State v. Mowell
| Decision Date | 12 December 2003 |
| Docket Number | No. S-03-009.,S-03-009. |
| Citation | 672 N.W.2d 389,267 Neb. 83 |
| Parties | STATE of Nebraska, Appellee, v. Jamie Earl MOWELL, Appellant. |
| Court | Nebraska Supreme Court |
Sean J. Brennan for appellant.
Jon Bruning, Attorney General, and Kevin J. Slimp, for appellee.
Jamie Earl Mowell was found guilty by a jury of second degree murder, use of a deadly weapon to commit a felony, and being a felon in possession of a firearm, in association with the shooting death of Jeremy Cade. After a motion for new trial was overruled, the district court sentenced Mowell to a term of imprisonment and Mowell appealed. This appeal involves Mowell's challenges to a number of the court's procedural and evidentiary rulings, as well as his challenges to the instructions given to the jury and the sufficiency of the evidence that led to his second degree murder conviction.
The evidence at trial revealed that in February 2002, Cade and Calvin Secrest were both residing at the Salvation Army's residential treatment facility in Lincoln, Nebraska. They became close friends and eventually left the treatment facility together. After leaving the treatment facility, Cade and Secrest began to spend a significant amount of time with Mowell. Cade's relationship with Mowell was often rocky and violent and essentially revolved around drug sales and drug use.
In the early afternoon of March 18, 2002, Cade and Secrest went to Mowell's apartment in search of methamphetamines (meth). They were driven to the apartment by Cade's girl friend, Angela Kosmicki. Upon arrival, Cade and Secrest went into Mowell's apartment, while Kosmicki stayed in the car. Secrest testified that Mowell welcomed them into the apartment, but Mowell testified that he had told Cade not to come to his apartment, and only let Cade and Secrest in because he believed the knock at the door was from someone else.
In any event, Cade and Secrest entered the apartment, and shortly thereafter, Secrest asked Kosmicki to join them inside. According to Secrest, Mowell stated that he was "really high" and asked Kosmicki to take Secrest to a grocery store to purchase a bag of syringes so they would be able to inject meth. At the time he left, Secrest stated that Cade and Mowell were getting along fine. Kosmicki, however, testified that Cade repeatedly requested meth from Mowell and that Mowell told Cade no, and to "back off" because he was too high.
Mowell testified that he wanted Cade and Secrest to leave his apartment, and repeatedly asked them to do so. According to Mowell, Cade refused and made repeated demands for meth. Mowell testified that after Secrest and Kosmicki left, Cade continued to demand meth, and an argument ensued because Mowell refused to provide Cade with meth. During this argument, Mowell claims that Cade repeatedly threatened him and stated that he was going to kill him. Mowell testified that he became scared and eventually gave Cade his remaining batch of meth. Moreover, Mowell stated that he offered to give Cade his compact disc player, personal digital assistant, and a scale for weighing meth. Cade, however, was not satisfied and, according to Mowell, continued to demand more meth, saying "this ain't over." At this time, two or three additional unidentified people entered Mowell's apartment.
According to Secrest, when he and Kosmicki returned, Cade was sitting across a small table from Mowell. Thereafter, Mowell began to break up "rocks" of meth. The recent entrants into the apartment then asked Mowell for syringes and went into Mowell's bathroom to use drugs.
At this point, the testimony of various witnesses differs in several respects. Secrest testified that while breaking up the rocks of meth, Mowell pulled out his gun, pointed it at Cade for a few seconds, and then shot him. Secrest testified that prior to the shooting, he did not hear any verbal exchange or argument between Cade and Mowell, nor was anyone standing or being loud. Moreover, Secrest stated that just prior to the shooting, Cade was looking at the floor with his hands on his lap and that Cade only looked up after the gun was pointed at him. Secrest also testified that Cade made no movements toward Mowell while the gun was pointed at him. During cross-examination, however, Secrest admitted that Mowell and Cade were talking immediately prior to the shooting and that Secrest had previously told the police that he heard Cade threaten to kill Mowell just prior to the shooting.
Kosmicki testified that prior to the shooting, Cade was complaining about the amount of meth Mowell gave him. Kosmicki also testified that Cade, while looking down at the drugs, stated that if the amount of drugs Mowell had given him was not enough, then he would kill Mowell. At that point, according to Kosmicki, Mowell pointed his gun at Cade. Kosmicki then told Cade not to worry because Mowell "is just fucking with you." A few seconds later, Kosmicki testified, the gun went off.
Mowell also testified that Cade continued to demand more meth and that he became angrier and more vocal with each demand. Mowell stated that the dispute culminated when Cade told him that "if this is not enough, I am going to kill you." Mowell testified that in response to this threat, he grabbed his gun, pointed it at Cade, and told him to leave. Mowell stated that Cade told him to go ahead and shoot and then made another threat on his life. According to Mowell, Kosmicki then said something which diverted his attention from Cade. Mowell testified that when he turned his attention back to Cade, Cade was moving toward him and reaching for the gun. Mowell stated that he pulled the trigger once, but only to stop Cade.
According to Secrest, after the shot was fired, Cade got up as if to beat up Mowell. Kosmicki also testified that Cade, after getting shot, moved toward Mowell as if he wanted to "kick [Mowell's] ass." Seeing Cade move toward him aggressively, Mowell ran out of the apartment. Kosmicki, Crystal Walsh (Mowell's girl friend who was in the bedroom throughout the incident), and the persons in the bathroom then left the apartment. According to Secrest, shortly after leaving, Mowell returned to the apartment and grabbed his backpack. Mowell testified that he returned to the apartment to call his mother, but only managed to grab his backpack before leaving the apartment.
