State v. Pullens

• Decision Date: 15 July 2011
• Docket Number: No. S–09–588.,S–09–588.
• Citation: 800 N.W.2d 202,281 Neb. 828
• Parties: STATE of Nebraska, appellee,v.Stephen M. PULLENS, appellant.
• Court: Nebraska Supreme Court

281 Neb. 828

800 N.W.2d 202

STATE of Nebraska, appellee,

v.Stephen M. PULLENS, appellant.

No. S–09–588.

Supreme Court of Nebraska.

July 15, 2011.

Syllabus by the Court

1. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings under the residual hearsay exception, an appellate court reviews for clear error the factual findings underpinning a trial court's hearsay ruling and reviews de novo the court's ultimate determination to admit evidence over a hearsay objection.

2. Rules of Evidence: Hearsay: Appeal and Error. Because of the factors a trial court must weigh in deciding whether to admit evidence under the residual hearsay exception, an appellate court applies an abuse of discretion standard to hearsay rulings under the residual hearsay exception.

3. Rules of Evidence: Hearsay: Appeal and Error. An appellate court reviews for clear error the trial court's factual findings underpinning the excited utterance hearsay exception, resolving evidentiary conflicts in favor of the successful party, who is entitled to every reasonable inference deducible from the evidence.

4. Judgments: Appeal and Error. Under a clearly erroneous standard of review, an appellate court does not reweigh the evidence but considers the judgment in a light most favorable to the successful party, resolving evidentiary conflicts in favor of the successful party, who is entitled to every reasonable inference deducible from the evidence.

5. 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 and 27–404(2) (Reissue 2008), and the trial court's decision will not be reversed absent an abuse of discretion.

6. Trial: Evidence: Appeal and Error. Because authentication rulings are necessarily fact specific, a trial court has discretion to determine whether evidence has been properly authenticated, and an appellate court reviews a trial court's ruling on authentication for an abuse of discretion.

7. Jury Instructions: Appeal and Error. In reviewing a claim of prejudice from jury instructions given or refused, an appellate court must read the instructions together, and if, taken as a whole, they correctly state the law, are not misleading, and adequately cover the issues supported by the pleadings and evidence, there is no prejudicial error necessitating reversal.

8. Right to Counsel: Waiver: Appeal and Error. In determining whether a defendant's waiver of counsel was voluntary, knowing, and intelligent, an appellate court applies a “clearly erroneous” standard of review.

9. Criminal Law: Motions for Continuance: Appeal and Error. A decision whether to grant a continuance in a criminal case is within the discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion.

10. Rules of Evidence: Hearsay. For a statement to qualify as an excited utterance, the following criteria must be established: (1) There must have been a startling event, (2) the statement must relate to the event, and (3) the statement must have been made by the declarant while under the stress of the event.

11. Rules of Evidence: Hearsay. The underlying theory of the excited utterance exception is that circumstances may produce a condition of excitement which temporarily stills the capacity of reflection and produces utterances free of conscious fabrication.

12. Rules of Evidence: Hearsay. In making a preliminary determination that a shocking or startling event has taken place, a trial judge may consider hearsay evidence which itself fails to satisfy any exception.

13. Rules of Evidence: Hearsay. The true test in spontaneous exclamations is not when the exclamation was made, but whether under all the circumstances of the particular exclamation the speaker may be considered as speaking under the stress of nervous excitement and shock produced by the act in issue.

14. Rules of Evidence: Appeal and Error. Determinations of whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice and other considerations described in Neb. Evid. R. 403, Neb.Rev.Stat. § 27–403 (Reissue 2008), is a matter within the district court's discretion and will not be reversed on appeal absent an abuse of that discretion.

15. Rules of Evidence: Other Acts. The admission of prior bad acts involves three elements: (1) 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) the probative value of the evidence is substantially outweighed by its potential for unfair prejudice, and (3) the trial court, if requested, instructed the jury to consider the evidence only for the limited purpose for which it was admitted.

