State v. Gresham
| Decision Date | 18 July 2008 |
| Docket Number | No. S-07-1043.,S-07-1043. |
| Citation | 752 N.W.2d 571,276 Neb. 187 |
| Parties | STATE of Nebraska, appellee, v. Darrielle GRESHAM, appellant. |
| Court | Nebraska Supreme Court |
Thomas C. Riley, Douglas County Public Defender, and Timothy P. Burns, Omaha, for appellant.
Jon Bruning, Attorney General, and Erin E. Leuenberger, Lincoln, for appellee.
Darrielle Gresham was convicted of attempted murder in the second degree, use of a deadly weapon to commit a felony, and possession of a defaced firearm. Gresham appeals his convictions and asserts that the district court for Douglas County erred in overruling his motions for a mistrial relating to closing argument and jury deliberations and in instructing the jury on attempted murder in the second degree as a lesser-included offense of attempted murder in the first degree. With regard to the latter, Gresham argues that attempted murder in the second degree cannot be a lesser-included offense of attempted murder in the first degree because both crimes are Class II felonies and are punishable by the same range of penalties. We reject Gresham's argument, and we affirm.
On March 20, 2005, an Omaha police officer initiated a traffic stop of a vehicle in which Gresham was a passenger. When the vehicle eventually came to a stop, Gresham and another passenger got out of the vehicle and ran in different directions. The driver remained inside the vehicle. The officer who initiated the stop stayed with the vehicle but sent out a radio alert to other officers regarding the individuals who had fled from the vehicle.
Various officers in the area, including Officers Zachary Petrick and Frank Platt, responded to the alert. Petrick and Platt came upon Gresham, who was being pursued on foot by Officer Matt Chandler. Petrick noted that Gresham was carrying a gun. Chandler caught up to Gresham and grabbed him around the waist. As Chandler struggled with Gresham, Gresham fired a shot at Petrick who was standing approximately 10 feet away. The bullet Gresham fired entered Petrick's thigh and exited through his buttocks. Petrick returned a shot at Gresham, who fell to the ground as a result of either Petrick's shot or the struggle with Chandler. Chandler fell with Gresham. As the two continued their struggle on the ground, Gresham fired two shots toward Platt. With the assistance of other officers, Chandler eventually gained control of Gresham and handcuffed him. Gresham was arrested and was hospitalized as a result of injuries from the shot fired by Petrick. Officers found the gun Gresham had used, and it was later determined that the gun's serial number had been scratched or rubbed off.
Gresham was charged with attempted murder in the first degree, use of a deadly weapon to commit a felony, and possession of a defaced firearm. At trial, the State presented witnesses who testified to the facts set forth above. Gresham testified in his defense. He stated that he had the gun because he had taken it from a man who had threatened him earlier. He ran from the traffic stop because he was on probation and he was scared that if he was found with the gun, his probation would be revoked. Gresham testified that when Chandler caught up to him, Gresham was going to give up, and that he took the gun out of his pocket to let Chandler know that he had it. Gresham denied that he intentionally fired any shots; he testified that he did not remember firing his gun, nor did he remember anything from the time he was handcuffed until he awoke in the hospital.
The trial court instructed the jury on attempted murder in the second degree as a lesser-included offense of attempted murder in the first degree. Gresham objected to the lesser-included offense instruction and argued that because both offenses were Class II felonies, attempted murder in the second degree could not be a lesser-included offense. The court gave the instruction over Gresham's objection.
During the rebuttal portion of the State's closing arguments, the prosecutor commented on the jury's duty to assess the credibility of witnesses and reasonable doubt. The prosecutor stated in part:
The Judge will give you an instruction on beyond a reasonable doubt and what that means. And that last sentence is proof beyond a reasonable doubt. It does not mean proof beyond all possible doubt. What I said before that is that proof beyond a reasonable doubt is similar to situational in more serious and important transactions in life. So you can have some doubt and still decide this case, but the more serious and important transactions in life, for example hiring somebody to be your CEO for your corporation hiring somebody to take care of your kids on a European vacation. Would you trust that man?
