State v. Matthews

• Decision Date: 01 April 2014
• Docket Number: No. A-12-1052,A-12-1052
• Citation: 21 Neb.App. 869,844 N.W.2d 824
• Parties: State of Nebraska, appellee, v. William W. Matthews, appellant.
• Court: Nebraska Court of Appeals

21 Neb.App. 869

844 N.W.2d 824

State of Nebraska, appellee,

v.William W. Matthews, appellant.

No. A-12-1052

Court of Appeals of Nebraska.

Filed April 1, 2014

Appeal from the District Court for Hall County: William T. Wright, Judge. Affirmed in part as modified, vacated in part, and in part reversed and remanded for a new trial.

Gerard A. Piccolo, Hall County Public Defender, and Matthew A. Works for appellant.

Jon Bruning, Attorney General, and Melissa R. Vincent for appellee.

Inbody, Chief Judge, and Irwin and Riedmann, Judges.

1. Rules of Evidence. In proceedings where the Nebraska Evidence Rules apply, the admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial discretion is involved only when the rules make such discretion a factor in determining admissibility.

2. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court, the admissibility of evidence is reviewed for an abuse of discretion.

3. Judges: Words and Phrases. A judicial abuse of discretion exists only when the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result in matters submitted for disposition.

4. Jury Instructions. Whether jury instructions given by a trial court are correct is a question of law.

5. Judgments: Appeal and Error. 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.

6. Self–Defense. To successfully assert a claim of self-defense as justification for the use of force, the defendant must have a reasonable and good faith belief in the necessity of such force and the force used must be immediately necessary and must be justified under the circumstances.

7. Self–Defense. A determination of whether the victim was the first aggressor is an essential element of a self-defense claim.

8. Self–Defense: Evidence: Proof. Evidence of a victim's violent character is probative of the victim's violent propensities and is relevant to the proof of a self-defense claim.

9. Rules of Evidence.Neb. Rev. Stat. § 27–404 (Reissue 2008) provides that a defendant may present evidence of a pertinent trait of a victim's character to show that the victim acted in conformity therewith on a particular occasion.

10. Rules of Evidence: Testimony. In situations where testimony is allowed about a person's character trait, that trait may be shown by reputation and opinion testimony.

11. Rules of Evidence: Proof.Neb.Rev.Stat. § 27–405(2) (Reissue 2008) provides for proof of specific instances of conduct regarding a person's character or trait of character when the character or trait of character is an essential element of a charge, claim, or defense.

12. Criminal Law: Juries: Evidence: Appeal and Error. In a jury trial of a criminal case, an erroneous evidentiary ruling results in prejudice to a defendant unless the State demonstrates that the error was harmless beyond a reasonable doubt.

13. Criminal Law: Trial: Juries: Appeal and Error. In a jury trial of a criminal case, harmless error exists when there is some incorrect conduct by the trial court which, on review of the entire record, did not materially influence the jury in reaching a verdict adverse to a substantial right of the defendant.

14. Criminal Law: Trial: Juries: Appeal and Error. Harmless error review looks to the basis on which the jury actually rested its verdict; the inquiry is not whether in a trial that occurred without the error a guilty verdict would surely have been rendered, but, rather, whether the actual guilty verdict rendered in the questioned trial was surely unattributable to the error.

15. Jury Instructions: Proof: Appeal and Error. To establish reversible error from a court's refusal to give a requested jury instruction, an appellant has the burden to show that the tendered instruction is a correct statement of the law, that the tendered instruction was warranted by the evidence, and that the appellant was prejudiced by the court's refusal to give the tendered instruction.

16. Self–Defense. To successfully assert a claim of self-defense, one must have a both reasonable and good faith belief in the necessity of using force. In addition, the force used in defense must be immediately necessary and must be justified under the circumstances.

17. Jury Instructions: Evidence. The trial court is not required to give the instruction where there is insufficient evidence to prove the facts claimed; however, it is not the province of the trial court to decide factual issues even when it considers the evidence produced in support of one party's claim to be weak or doubtful.

18. Jury Instructions: Self–Defense: Evidence. It is only when the evidence does not support a legally cognizable claim of self-defense or the evidence is so lacking in probative value, so as to constitute failure of proof, that the trial court may properly refuse to instruct the jury on the defendant's theory of self-defense.