Once downstairs, Walsh, Secrest, and Mowell jumped inside Kosmicki's car. Kosmicki then drove approximately one block to a nearby service station. After parking, Kosmicki told Mowell and Walsh to get out of the car. Secrest went to the pay telephone and dialed the 911 emergency dispatch service, while Mowell and Walsh proceeded up the alley behind the service station. Kosmicki drove Secrest back to the apartment so he could wave down the police and ambulance. Thereafter, Kosmicki returned to her home.
Mowell and Walsh eventually traveled to Sioux City, Iowa. Eleven days later—March 19, 2002—they were arrested by the Sioux City Police Department while coming out of a motel room in Sioux City. At the time of the arrest, Mowell had a black and yellow backpack in his possession.
Cade was pronounced dead on March 18, 2002, at 3:52 p.m. Along with the fatal gunshot wound to the chest, Cade suffered an injury to his right thumb. Expert testimony established that a bullet struck Cade's thumb before going through his sternum, pericardial sac, aorta, and right lung. The bullet eventually lodged in one of his ribs. The distance between the gun and Cade's shirt was approximately 3 to 5 feet when the gun was fired, and Cade's thumb was between 12 and 18 inches from the gun when it was hit by the bullet.
On May 22, 2002, Mowell was arraigned on information and charged with first degree murder (count I), use of a deadly weapon to commit a felony (count II), and being a felon in possession of a firearm (count III). Prior to trial, Mowell filed a motion to sever, requesting that the court try count III separately from counts I and II. A hearing on the motion was held September 5, and the court denied the motion on September 6.
The trial commenced on October 1, 2002. At trial, Mowell objected to the receipt of a number of exhibits, including exhibits 93 through 96 and 100. These exhibits were a few of the writings and drawings that were found in the notebooks inside of Mowell's backpack the day of his arrest. Mowell argued the exhibits were irrelevant, cumulative, and unfairly prejudicial. The trial court overruled Mowell's objections and admitted the exhibits into evidence.
After the State rested, Mowell moved to dismiss the charges. That motion was overruled. At the close of all the evidence, Mowell renewed his motion to dismiss, but the motion was overruled.
A formal jury instruction conference was held on October 10, 2002. The trial court's proposed jury instructions were discussed, and Mowell objected to instruction No. 4. Mowell's primary objection was in regard to the step instruction. Under the step instruction, the jury was instructed to separately consider the crimes of first degree murder, second degree murder, and manslaughter. The instruction stated that the crimes were to be considered in descending order, and only if the jury found the State had failed to prove first degree murder could the jury consider second degree murder, and so on. Essentially, Mowell argued that the jury should have been able to consider the three choices—first degree murder, second degree murder, and manslaughter—in any order. The trial court overruled Mowell's objection.
Mowell also tendered his own instructions. Relevant here, Mowell requested a choice of evils instruction, arguing that a felon should maintain the right of self-defense, including the right to possess a firearm. The court refused to give Mowell's proposed instruction.
On October 11, 2002, Mowell was...
To continue reading
Request your trial
-
State v. Iromuanya
...absent an abuse of discretion. State v. Davlin, ante, 272 Neb. 139, 719 N.W.2d 243 (2006); State v. Sanders, supra; State v. Mowell, 267 Neb. 83, 672 N.W.2d 389 (2003). (c) The testimony about Iromuanya's hairstyle on the day of the shooting was clearly irrelevant, as there was no issue in ......
-
State v. Hinrichsen
...v. Smith, 282 Neb. 720, 806 N.W.2d 383 (2011), and State v. Burlison, 255 Neb. 190, 583 N.W.2d 31 (1998).5 See, e.g., State v. Mowell, 267 Neb. 83, 672 N.W.2d 389 (2003) ; Jones, supra note 4.6 See Jones, supra note 4 (citing cases).7 Id.8 State v. Pettit, 233 Neb. 436, 445 N.W.2d 890 (1989......
-
State v. Bruna
...27-403 (Reissue 1995), and a trial court's decision regarding them will not be reversed absent an abuse of discretion. State v. Mowell, 267 Neb. 83, 672 N.W.2d 389 (2003). V. 1. EXCLUSION OF VIDEOTAPE Prior to trial, the State filed a motion in limine requesting that the court prohibit Brun......
-
State v. Smith
...245 Neb. 315, 512 N.W.2d 389 (1994). 26.State v. Smith, supra note 1, 19 Neb.App. at 720, 811 N.W.2d at 733, citing State v. Mowell, 267 Neb. 83, 672 N.W.2d 389 (2003). 27.Id., citing State v. Weaver, 267 Neb. 826, 677 N.W.2d 502 (2004). 28.Id., citing State v. James, 265 Neb. 243, 655 N.W.......
-
Appellate Practice in Nebraska: a Thorough, Though Not Exhaustive, Primer in How to Do it and How to Be More Effective
...to make offer of proof regarding contents of excluded videotape, defendant failed to preserve claimed error). 7. E.g., State v. Mowell, 267 Neb. 83, 93, 672 N.W.2d 389, 398 (2003) (quoting State v. Myers, 258 Neb. 308, 314, 603 N.W.2d 378, 390 (1999) (stating "the failure to object to instr......