State v. Nolan
| Decision Date | 20 January 2012 |
| Docket Number | No. S–10–1011.,S–10–1011. |
| Citation | 283 Neb. 50,807 N.W.2d 520 |
| Parties | STATE of Nebraska, appellee, v. Joshua W. NOLAN, appellant. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court
1. Constitutional Law: Search and Seizure: Motions to Suppress: Appeal and Error. In reviewing a trial court's ruling on a motion to suppress based on a claimed violation of the Fourth Amendment, an appellate court applies a two-part standard of review. Regarding historical facts, an appellate court reviews the trial court's findings for clear error. But whether those facts trigger or violate Fourth Amendment protections is a question of law that an appellate court reviews independently of the trial court's determination.
2. Investigative Stops: Motor Vehicles: Probable Cause. A traffic violation, no matter how minor, creates probable cause to stop the driver of a vehicle.
3. Investigative Stops: Police Officers and Sheriffs: Probable Cause. If an officer has probable cause to stop a violator, the stop is objectively reasonable, and any ulterior motive on the officer's part is irrelevant.
4. Investigative Stops: Motor Vehicles: Police Officers and Sheriffs. Once a vehicle has been lawfully detained for a traffic violation, police officers may order the driver out of the vehicle.
5. Investigative Stops: Motor Vehicles: Police Officers and Sheriffs. In order to justify a pat-down of a person during a traffic stop, the police must still harbor reasonable suspicion that the person subjected to the frisk is armed and dangerous.
6. Identification Procedures: Due Process: Appeal and Error. A district court's conclusion whether an identification is consistent with due process is reviewed de novo, but the court's findings of historical fact are reviewed for clear error.
7. Constitutional Law: Identification Procedures: Due Process. The Due Process Clause does not require a preliminary judicial inquiry into the reliability of an eyewitness identification when the identification was not procured under unnecessarily suggestive circumstances arranged by law enforcement.
8. Identification Procedures: Police Officers and Sheriffs: Motions to Suppress. Suppression of identification evidence on the basis of undue suggestion is appropriate only where the witness' ability to make an accurate identification is outweighed by the corrupting effect of improper police conduct.
9. Trial: Identification Procedures. When no improper law enforcement activity is involved, it suffices to test the reliability of identification testimony at trial, through the rights and opportunities generally designed for that purpose, such as the rights to counsel, compulsory process, and confrontation and cross-examination of witnesses.
10. 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 discretion a factor in determining admissibility.
11. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court, an appellate court reviews the admissibility of evidence for an abuse of discretion.
12. Rules of Evidence: Other Acts. Bad acts that form the factual setting of the crime in issue or that form an integral part of the crime charged are not covered under Neb. Evid. R. 404(2), Neb.Rev.Stat. § 27–404(2) (Reissue 2008).
13. Criminal Law: Evidence. Intrinsic evidence, or evidence necessary to tell a complete story of the crime, is admissible to provide the context in which the crime occurred.
14. Rules of Evidence: Presumptions. All evidence offered by the State is presumably prejudicial to the defendant; otherwise, it would be irrelevant, and would be inadmissible. But, in order for evidence to be excluded under Neb. Evid. R. 403, Neb.Rev.Stat. § 27–403 (Reissue 2008), the objecting party must prove that the danger of unfair prejudice substantially outweighs any probative value.
15. Trial: Evidence: Appeal and Error. A court must determine whether there is sufficient foundation evidence for the admission of physical evidence on a case-by-case basis. Because authentication rulings are necessarily fact specific, a trial court has discretion to determine whether evidence has been properly authenticated. An appellate court reviews a trial court's ruling on authentication for abuse of discretion.
16. Rules of Evidence: Hearsay: Presumptions. Evidence admitted pursuant to the business records exception to the rule against hearsay is presumed to be trustworthy.
17. Rules of Evidence: Hearsay. If foundation is laid for the business records exception, then the authentication requirements of Neb. Evid. R. 901, Neb.Rev.Stat. § 27–901 (Reissue 2008), are also met.
18. Judges: Recusal: Appeal and Error. A motion to disqualify a trial judge on account of prejudice is addressed to the sound discretion of the trial court. An order overruling such a motion will be affirmed on appeal unless the record establishes bias or prejudice as a matter of law.
19. Judges: Recusal. A judge shall be disqualified if a reasonable person who knew the circumstances of the case would question the judge's impartiality under an objective standard of reasonableness, even though no actual bias or prejudice was shown.
20. Judges: Recusal: Presumptions. A defendant seeking to disqualify a judge on the basis of bias or prejudice bears the heavy burden of overcoming the presumption of judicial impartiality.
21. Jury Instructions: Judgments: Appeal and Error. Whether jury instructions given by a trial court are correct is a question of law. 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.
22. Convictions: Evidence: Appeal and Error. When reviewing a criminal conviction for sufficiency of the evidence to sustain the conviction, the relevant question for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
23. Convictions: Evidence: Appeal and Error. 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. Those matters are for the finder of fact.
24. Intent: Words and Phrases. Deliberate means not suddenly, not rashly, and requires that the defendant considered the probable consequences of his or her act before doing the act.
25. Homicide: Intent: Time: Words and Phrases. The term “premeditated” means to have formed a design to commit an act before it is done. One kills with premeditated malice if, before the act causing the death occurs, one has formed the intent or determined to kill the victim without legal justification. No particular length of time for premeditation is required, provided that the intent to kill is formed before the act is committed and not simultaneously with the act that caused the death.
26. Effectiveness of Counsel. A claim that defense counsel provided ineffective assistance presents a mixed question of law and fact.
27. Effectiveness of Counsel: Appeal and Error. When reviewing a claim of ineffective assistance of counsel, an appellate court reviews the factual findings of the lower court for clear error.
28. Effectiveness of Counsel: Records: Trial: Evidence: Appeal and Error. A claim of ineffective assistance of counsel need not be dismissed merely because it is made on direct appeal. The determining factor is whether the record is sufficient to adequately review the question.
29. Effectiveness of Counsel: Proof. 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.
Brian S. Munnelly for appellant.
Jon Bruning, Attorney General, and James D. Smith, Lincoln, for appellee.
Joshua W. Nolan, the appellant, was charged with first degree murder and use of a deadly weapon to commit a felony in connection with the killing of Justin Gaines. At trial, the State contended that Gaines had been visiting with a family friend in the driveway of an Omaha, Nebraska, home when Nolan and Trevelle J. Taylor, Nolan's accomplice, shot and killed him. Nolan, relying primarily on inconsistencies among the statements and testimony of the State's witnesses, argued that there was a reasonable doubt as to whether Nolan had shot and killed Gaines. A jury convicted Nolan of both charges, and he appeals. We find no merit to Nolan's various assignments of error, and affirm his convictions and sentences.
The events leading up to Gaines' death began on the morning of September 19, 2009, the day of the shooting. Joshua Kercheval testified that at around 11:30 a.m. that day, Taylor and Nolan had shown up at his house and that Kercheval drove Taylor and Nolan around Omaha. Kercheval explained that Taylor asked him to drive, although Kercheval was not told where to go. Kercheval ended up driving them around town for roughly 30 minutes before deciding to drive to a gas station near 72d Street and Ames Avenue. Video surveillance from the gas station places the three of them at the gas station from 1:21 to 1:30 p.m. Kercheval testified that when they left the gas station, he began driving back toward his house. But as they approached the intersection of 45th and Vernon Streets, Taylor told Kercheval to stop the car and Nolan and Taylor both got out. At that point, Kercheval parked the car and was sitting in the car texting on his telephone when he heard a number of...
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