Gresham objected to the prosecutor's statement and moved for a mistrial. The court overruled the motion.
The case was submitted to the jury in the late morning of June 26, 2007. The jury deliberated through that afternoon and the next day. Late in the afternoon of June 27, the jury sent a note to the court stating that it was at an impasse. The court questioned the jury and determined that the jury had reached a unanimous decision regarding the charge of possession of a defaced firearm but was at an impasse with respect to the two other charges. The court asked the jurors whether they thought additional further deliberations, following an overnight break, might result in a just and unanimous verdict. The foreperson replied, "I don't think it's probable, no." However, other jurors disagreed and thought that the issues could be resolved. The court stated that it was "getting a sense from more persons that it would be appropriate to give this further thought and further reflection and further deliberation." The court therefore stated that the jury should break for the evening and return for further deliberations the next morning.
After the court so informed the jury, one juror reminded the court that, as she had noted during voir dire, she was scheduled to leave on vacation the next day, June 28, 2007. The court asked whether she had airplane tickets; she responded that the trip would be by car. The court asked the jury how the votes were divided as to the two counts that were not unanimous. The foreperson responded that the vote was 11 to I. The court sent the jurors to the jury room to discuss whether they would prefer to continue deliberations that evening or return the next day. While the jury was outside the courtroom, Gresham moved for a mistrial and declaration of a hung jury based on the 11 to 1 split and the possibility that the juror who was to leave for vacation the next day would be subject to "serious outside pressure" to cause an end to deliberations. The court overruled Gresham's motion. The court excused the jury after being informed that the jurors preferred to return to deliberations the next morning rather than continuing that evening.
The jury continued deliberations on the morning of June 28, 2007. At approximately 10:45 a.m., the jury informed the court that it had reached unanimous verdicts. Before reading the verdicts, the court asked the jury foreperson whether, in light of the prior day's events, there was any undue pressure placed on the one dissenting juror. The foreperson responded that there was not. The verdict form stated that the jury found Gresham guilty of attempted murder in the second degree, use of a deadly weapon to commit a felony, and possession of a defaced firearm. The court polled the jurors, and each juror responded that he or she agreed with the verdicts.
The court accepted the verdicts and entered judgment against Gresham. The court later sentenced Gresham to imprisonment for 20 to 40 years on the attempted murder conviction, for 10 to 20 years on the weapon conviction to be served consecutive to the sentence on the murder conviction, and for 20 to 60 months on the defaced firearm conviction to be served concurrent with the sentence for the attempted murder conviction.
Gresham appeals his convictions.
Gresham asserts that the district court erred in (1) instructing on attempted murder in the second degree as a lesser-included offense of attempted murder in the first degree, (2) overruling his motion for a mistrial based on the prosecutor's comments during closing arguments, and (3) overruling his motion for a mistrial based on the jury's initial impasse on two counts.
Whether a crime is a lesser-included offense is determined by a statutory elements approach and is a question of law. State v. Blair, 272 Neb. 951, 726 N.W.2d 185 (2007). When dispositive issues on appeal present questions of law, an appellate court has an obligation to reach an independent conclusion irrespective of the decision of the court below. Id.
The decision whether to grant a motion for mistrial is within the discretion of the trial court and will not be disturbed on appeal in the absence of an abuse of discretion. State v. Gutierrez, 272 Neb. 995, 726 N.W.2d 542 (2007).
Attempted Murder in the Second Degree Is a Lesser-Included Offense of Attempted Murder in the First Degree Even Though the Two Crimes Are of the Same Class and Carry the Same Penalty.
Gresham asserts that the district court erred in instructing on the lesser-included offense of attempted murder in the second degree. He argues that attempted murder in the second degree cannot be a lesser-included offense of attempted murder in the first degree because both crimes are Class II felonies and carry the same penalty. We reject Gresham's argument.
We have held that it is not error for a trial court to instruct the jury, over the defendant's objection, on any lesser-included offenses supported by the evidence and the pleadings. State v. Pribil, 224 Neb. 28, 395 N.W.2d 543 (1986). See, also, State v. James, ...
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