State v. Long, S-01-662.

• Decision Date: 14 June 2002
• Docket Number: No. S-01-662.,S-01-662.
• Citation: 264 Neb. 85,645 N.W.2d 553
• Parties: STATE of Nebraska, Appellee, v. Bernard D. LONG, Appellant.
• Court: Nebraska Supreme Court

645 N.W.2d 553

264 Neb. 85

STATE of Nebraska, Appellee, v. Bernard D. LONG, Appellant.

No. S-01-662.

Supreme Court of Nebraska.

June 14, 2002.

Deborah D. Cunningham, Omaha, for appellant.

Don Stenberg, Attorney General, and Samuel J. Bethune, Lincoln, for appellee.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

WRIGHT, J.

NATURE OF CASE

Bernard D. Long (Long) was convicted of first degree murder and use of a weapon to commit a felony. He was sentenced to life imprisonment and a consecutive sentence of 5 to 10 years' imprisonment. Long appeals.

SCOPE OF REVIEW

In reviewing a criminal conviction, an appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence. Such matters are for the finder of fact, and a conviction will be affirmed, in the absence of prejudicial error, if the properly admitted evidence, viewed and construed most favorably to the State, is sufficient to support the conviction. State v. Gartner, 263 Neb. 153, 638 N.W.2d 849 (2002).

FACTS

On May 2, 2000, Long's brother Roland Long (Roland) was shot by Keith Fox, a member of the South Family Bloods, a gang located primarily in South Omaha. Roland was a suspected member of the 37th Avenue Crips, a rival gang of the South Family Bloods. Long, Terrence Nelson, and Christopher Grant witnessed Roland's shooting. Long testified that after the shooting, he purchased a gun on the street for $100.

On May 3, 2000, Long, Grant, Nelson, and Lenny Moss visited Roland at the hospital. Upon leaving the hospital, the four drove on Saddle Creek Road to Military Avenue. At 72d Street and Military Avenue, they noticed a vehicle next to them which was driven by McHenry Norment, a South Family Bloods gang member. When Norment observed the parties in the Long vehicle, he brandished a semiautomatic handgun. The Long vehicle then turned at Templeton Drive and continued toward Fort Street and into a Runza restaurant's drive-through exit, proceeding out the entrance.

At that moment, Norment's vehicle was caught in heavy traffic on Fort Street. Long then jumped out of his vehicle and began firing toward Norment's vehicle. He fired 14 shots before he jumped back into the vehicle. Norment died from a gunshot wound to the head.

Claiming that the vehicle had overheated, Nelson stopped at 56th Street and Camden Avenue. The four occupants left the vehicle. Moss ran one way, and the other three ran toward the home of Grant's mother, Tamyra Wilson. Long was carrying the gun but dropped it along the way. It was later discovered in the bushes behind a house located on Fort Street.

The three men told Wilson that their vehicle had broken down. When the police subsequently arrived, the men were arrested. Long was interviewed at the police station and initially denied being at the scene.

The police found two spent shell casings and a semiautomatic handgun on the floor of Norment's vehicle. A gunpowder test showed powder on Norment's hands.

At trial, Moss testified that Long had stated he was going to "get" the South Family gang. Moss thought that when the group left the hospital, they were planning to buy orange clothing so they could blend in with South Family gang members.

Nelson and Grant denied that there was talk of revenge. Nelson said he heard shots from Norment's vehicle before Long got out of his vehicle. Grant stated that he saw Norment fire his gun before Long returned fire. Long testified that Norment pointed a gun at him and that he felt like he was about to lose his life. He said everything happened quickly, and it seemed as if he fired only six bullets.

Long also stated that he did not get along well with Moss, and on cross-examination, Long admitted to writing a letter to his brother Darnell Long (Darnell) in which he instructed Darnell to call Moss. Long's objection to the introduction of the contents of the letter was overruled. Over the renewed objection of his attorney, Long admitted that he had asked Darnell to get Moss to drink an alcoholic beverage before trial so Moss would not be able to testify. Long claimed that Moss lied about everything and that Moss was upset with Long because of Long's prior involvement with Moss' girl friend.

The jury found Long guilty of first degree murder and use of a weapon to commit a felony. Long's motion for new trial was overruled, and the district court sentenced him to life imprisonment on the first degree murder charge and 5 to 10 years' imprisonment on the use of a weapon to commit a felony charge, the sentences to be served consecutively. Long timely appealed.

