidence presented, and his allegedly ineffective trial counsel. Because we find no reversible error or abuse of discretion, we affirm.

II. BACKGROUND
1. CHARGES

The State charged Figures with first degree murder, a Class IA felony,1 and use of a firearm to commit a felony, a Class IC felony.2 After Vanessa Figures, Figures’ then spouse, provided a statement to police, he became a suspect in Fredrick Green's death in Omaha, Nebraska, on July 15, 2018. Charges soon followed.

Citing Vanessa's statement and other corroborating evidence, the State alleged that Figures ordered Rufus Dennis to kill Green to ensure that Green would not "snitch" to the police. According to Vanessa, Green was home when Figures and Dennis attempted to burglarize Green's house.

2. TRIAL EVENTS

Figures was tried by a jury. The trial is summarized below. Additional facts pertinent to Figures’ assigned errors are presented in the analysis.

(a) The State's Case

Vanessa served as the State's primary witness. The State corroborated Vanessa's testimony with investigators’ testimony. The State also endeavored to disprove that other people may have committed the murder.

(i) Vanessa's Testimony

At the time of the murder, Vanessa lived with Figures as his wife. Before the trial, they divorced. In this section, we set forth the facts that she testified to at trial.

Recounting the days leading up to the murder, Vanessa paid for all the living expenses for Figures and herself. Figures was unemployed and did not contribute to their finances. Becoming upset with the financial situation, Vanessa demanded that Figures "get on [his] feet and help [her] pay these bills." Figures responded that he and Dennis planned on getting money by burglarizing Green's house, which, according to Figures, contained an estimated $50,000.

On the day of the murder, Figures left Vanessa's house in a rush after it was reported to him that Green had left his home. When Figures returned in the afternoon, his "adrenaline [was] going." Figures said, " ‘Rufus killed him ... Fred Green, he killed him.’ "

Figures explained that the burglary had gone wrong; Green was home. After Figures and Dennis entered through an unlocked door to Green's house, they found Green talking on a phone. Dennis pointed a gun at Green, who responded, " ‘This is Pooh, this is Pooh on the phone right now, it's cool ....’ " Dennis’ sister, Winnie Dennis, was known by the name "Pooh."

Figures forced Green into the basement. Figures then assaulted Green. Figures "tased him so much that ... [t]he back flew off the taser and the batteries popped out." Figures recovered the taser's batteries, but not the back of the taser.

Figures then instructed Dennis to guard Green while Figures searched the home. Soon after, Dennis shot Green in the leg. Figures returned to the basement, and Dennis said, " ‘I got to kill him, he's gonna snitch ....’ " Figures responded, " ‘Kill him then, cuz.’ " Dennis shot Green three or four times, killing him. Before returning to Vanessa's house, Figures took $2,000 and a gold necklace from Green's house.

To cover his tracks, Figures buried the necklace in the yard of Vanessa's house, dumped the clothes he was wearing during the murder at a nearby carwash, changed his phone number, ensured that Dennis got rid of the murder weapon, and went to a state park.

In the days following the murder, Figures became "more and more paranoid," resulting in hostile behavior toward Vanessa. On July 26, 2018, Figures’ temper apexed and he moved out of Vanessa's house. However, Figures continued to call and text Vanessa, demanding that she "keep [her] mouth shut."

Figures later returned to Vanessa's house and threatened, " ‘Don't make me kill you, Vanessa.’ "

Fearing for her life, Vanessa retrieved Green's necklace from the yard and drove to the Papillion Police Department in Papillion, Nebraska. Vanessa gave a detailed statement to the Papillion Police Department and, later, to the Omaha Police Department, featuring the information she testified to at trial.

(ii) Corroborating Evidence

The State amplified Vanessa's credibility by corroborating her testimony with the findings of its investigation. The State used a collection of law enforcement investigators to present the following: Winnie's jailhouse phone call, Green's autopsy report, the taser's back piece, video footage of Figures allegedly throwing away the clothes he was wearing during the murder, Figures’ interviews with investigators, cell phone records, DNA evidence, and cell tower metadata showing Figures near Green's house around the time of the murder. The context surrounding each piece of evidence will be addressed in turn.

