State v. Jackson

• Decision Date: 17 July 1998
• Docket Number: No. S-97-522,S-97-522
• Citation: 255 Neb. 68,582 N.W.2d 317
• Parties: STATE of Nebraska, Appellee, v. Michael T. JACKSON, Appellant.
• Court: Nebraska Supreme Court

Page 317

582 N.W.2d 317

255 Neb. 68

STATE of Nebraska, Appellee, v. Michael T. JACKSON, Appellant.

No. S-97-522.

Supreme Court of Nebraska.

July 17, 1998.

Syllabus by the Court

1. Judgments: Appeal and Error. On a question of law, an appellate court is obligated to reach a conclusion independent of the determination reached by the court below.

2. Judges: Appeal and Error. The exercise of judicial discretion is implicit in determinations of relevancy, and the trial court's decision will not be reversed absent an abuse of discretion.

3. Rules of Evidence: Appeal and Error. The admissibility of evidence is reviewed for an abuse of discretion where the Nebraska rules of evidence commit the evidentiary question at issue to the discretion of the trial court.

4. Rules of Evidence: Judges. Judicial discretion is a factor involved in admissibility of evidence under Neb. Evid. R. 402 and 403, Neb.Rev.Stat. §§ 27-402 and 27-403 (Reissue 1995).

5. Criminal Law: Motions to Dismiss: Evidence. In determining whether a criminal defendant's motion to dismiss for insufficient evidence should be sustained, the State is entitled to have all of its relevant evidence accepted as true, the benefit of every inference that reasonably can be drawn from the evidence, and every controverted fact resolved in its favor.

6. Criminal Law: Motions for New Trial: Appeal and Error. In a criminal case, a motion for new trial is addressed to the discretion of the trial court, and unless an abuse of discretion is shown, the trial court's determination will not be disturbed.

7. Appeal and Error. Plain error may be found on appeal when an error is plainly evident on the record and which prejudicially affects a litigant's substantial right and, if uncorrected, would cause a miscarriage of justice or damage the integrity, reputation, and fairness of the judicial process.

8. Search Warrants: Affidavits: Probable Cause: Appeal and Error. In determining the sufficiency of an affidavit to show probable cause for the issuance of a search warrant, an appellate court looks to the totality of the circumstances. This means that if the circumstances set forth in the affidavit, including the veracity and basis of knowledge of persons supplying hearsay information, indicate there is a fair probability that evidence of a crime may be found at the place described, the affidavit is sufficient.

9. Motions to Suppress: Courts: Records. District courts shall articulate in writing or from the bench their general findings when denying or granting a motion to suppress. The degree of specificity required will vary, of course, from case to case.

10. Evidence. To determine whether DNA evidence is admissible, the trial court is to decide preliminarily, outside the presence of the jury, on the basis of the evidence before it: (1) whether the witnesses on the DNA issue are experts in the relevant scientific fields; (2) whether the type of DNA testing used in the case under consideration is generally accepted by the relevant scientific community, including the accompanying statistical analysis; (3) whether the testing protocol used in the case under consideration is generally accepted as reliable if performed properly; (4) whether the test conducted properly followed the protocol; (5) whether DNA analysis evidence is more probative than prejudicial under Neb.Rev.Stat. § 27-403 (Reissue 1995); and (6) whether statistical probability evidence interpreting the DNA analysis results is more probative than prejudicial.

11. Homicide: Photographs. In a homicide case, photographs of the victim, upon proper foundation, may be received in evidence for purposes of identification, to show the condition of the body, to show the nature and extent of wounds or injuries, and to establish malice or intent. Autopsy photographs of a murder victim's body are admissible into evidence to establish the manner in which the victim was killed.

12. Homicide: Intent: Time. The time required to establish premeditation may be of the shortest possible duration and may be so short that it is instantaneous, and the design or purpose to kill may be formed upon premeditation and deliberation at any moment before the homicide is committed.

13. Criminal Law: Trial: Jurors: Presumptions: Proof. In a criminal case, misconduct involving an improper communication between a nonjuror and a juror gives rise to a rebuttable presumption of prejudice which the State has the burden to overcome.

14. Jury Misconduct: Proof. A criminal defendant claiming jury misconduct bears the burden of proving, by a preponderance of the evidence, (1) the existence of jury misconduct and (2) that such misconduct was prejudicial to the extent that the defendant was denied a fair trial.