19. Appeal and Error. Plain error may be found on appeal when an error unasserted or uncomplained of at trial, but plainly evident from the record, prejudicially affects a litigant's substantial right and, if uncorrected, would result in damage to the integrity, reputation, and fairness of the judicial process.

20. Convictions: Weapons: Intent. When the felony which serves as the basis of the use of a weapon charge is an unintentional crime, the accused cannot be convicted of use of a firearm to commit a felony.

21. Jury Instructions: Pleadings: Evidence. Whether requested to do so or not, a trial court has the duty to instruct the jury on issues presented by the pleadings and the evidence. Because of this duty, the trial court, on its own motion, must correctly instruct on the law.

22. Jury Instructions: Proof: Appeal and Error. To establish reversible error from an erroneous jury instruction, a defendant has the burden to show that the instruction was prejudicial or otherwise adversely affected a substantial right of the defendant.

23. Criminal Law: Trial: Juries: Appeal and Error. Upon finding error in a criminal trial, the reviewing court must determine whether the evidence presented by the State was sufficient to sustain the conviction before the cause is remanded for a new trial.

24. Double Jeopardy: Evidence: New Trial: Appeal and Error. The Double Jeopardy Clause does not forbid retrial if the sum of the evidence offered by the State and admitted by the trial court, whether erroneously or not, would have been sufficient to sustain a guilty verdict.

Inbody, Chief Judge.

I. INTRODUCTION

William W. Matthews appeals his jury convictions in Hall County District Court for attempted first degree murder, two counts of terroristic threats, and three counts of use of a deadly weapon to commit a felony. Matthews assigns that the district court erred by not allowing certain witness testimony and in the jury instructions tendered to the jury.

II. STATEMENT OF FACTS

In August 2011, the State filed an information charging Matthews with six felonies involving several different victims in this case: count I, attempted first degree murder, and count II, use of a deadly weapon to commit a felony, involving a victim, Kevin Guzman; count III, terroristic threats, and count IV, use of a deadly weapon to commit a felony, involving a second victim, Maira Sanchez; and count V, terroristic threats, and count VI, use of a deadly weapon to commit a felony, involving a third victim, Mariel Betancourt. In August 2012, the matter went to a jury trial, which lasted several days and included the testimony of numerous witnesses.

On April 21, 2011, Frank Casita Moreno, a deacon at a church in Grand Island, Nebraska, was driving to a rehearsal at his church when he observed a large crowd of Hispanic men and women in the alley between 11th and 12th Streets and two other people standing near a garage in the same vicinity. Within that group, Moreno observed an individual waving a gun at a woman, and Moreno then called the 911 emergency dispatch service. Moreno circled his vehicle around the block to get a better look at the scene, and the group had moved to the center of the street, where a Caucasian man pulled out a gun, waved it, and fired shots at the group standing on the east side of the street near the garage. Moreno described the shooter as a Caucasian man with “dirty blond” hair, wearing a gray sweater or hoodie, whom Moreno identified as Matthews. Moreno saw that the first man he observed with a gun still had the gun out, but that it was at his side and no longer pointed at the woman.

Helen Whitefoot also observed some of the activity discussed above on that day, indicating at trial that she saw guns waving and heard screaming, yelling, and an “intense” argument which led her to call 911. Whitefoot was waiting in a vehicle with her mother in the area and testified that she was looking down the alley toward Eddy Street when she noticed a male and female arguing and yelling and the male lifting his shirt to “flash the gun.” Whitefoot explained that the couple was standing on the sidewalk near the front of a garage. Whitefoot testified that the man on the side of the street near the garage yelled, “ ‘Bring it on ... I'm packing,’ ” and removed a gun from his waistband, pointing it in the direction of the other side of the street. As she was dialing 911, two individuals ran into the middle of Eddy Street and one of them started shooting a gun into the air. Whitefoot saw one man fire one shot into the air, then drop the gun down to “chest level” and point and shoot the gun at the male and female couple near the garage. Whitefoot first testified that she could not remember what the couple was doing at the time shots were fired, because she was focused on the man with the gun in the air. S...