First, Investigator Wendi Dye explained that the front door to Green's house was unlocked, and she described the location of Green's body and the evidence collected at the scene. Additionally, two police officers, Patrick Dempsey and Beau Taylor, recounted how Vanessa's statement aided the investigation. For instance, Vanessa's statement alerted them to the taser's back piece, which was later recovered from Green's basement.

Next, a coroner discussed Green's autopsy. She explained that Green died from three gunshot wounds to the head and chest. Green also suffered a gunshot to the knee.

The State played a recorded phone call between Green and Winnie. Because Winnie was then incarcerated, the call was recorded by the correctional facility. In the recording, Green said, "Pooh's on the phone ... Pooh, say some-thing to your brother." Without hanging up the phone, Green stopped talking.

The State displayed video surveillance footage from a carwash. The footage allegedly showed Figures dumping the clothes he was wearing during the murder in the carwash's trash bin. However, investigators were unable to recover the clothes before a sanitation truck collected the bin's contents.

The State also played a redacted version of Figures’ first interview with Investigator Ryan Hinsley. In the video, Figures claimed that he was putting a stereo system into his sister's car on the day of the murder. Also, Figures denied knowing Dennis or having any knowledge of the murder. However, Hinsley testified that, in a followup interview, Figures admitted that he knew who the "killer" was and that he could provide more information to the investigators. For instance, Figures claimed that the "killer" dumped Green's cell phone in a trash can, sewer, or other location, but would not be any more specific. Based on this information, investigators found Green's phone in a sewer drain near Vanessa's house.

Figures consented to a police search of his cell phone and provided a DNA sample. Police officer Oscar Dieguez downloaded the contents of Figures’ phone and testified to its contents alongside the contents of Dennis’ and Vanessa's cell phones. Dieguez pointed out that Figures’ phone communicated with Dennis’ phone multiple times before, during, and after the day of the murder. Dieguez also verified the threatening text messages that Figures sent to Vanessa.

A DNA analyst testified regarding the DNA testing of 17 items. Notably, Green's and another person's DNA were found on some of the items. While Figures was not a DNA contributor on a few items, testing of Figures’ DNA was inconclusive on other items.

Finally, investigators used cell tower metadata to show that Figures was near Green's house during the time of the murder. Both a telecommunications representative and an agent with the Federal Bureau of Investigation reviewed metadata from Omaha cell towers and concluded that Figures’ cell phone traveled near Green's house before and after the murder.

Because the phone was inactive during the time the State believed the murder occurred, neither witness could specifically pinpoint Figures’ phone to be at Green's house. Another telecommunications representative confirmed that Figures changed his phone number following the murder.

(iii) Other Witnesses’ Testimony

The State presented three other witnesses: Cynthia Anderson, Green's girlfriend; Akil Williams, Green's business partner; and Jazmyne McMiller, Williams’ girlfriend. These three witnesses collectively discovered Green's body, but none was able to place Figures at the crime scene. However, they established that Green's murder occurred between 11:45 a.m. and 1:30 p.m. on July 15, 2018.

McMiller arrived first at Green's house around 1:30 p.m., and when no one answered the door, she remained on the porch. Soon after, Williams met McMiller on the porch, where they stayed. Finally, Anderson returned to the house. Anderson lived at the property and had left around 11:45 a.m. to donate plasma. Anderson entered the house and became alarmed when she saw that her bedroom's dresser drawers were ransacked. McMiller and Williams then went inside the house, and Anderson discovered Green's body in the basement.

Anderson called the 911 emergency dispatch service and tried to resuscitate Green, but McMiller and Williams immediately left the property. Williams testified that they left because he did not want to risk being around law enforcement while possessing a gun. After Williams hid the gun, McMiller and Williams returned to Green's house, but law enforcement had arrived. All three witnesses complied with investigators and subjected themselves to interviews and DNA requests.

(b)...

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