State v. Payne–McCoy
| Decision Date | 17 August 2012 |
| Docket Number | No. S–11–530.,S–11–530. |
| Citation | 818 N.W.2d 608,284 Neb. 302 |
| Parties | STATE of Nebraska, appellee, v. Euelaunda L. PAYNE–McCOY, appellant. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court
[284 Neb. 301]1. Criminal Law: Judgments: Appeal and Error. An appellate court will affirm a trial court's ruling that the defendant committed an uncharged extrinsic crime or bad act if, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found with a firm conviction the essential elements of the uncharged crime.
2. Rules of Evidence: Other Acts: Appeal and Error. It is within the discretion of the trial court to determine relevancy and admissibility of evidence of other wrongs or acts under Neb. Evid. R. 403 and 404(2), Neb.Rev.Stat. §§ 27–403 (Reissue 2008) and 27–404(2) (Cum.Supp.2010), and the trial court's decision will not be reversed absent an abuse of discretion.
3. 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.
4. Rules of Evidence: Proof. Under Neb. Evid. R. 404(3), Neb.Rev.Stat. § 27–404(3) (Cum.Supp.2010), before a court can admit evidence of an extrinsic act in a criminal case, the State must prove by clear and convincing evidence, outside the presence of the jury, that the defendant committed the extrinsic act.
5. Evidence: Words and Phrases. Clear and convincing evidence is that amount of evidence which produces in the trier of fact a firm belief or conviction about the existence of a fact to be proved.
6. Rules of Evidence: Other Acts. Evidence of other crimes which is relevant for any purpose other than to show the actor's propensity is admissible under Neb. Evid. R. 404(2), Neb.Rev.Stat. § 27–404(2) (Cum.Supp.2010).
7. Evidence: Words and Phrases. Evidence that is offered for a proper purpose is often referred to as having a “special” or “independent” relevance, which means that its relevance does not depend upon its tendency to show propensity.
8. Rules of Evidence: Other Acts: Appeal and Error. An appellate court's analysis under Neb. Evid. R. 404(2), Neb.Rev.Stat. § 27–404(2) (Cum.Supp.2010), considers (1) whether the evidence was relevant for some purpose other than to prove the character of a person to show that he or she acted in conformity therewith; (2) whether the probative value of the evidence is substantially outweighed by its potential for unfair prejudice; and (3) whether the trial court, if requested, instructed the jury to consider the evidence only for the limited purpose for which it was admitted.
9. Evidence: Other Acts. Other acts evidence may have probative value as to identity where there are overwhelming similarities between the other crime and the charged offense or offenses, such that the crimes are so similar, unusual, and distinctive that the trial judge could reasonably find that they bear the same signature.
10. Criminal Law: Words and Phrases. Motive is defined as that which leads or tempts the mind to indulge in a criminal act.
[284 Neb. 303]11. Rules of Evidence. Evidence that is admissible under Neb. Evid. R. 404(2), Neb.Rev.Stat. § 27–404(2) (Cum.Supp.2010), may be excluded under Neb. Evid. R. 403, Neb.Rev.Stat. § 27–403 (Reissue 2008), if its probative value is substantially outweighed by the danger of unfair prejudice.
12. Evidence. The probative value of evidence involves a measurement of the degree to which the evidence persuades the trier of fact that the particular fact exists and the distance of the fact from the ultimate issue of the case.
13. Evidence: Words and Phrases. Unfair prejudice means an undue tendency to suggest a decision based on an improper basis.
14. Trial: Evidence. Balancing the probative value of evidence against the danger of unfair prejudice is within the discretion of the trial court.
15. Trial: Evidence: Jury Instructions. In any situation in which a limiting instruction was given at the time evidence was introduced, NJI2d Crim. 5.3 must be given at closing if requested.
16. Double Jeopardy: Evidence: New Trial: Appeal and Error. The Double Jeopardy Clause does not forbid a retrial so long as the sum of all the evidence admitted by a trial court would have been sufficient to sustain a guilty verdict.
Thomas C. Riley, Douglas County Public Defender, Scott C. Sladek, Omaha, John L. Jedlicka, and Jessica P. Clark, for appellant.
Jon Bruning, Attorney General, and Carrie A. Thober, for appellee.
