State v. Franklin
| Decision Date | 16 August 2022 |
| Docket Number | A-21-605,A-21-607 |
| Parties | State of Nebraska, appellee, v. Devron D. Franklin, appellant. |
| Court | Nebraska Court of Appeals |
Appeals from the District Court for Douglas County: Marlon A Polk, Judge.
Thomas C. Riley, Douglas County Public Defender, and Leslie E Cavanaugh, for appellant.
Douglas J. Peterson, Attorney General, and Siobhan E. Duffy for appellee.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
Following a consolidated jury trial in case No. A-21-605 and case No. A-21-607, Devron D. Franklin was convicted of eight felonies. The Douglas County District Court subsequently found Franklin to be a habitual criminal in both cases and sentenced him to various concurrent and consecutive terms of imprisonment. On appeal, Franklin claims violations of his statutory right to a speedy trial and errors regarding jury selection and the admission of certain exhibits at trial. We affirm Franklin's convictions. However, we have noted issues of plain error in Franklin's sentences, and we therefore vacate all sentences and remand both cases for resentencing.
On July 22, 2018, Tyler Effle was robbed at gunpoint outside of his residence in Omaha, Nebraska. On July 27, Anastasia Ruhland was robbed at gunpoint outside of her residence in Omaha. Later, on July 27, someone attempted to rob Justin Cramer outside of his residence in Omaha; during the attempted robbery Cramer was shot three times. During the investigations of the three incidents, Franklin was developed as a suspect. On July 28, law enforcement attempted a traffic stop of Franklin, but Franklin fled in his vehicle. After giving chase, law enforcement was eventually able to apprehend Franklin.
In case No. A-21-605 (CR 18-3610), the State filed an information on October 11, 2018, charging Franklin with four counts: count 1, first degree assault, a Class II felony, in violation of Neb. Rev. Stat. § 28-308(1) (Reissue 2016); count 2, use of a deadly weapon (firearm) to commit a felony, a Class IC felony, in violation of Neb. Rev. Stat. § 28-1205(1) (Reissue 2016); count 3, attempted robbery, a Class IIA felony, in violation of Neb. Rev. Stat. §§ 28-324 and 28-201(4)(b) (Reissue 2016); and count 4, use of a deadly weapon (firearm) to commit a felony, a Class IC felony, in violation of § 28-1205(1). Cramer was the named victim in counts 1 and 3. The Douglas County Public Defender's office was appointed to represent Franklin.
In case No. A-21-607 (CR 18-3497), the State filed an information on October 3, 2018, charging Franklin with five counts: count 1, robbery, a Class II felony, in violation of § 28-324; count 2, use of a deadly weapon (firearm) to commit a felony, a Class IC felony, in violation of § 28-1205(1); count 3, robbery, a Class II felony, in violation of § 28-324; count 4, use of a deadly weapon (firearm) to commit a felony, a Class IC felony, in violation of § 28-1205(1); and count 5, possession of a deadly weapon (firearm) by a prohibited person, second offense, a Class IB felony, in violation of Neb. Rev. Stat. § 28-1206 (Cum. Supp. 2018). Effle was the named victim in count 1, and Ruhland was the named victim in count 3. The Douglas County Public Defender's office was appointed to represent Franklin. With leave granted by the district court, the State filed an amended information on September 25, 2019, adding count 6, "Operating Motor Vehicle to Avoid Arrest Willful Reckless Driving," a Class IV felony in violation of Neb. Rev. Stat. § 28-905 (Reissue 2016), and count 7, "Habitual Criminal" as described in Neb. Rev. Stat. § 29-2221 (Reissue 2016).
