State v. Gonzales, S-15-149.

Decision Date02 September 2016
Docket NumberNo. S-15-149.,S-15-149.
PartiesState of Nebraska, appellee, v. Raymond Frank Gonzales, Jr., also known as Raymond Frank Gonzalez, appellant.
CourtNebraska Supreme Court

Todd W. Lancaster, of Nebraska Commission on Public Advocacy, for appellant.

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

Heavican, C.J., Wright, Connolly, Miller-Lerman, Cassel, Stacy, and Kelch, JJ.


, J.


Raymond Frank Gonzales, Jr., also known as Raymond Frank Gonzalez, appeals his convictions of first degree murder and use of a firearm to commit a felony in connection with the death of Bonnie Baker. Gonzales claims prosecutorial misconduct when, during closing arguments, the prosecutor indicated that Gonzales had lied when he denied during law enforcement interrogations that he was involved in the murder. The prosecutor also called the defense's theory of a different shooter “make believe.” Gonzales further argues that the trial court erred by failing to instruct the jury, in the definition of sudden quarrel, that provocation negates the element of malice. And he claims the court erred by failing to include in the first degree murder instruction that the State must prove the killing was not the result of a sudden quarrel.


On Sunday, December 15, 2013, Bonnie died at her trailer in the Atokad Trailer Park in South Sioux City, Nebraska, of multiple gunshot wounds

. Bonnie was shot 16 times with 9-mm bullets that came from the same firearm. The firearm was never found. In connection with Bonnie's death, Gonzales was convicted of murder in the first degree and use of a firearm to commit a felony. He was sentenced to life imprisonment on the murder conviction and to a consecutive term of 30 to 40 years' imprisonment on the use of a weapon conviction.

1. Party

The evidence at trial demonstrated that prior to her death, Bonnie spent the weekend in her trailer, which she shared with her brother, Elmer Baker, and her niece, Kaylynn Whitebear. Numerous people partied at the trailer over the weekend, beginning on Friday night, December 13, 2013, and continuing until Sunday morning, December 15. The guests drank beer and spirits excessively. Gonzales was one of the guests; he was brought to the party by Whitebear around 4 a.m. on Saturday. During the weekend, Elmer, Gonzales, and two other guests smoked methamphetamine in Elmer's bedroom. Bonnie kept mostly to herself in her bedroom.

Sometime around 3 a.m. on Sunday, Gonzales woke up from sleeping on the floor of the living room. He began acting erratically—yelling, falling, “flopping around on the ground,” and flipping over the furniture. Elmer pushed Gonzales toward his bedroom, “because there was nothing [Gonzales could] break in there.” Gonzales fell back asleep, and Elmer returned to the living room to talk for a couple of hours with another person.

2. Sexual encounter

At approximately 5 a.m., Elmer went to his room to sleep. He lay sideways at the head of the bed, since Gonzales was sleeping sideways at the foot of the bed. According to Elmer, he awoke when Gonzales initiated sexual contact. Elmer testified that he rebuffed Gonzales' advances and fell back asleep. Elmer stated that he awoke again to similar sexual contact. This led to what Elmer described as mutual and consensual sexual activity. This sexual activity apparently did not last very long, and Elmer and Gonzales fell asleep again. Elmer was openly homosexual. Gonzales was not.

3. Gonzales Upset and Teased

On Sunday morning, between 8 and 10 o'clock, Gonzales awakened and became very agitated. Elmer described that while he was sleeping, Gonzales had apparently placed Elmer's hand so that it was touching Gonzales' penis. Elmer testified that when he, Elmer, woke up to find his hand in that position, Gonzales jumped up and started “flipping out,” accusing Elmer of “raping him or something.” Elmer and Gonzales exited Elmer's bedroom. They engaged in a heated conversation in front of other guests, including Gonzales' friend Ira Rave. Gonzales was making accusations against Elmer that the encounter was nonconsensual, and Elmer denied the accusations.

Whitebear, Rave, and the other guests teased Gonzales, saying he was homosexual. Gonzales appeared angry. Rave teased Gonzales the most. There was no evidence that Bonnie teased Gonzales. Gonzales and Rave eventually engaged in an argument, and they pushed each other. Somebody soon intervened and broke up the fight.

Elmer testified that at one point, Gonzales told him, “I'm going to go get a gun and come back and shoot you.” But when Elmer suggested that they “go outside ... and deal with it right now,” Gonzales said he was just kidding. Another witness testified similarly that Gonzales had said he “was going to go get a gun and come back and do a show or something,” but that afterward, Gonzales said he was just kidding. A third witness heard Gonzales say something about guns.

The teasing and arguing continued until 10 or 11 a.m., when Bonnie asked all the guests to leave. Elmer described Bonnie as mad and stated that she was tired of everyone drinking there. Elmer thought that by the time he left, Gonzales no longer seemed angry.