15. Jury Misconduct: Verdicts. In order for a verdict to be set aside because of the prejudicial effect of newspaper accounts on jurors, there must be evidence presented that the jurors read newspaper accounts and that the accounts were unfair or prejudicial to the defendant.

James C. Hart, Jr., Omaha, for appellant.

Don Stenberg, Attorney General, and Kimberly A. Klein for appellee.

CAPORALE, WRIGHT, CONNOLLY, GERRARD, STEPHAN, and McCORMACK, JJ.

McCORMACK, Justice.

This case arises out of the shooting of two people in Omaha, Nebraska, for which appellant, Michael T. Jackson, was found guilty of first degree murder, attempted first degree murder, and two counts of use of a weapon to commit a felony. We review this case on direct appeal due to the imposition of a life sentence by a three-judge sentencing panel.

I. BACKGROUND

Dionne Brewer, Jason Thornton, and Jackson were in Thornton's Chevrolet Blazer on February 4, 1996. Thornton picked up Brewer earlier in the day and went to pick up Jackson at his residence. Brewer had seen Jackson before and knew that his name was Michael but did not know his last name.

Upon picking up Jackson, the group had planned to fly to Minneapolis, Minnesota, to retrieve some cocaine, and Brewer was then to drive back to Omaha with it. Jackson and Thornton had agreed that Jackson owed Thornton approximately $11,500 for the purchase of a kilo of cocaine. Jackson did not want to fly with that much cash for fear it would be confiscated and encouraged the group to drive to Minneapolis. Thornton then told Jackson to forget the deal.

After dropping Jackson off, Thornton and Brewer discussed driving up and back to retrieve the drugs from Minneapolis. Thornton then called Jackson to inform him that they had changed their minds and were going to drive to Minneapolis. Thornton and Brewer packed some clothes, stopped at a store, and then picked up Jackson again. Jackson entered the Blazer with a black bag and announced that he had smoked some marijuana and was high. The three then went to look for a rental car that Jackson had purportedly rented for the drive to Minneapolis.

The group stopped at Brewer's cousin's house, where Jackson said his girl friend lived; however, she was not there. Brewer began to get irritated with Jackson for wasting time. Jackson claimed that he knew where he was going and that the three should turn onto Redmond Street where the car was parked. Thornton stopped near a car on the street and began to get out of the Blazer when Brewer heard shots being fired. Brewer turned to see Jackson in the backseat, leaning forward, firing bullets into Thornton.

Brewer leapt from the vehicle and began to run down the street, screaming. Jackson began to pursue her, firing several shots at her. After being struck by a bullet, Brewer fell to the ground, still screaming for help. Jackson came over to Brewer while she still lay on the ground and shot her again. Brewer fell silent after the shot grazed her face. Jackson shot her one more time in the shoulder before leaving the scene. Brewer played dead for a while longer before going to one of the homes along the street to call police. When the police interviewed Brewer, she identified the shooter as someone whose last name she did not know, but whose first name was Mike, and who was wearing blue jeans, a dark stocking cap, and a tan jacket. Brewer told the officers that Jackson lived in a blue, two-story house with a white trim fence, which house was located on the north side of Saratoga Street, one block west of Fontenelle Boulevard and the second house from the end of the block.

Ella R. Iler, in front of whose home the shooting took place, heard what she thought was a truck backfiring, looked out her kitchen window, and saw a male standing over a person lying in the street, shooting that person. She said she heard three shots. Iler said the shooter had on a dark knit hat, a light tan or beige coat, and dark trousers.

Officer Bruce M. Ferrell, after interviewing Brewer at University Hospital, drove to the area of 43d and Saratoga and identified the house from Brewer's description.

Demeteria Gardner testified that she had been dating Jackson at the time of the shooting and that Jackson had lived at his mother's house at 4344 Saratoga Street in Omaha. She further testified that she owned a green Plymouth Sundance, which Jackson was free to use. Gardner testified that Jackson borrowed the car on the night in question. She stated that he later returned and stayed for approximately 1 1/2 hours before leaving. The police arrived a few hours later and asked Gardner's permission to search the Sundance. She consented and signed a form indicating as such.

Once the house was located, Officer William Dussetschleger of the Omaha Police Division was assigned to maintain surveillance on the house at 4344 Saratoga Street until a warrant could be secured. Once the officers arrived with the warrant, Dussetschleger was instructed to search the Sundance that was parked in a driveway behind the house. Dussetschleger was instructed to particularly look for weapons and clothing, especially a tan jacket, tan shirt, and blue jeans. Upon opening the hatch area of the...