Euelaunda L. Payne–McCoy was charged with one count of possession of crack cocaine with intent to deliver and one count of criminal conspiracy. The conspiracy charge, as instructed, was that Payne–McCoy allegedly conspired with Lawrence Carbon to distribute crack cocaine. At trial, evidence of previous drug deals between a confidential informant and Payne–McCoy was admitted with a limiting instruction informing the jury that it could consider the evidence only for the purpose of identifying Payne–McCoy or to establish motive or intent. At the close of the case, the trial court denied defense counsel's oral motion to give the jury a written instruction on the limited use of evidence of Payne–McCoy's prior bad acts. The jury convicted Payne–McCoy on both counts, and the court sentenced her to consecutive terms of 4 to 8 years' imprisonment. Payne–McCoy appeals. For the reasons set forth herein, we reverse the judgments of conviction and remand the cause for a new trial.
We will affirm a trial court's ruling that the defendant committed an uncharged extrinsic crime or bad act if, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found with a firm conviction the essential elements of the uncharged crime. State v. Kofoed, 283 Neb. 767, 817 N.W.2d 225 (2012).
It is within the discretion of the trial court to determine relevancy and admissibility of evidence of other wrongs or acts under Neb. Evid. R. 403 and 404(2), Neb.Rev.Stat. §§ 27–403 (Reissue 2008) and 27–404(2) (Cum.Supp.2010), and the trial court's decision will not be reversed absent an abuse of discretion. State v. Torres, 283 Neb. 142, 812 N.W.2d 213 (2012).
Whether jury instructions given by a trial court are correct is a question of law. State v. Nolan, 283 Neb. 50, 807 N.W.2d 520 (2012). 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. Id.
In October 2008, Douglas Cook worked for the Omaha Police Department doing controlled buys of narcotics. Through an acquaintance, Cook had met a woman called Green Eyes, who was later identified as Payne–McCoy. At trial, Cook testified that he had known Payne–McCoy for over a year and had purchased crack cocaine from her over 20 times before October 2008.
Cook did not deal with Payne–McCoy except to purchase crack cocaine. Cook would call her cellular telephone and ask whether he could “meet up.” She would usually ask what “street” Cook was going to, which meant what dollar value of crack cocaine he wanted to purchase. For example, “30th Street” meant buying $30 of crack cocaine. Cook's deals with Payne–McCoy were always arranged using this code. After Cook called Payne–McCoy and talked about the amount of crack cocaine to be purchased, a meeting place would be arranged, usually selected by her. The meeting location varied from purchase to purchase, but Payne–McCoy would personally deliver the crack cocaine to Cook.
On October 24, 2008, Cook met police officers in order to arrange a controlled purchase of crack cocaine from Payne–McCoy. Cook called her, using the telephone number he had always used to contact her. Payne–McCoy answered the telephone and asked to what “street” Cook was going. Using the code, Cook indicated he wanted to purchase $30 of crack cocaine. She told Cook to go to the University of Nebraska Medical Center (UNMC). Cook was to call her once he arrived at UNMC. Officers kept Cook under surveillance as he drove to UNMC.
When Cook reached the vicinity of UNMC, he again called Payne–McCoy's telephone number. This time, a male voice, unknown to Cook, answered the telephone. The man, later identified as Carbon, directed Cook to a meeting place near UNMC. Cook drove where he was directed, and a white Cadillac pulled up behind his car. Carbon was the only person in the Cadillac. He exited the Cadillac and walked to the driver's side of Cook's car. Carbon handed Cook the crack cocaine, and Cook handed him $30. Cook did not recognize Carbon, but he recognized the Cadillac as Payne–McCoy's because she had driven the car to previous drug deals. Cook had given the police her license plate number. Cook did not see Payne–McCoy on October 24, 2008.
Shortly after the drug deal, the Cadillac, which was registered to Payne–McCoy, was stopped by Omaha police. The driver was identified as Carbon. He was driving on a suspended license, and marijuana was found in the Cadillac.
The next day, October 25, 2008, Payne–McCoy reported her white Cadillac stolen. An officer later spoke to Payne–McCoy. She and Carbon, who was her boyfriend, had driven to a pancake feed in separate vehicles, and when they left, she gave Carbon the keys to the Cadillac so he could get new tires. When Payne–McCoy went home, the side door of her house was open and Carbon's clothes were gone. The Cadillac was later recovered in Louisiana.
Payne–McCoy was charged with one count of possession of crack cocaine with intent to deliver and one count of criminal conspiracy. The instruction given to the jury regarding the conspiracy charge allowed the jury to consider whether...
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