The record reflects that beginning on November 19, 2018, Franklin made several consecutive motions to continue the pretrial conference in both cases. And despite having counsel, Franklin filed pro se motions to dismiss in both cases on May 10 and June 10, 2019, alleging violations of his statutory and constitutional rights to a speedy trial. On June 17, the district court entered an order "setting a Pretrial in the . . . case[s] on [Franklin's] motion[s] to dismiss for violation of [his] Right to Speedy Trial"; the hearing was set for June 20. However, the pretrial conference was then continued multiple times thereafter. We note here that there are a number of motions and hearings that took place in 2019 and 2020, however, orders related to the same were not entered until 2021. That said, other than the speedy trial issue which we will discuss in our analysis, the procedural nature of the underlying proceedings and the delayed filing of court orders do not impact the issues raised on appeal.
Franklin again filed pro se motions to dismiss in both cases on January 11, 2021, alleging violations of his statutory and constitutional rights to a speedy trial.
On March 26, 2021, the district court filed a number of orders, many of which stemmed from pleadings and hearings dating back to 2019. One order granted the State's September 2019 motion to amend the information in case No. A-21-607 (CR 18-3497) to add a sixth count for operating a motor vehicle to avoid arrest and "COUNT 7: HABITUAL CRIMINAL." Another order granted the State's 2019 motions to consolidate case No. A-21-605 (CR 18-3610) and case No. A-21-607 (CR 18-3497) for trial. In both orders, the court referenced these matters being heard in September 2019, and that the motions were sustained for "reasons stated in open court on the record." (The bill of exceptions does not contain the referenced September 2019 hearing.) None of the March 26, 2021, orders addressed Franklin's speedy trial claims.
On April 7, 2021, the district court entered a "Jury Trial Order" stating that trial was scheduled for April 19.
Not enough jurors were called for April 19, 2021, so voir dire commenced on April 21. Voir dire was conducted with 43 potential jurors--3 were excused by the district court itself without objection. After the parties exercised their peremptory strikes, Franklin raised a challenge under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), because the State struck two of the three "African-American" jurors, and Franklin claimed that one of those struck jurors had pointed out the lack of diversity in the venire which that juror did not think was fair to the defendant. The district court denied Franklin's Batson challenge. Trial proceeded on the merits of the case, and the parties stipulated that Franklin was a "prohibited person" as defined by statute because he had previously been convicted of a felony. Other facts will be discussed as necessary in the analysis.
On April 28, 2021, the jury found Franklin guilty of 8 of the 10 charges. The jury found Franklin guilty of: robbery of Ruhland; use of a deadly weapon (firearm) to commit a felony; possession of a deadly weapon (firearm) by a prohibited person; "Operating Motor Vehicle to Avoid Arrest Willful Reckless Driving"; first degree assault of Cramer; use of a deadly weapon (firearm) to commit a felony; attempted robbery of Cramer; and use of a deadly weapon (firearm) to commit a felony. The jury found Franklin not guilty of robbery of Effle and use of a deadly weapon (firearm) to commit a felony (counts 1 and 2 in CR 18-3497). The district court entered judgment on the convictions.
In its order filed on July 8, 2021, in case No. A-21-607 (CR 18-3497), the district court found Franklin was a habitual criminal and sentenced him to 10 years to 10 years and 1 day imprisonment on each of the following counts: count 3, robbery of Ruhland; count 4, use of a deadly weapon (firearm) to commit a felony; and count 6, operating a vehicle to avoid arrest. The court sentenced Franklin to 20 years to 20 years and 1 day imprisonment on count 5, possession of a deadly weapon (firearm) by a prohibited person. The court stated,
Franklin appeals.
Franklin assigns, reordered, that (1) he was denied his right to a speedy trial, (2) the district court erred in overruling his Batson challenge to the racial makeup of the jury, and (3) the district court erred in admitting three 911 recordings into evidence.
An appellate court reviews de novo the facial validity of an attorney's race-neutral explanation for using a peremptory challenge as a question of law. It reviews for clear error a trial court's factual determination regarding whether a prosecutor's race-neutral explanation is persuasive and whether the prosecutor's use of a peremptory...
To continue reading
Request your trial