ASSIGNMENTS OF ERROR

Long assigns as error that trial counsel provided ineffective assistance by failing to timely object to the composition of the jury based on Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Long asserts that the district court erred in overruling his motion in limine and in permitting cross-examination of Long concerning a letter written by him. Long also claims there was insufficient evidence to sustain a verdict of guilty beyond a reasonable doubt.

ANALYSIS

INEFFECTIVE ASSISTANCE OF COUNSEL

Long claims that his trial counsel was ineffective because counsel failed to raise a Batson challenge prior to the impaneling of the jury. After the jury was sworn, Long's trial counsel made a Batson challenge as to two members of the jury panel. Without conducting an evidentiary hearing, the district court overruled the motion because the jury had been sworn and the panel excused.

Following the jury verdict and in the absence of the trial judge, the State attempted to make a record in the presence of Long, Long's counsel, and the court reporter as to the State's race-neutral reasons for dismissing the two jurors. The State claimed that it had dismissed one of the jurors because the juror's nephew had been shot in the head in a drive-by shooting and the person responsible was released on a technicality. The juror's brother had worked with gangs and was acquainted with defense counsel.

The second juror was stricken because he lived in the Crips' territory, and Long was affiliated with the Crips. The juror was employed by an organization that worked with gang members. He had had two brothers killed in Kansas City and said he was upset with the prosecution for not notifying him of the trial. He had a brother who was a sheriff's deputy, who he felt was overzealous. This juror also worked for a watchdog organization that observed police actions, and he reported that he had been attacked by a police officer. The State also claimed that this juror sat with his arms crossed during the prosecution's questioning but not when the defense was speaking.

In this court, Long filed a motion to strike this evidence from the record, and we overruled the motion without prejudice. We now conclude that this evidence is not properly a part of the record and that, therefore, it should be stricken from the bill of exceptions.

The procedure for preparation of a bill of exceptions is regulated by the rules of practice prescribed by this court. Shuck v. Jacob, 250 Neb. 126, 548 N.W.2d 332 (1996). Neb. Ct. R. of Prac. 5A(2) (rev.2000) states in relevant part:

Upon the request of the court or of any party, either through counsel or pro se, the official court reporter shall make a verbatim record of anything and everything said or done by anyone in the course of trial or any other proceeding, including, but not limited to, any pretrial matters; the voir dire examination; opening statements; arguments, including arguments on objections; any motion, comment, or statement made by the court in the presence and hearing of a panel of potential jurors or the trial jury; and any objection to the court's proposed instructions or to instructions tendered by any party, together with the court's rulings thereon, and any posttrial proceeding.

(Emphasis supplied.)

According to Black's Law Dictionary 1221 (7th ed.1999), a "proceeding" is defined as "1. [t]he regular and orderly progression of a lawsuit, including all acts and events between the time of commencement and the entry of judgment." (Emphasis omitted.) What occurred outside the presence of the trial judge was not a proceeding in the course of the trial, and therefore, it should not be included in the bill of exceptions. The fact that it was recorded by a court reporter does not make it a proceeding. The recording by the court reporter establishes only that the transcription is an accurate recording of what occurred.

The defendant must make a timely Batson challenge, or the State may waive the timeliness of the objection. See State v. Myers, 258 Neb. 300, 603 N.W.2d 378 (1999). If the State waives the timeliness of the challenge, the parties must make an evidentiary record before the court prior to the time the evidence is presented to the jury.

In State v. Nelson, 189 Neb. 144, 201 N.W.2d 248 (1972), we stated that a defendant should not be allowed to speculate on the verdict and then challenge the selection of the panel after the verdict. The same rationale applies to the State. The State cannot refuse to waive the timeliness of Long's Batson challenge and then, after the verdict, attempt to establish that it was justified in striking the jurors in question. Therefore, we will not consider the information that was presented after the jury verdict.

We next address the claim of ineffective assistance of counsel. To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the defendant must show that counsel's performance was deficient and that this deficient performance actually prejudiced his or her defense. State v. Billups, 263 Neb. 511, 641 N.W.2d 71 (2002). In order to establish whether a defendant was denied effective assistance of counsel, he or she must ordinarily demonstrate that counsel was...