Whitebear drove Gonzales to his mother's apartment. Gonzales was accompanied by Rave and two other passengers. Gonzales was mumbling to himself. One passenger testified that everyone else in the car was quiet during the ride, but Whitebear testified that the giggling and teasing of Gonzales continued in the car.

One passenger testified that Gonzales was “so calm,” stating that she “g [o]t no expression from him,” but Whitebear described Gonzales as [s]till pissed off” during the car ride. Two witnesses heard Gonzales say in the car something along the lines of, [W]hen I hit that place up, it's going to be like a fireworks show.” Nobody thought at the time that Gonzales was serious.

When he exited the car, Gonzales was still wearing what he had worn the night before, although there was some evidence he had left his coat at the trailer. A photograph taken at a store on December 14, 2013, captured what Gonzales was wearing the weekend of Bonnie's murder. He had on black pants and shoes, a cobalt blue hoodie pullover sweatshirt with a large white logo on the front, a gray and black beanie hat, and a dark gray zip-up overcoat. His clothing was generally loose fitting.

After dropping off her passengers, Whitebear went to a friend's house.

4. Eyewitness Descriptions of Shooter

At some point after Whitebear and all the guests had gone, Elmer left to give someone a ride. When Elmer arrived back home 20 minutes later, Bonnie was dead. The shooting occurred at approximately 1:20 p.m.

After she was shot, Bonnie ran outside to her front porch and yelled for help. Several residents of the trailer park heard Bonnie's cries and briefly saw the shooter. Six eyewitnesses testified at trial.

The eyewitnesses described the shooter as male, young, and thin. Several witnesses described the shooter as either Native American or Hispanic. At the time of trial Gonzales was 23 years old and described as being 5 feet 10 inches tall and weighing 160 pounds; he apparently has both Native American and Hispanic heritage.

The witnesses described the shooter as wearing a hoodie pullover sweatshirt. One witness described the shooter's clothing as baggy. The color of the sweatshirt was described by various witnesses as either gray with some blue on it, turquoise, or light blue. One witness said the shooter may have been wearing a black beanie, and another said he could have been wearing a hat. Some witnesses said the shooter's hood was up. One witness described the shooter's pants as being gray. Another described his pants as khaki.

One witness described watching the shooter fire shots at Bonnie while outside the trailer and then run to a parked car some distance away. This witness saw the shooter holding what appeared to be a small firearm in the shooter's right hand while he ran away.

The witness described the vehicle as being a four-door tan Saturn, explaining that he knew a lot about cars. The witness saw the shooter enter the Saturn in the back seat. In addition to the driver, a passenger was in the front seat. The shooter rode away in the Saturn.

5. Gonzales' Whereabouts on Day of Shooting

Testimony was adduced concerning Gonzales' whereabouts at the time of the shooting. Gonzales' sister and mother confirmed that Gonzales had arrived at his mother's apartment sometime in the morning of December 15, 2013. Gonzales' sister testified that she could tell Gonzales was still drunk from the night before even though he may have slept a few hours. Gonzales was crying and told her that a man may have taken advantage of him, though he was not sure. Gonzales' mother testified that Gonzales was weeping and that he told his sister that “somebody might have touched him when he was passed out.”

About 20 minutes after Gonzales arrived at his mother's apartment, his three older cousins, David Rodriguez, Anthony Housman, and Louis Housman, came to the apartment. Gonzales' sister testified that Gonzales had told her he wanted to talk to their older cousins because he didn't know if his manhood was taken or not.” The cousins and Gonzales spoke in the kitchen.

According to Gonzales' sister, Rodriguez, Anthony, and Gonzales went outside sometime around 2 p.m. She was unsure whether they had gone for a walk or a ride, as she showered after they went outside. According to Gonzales' sister, Louis had already gone home. Rodriguez, Anthony, and Gonzales were back in the apartment by the time Gonzales' sister got out of the shower. She believed the three men had been gone around 15 to 20 minutes.

According to Gonzales' mother, Louis stayed at the apartment while Rodriguez, Anthony, and Gonzales left for a while. It was sometime between noon and 2 p.m. when they left. She did not believe they were gone more than 15 or 20 minutes, because they were...

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3 books & journal articles
  • § 31.07 Manslaughter: Provocation ("Sudden Heat Of Passion")
    • United States
    • Carolina Academic Press Understanding Criminal Law (CAP) 2022 Title Chapter 31 Criminal Homicide
    • Invalid date
    ...E.R. 272, 277.[224] Regina v. McCarthy, [1954] 2 All E.R. 262, 265.[225] Rex v. Lesbini, [1914] 11 Crim. App. 7.[226] State v. Gonzales, 884 N.W.2d 102, 121 (Neb. 2016).[227] See especially § 18.05[A]-[B], supra.[228] State v. Thunberg, 492 N.W.2d 534, 536 (Minn. 1992) (noting the trend).[2......
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    • Carolina Academic Press Understanding Criminal Law (CAP) 2018 Title Chapter 31 Criminal Homicide
    • Invalid date
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