16. Rules of 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.

17. Criminal Law: Words and Phrases. Modus operandi is a characteristic method employed by a defendant in the performance of repeated criminal acts, or literally, a “method of working.”

18. Evidence: Other Acts. A prior bad act cannot be independently relevant for a proper purpose if that purpose was not at issue in the case.

19. Rules of Evidence: Other Acts. The rule governing the admissibility of evidence of other crimes, wrongs, or acts is subject to the overriding protection of Neb. Evid. R. 403, Neb.Rev.Stat. § 27–403 (Reissue 2008), allowing the exclusion of evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

20. Trial: Evidence. Most, if not all, evidence offered by a party is calculated to be prejudicial to the opposing party; only evidence tending to suggest a decision on an improper basis is unfairly prejudicial.

21. Rules of Evidence: Words and Phrases. For the purposes of Neb. Evid. R. 403, Neb.Rev.Stat. § 27–403 (Reissue 2008), unfair prejudice means an undue tendency to suggest a decision based on an improper basis.

22. Rules of Evidence: Other Acts: Time. While remoteness in time may weaken the value of prior bad acts evidence, such remoteness does not, in and of itself, necessarily justify exclusion of that evidence.

23. Criminal Law. For departure to take on the legal significance of flight, there must be circumstances present and unexplained which, in conjunction with the leaving, reasonably justify an inference that it was done with a consciousness of guilt and pursuant to an effort to avoid apprehension or prosecution based on that guilt.

24. Right to Counsel. Once the right to counsel attaches, the accused is entitled to counsel at every critical stage of the proceeding.

25. Right to Counsel. A defendant may not use his or her right to counsel to manipulate or obstruct the orderly procedure in the court or to interfere with the fair administration of justice.

26. Right to Counsel. Entitlement to the assistance of counsel and entitlement to the provision of counsel at public expense are different matters.

27. Right to Counsel: Waiver. A formalistic litany is not required to show that a waiver of the right to counsel was knowingly and intelligently made, and an intelligent waiver of the right to counsel can be inferred from conduct.

28. Presentence Reports: Waiver: Notice. A defendant waives his or her qualified right to review the presentence investigation report by not notifying the trial court that he or she has not personally reviewed the report and that he or she wishes to do so.

29. Effectiveness of Counsel. A defendant who elects to proceed pro se cannot thereafter complain of the quality of his or her own defense.

30. Trial: Effectiveness of Counsel: Evidence: Appeal and Error. An ineffective assistance of counsel claim will not be addressed on direct appeal if it requires an evidentiary hearing.

Thomas C. Riley, Douglas County Public Defender, and Timothy P. Burns for appellant.Stephen M. Pullens, pro se.Jon Bruning, Attorney General, and James D. Smith for appellee.HEAVICAN, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER–LERMAN, JJ.McCORMACK, J.

I. NATURE OF CASE

A jury found Stephen M. Pullens guilty of killing his mother, Matsolonia Myers (Matsolonia), by throwing her over a balcony. Pullens alleges that the trial court erred by allowing hearsay evidence of a prior attempt by Pullens to throw Matsolonia off a balcony, admitting into evidence 10 e-mails without proper authentication, and providing a jury instruction on voluntary flight when the evidence was insufficient to support that issue. Pullens also alleges that he was denied effective assistance of counsel at trial, that he was denied his right to counsel at his sentencing hearing after he demanded to proceed pro se, and that the trial court abused its discretion in sentencing him. We affirm.

II. BACKGROUND

Matsolonia died in the early evening hours of December 13, 2004, from injuries sustained after falling four stories off the balcony of her apartment in Omaha, Nebraska. It is undisputed that Pullens was the only witness. He had been staying with Matsolonia for approximately 1 week prior to the incident. It had been 4 years since their last visit, which ended in some acrimony. Pullens claimed that Matsolonia committed suicide.

1. The Fall

Pullens testified that during his visit, he noticed Matsolonia was acting withdrawn and depressed. He described in detail for the jury aspects of Matsolonia's life that might have contributed to her depression, including an alleged gambling problem. Pullens testified...