State v. Quintana
| Decision Date | 12 January 2001 |
| Docket Number | No. S-99-1250., No. S-99-1249 |
| Parties | STATE of Nebraska, Appellee, v. David Lee QUINTANA, Appellant. |
| Court | Nebraska Supreme Court |
John H. Marsh, of Knapp, Fangmeyer, Aschwege, Besse & Marsh, P.C., Kearney, for appellant.
Don Stenberg, Attorney General, and Susan J. Gustafson, for appellee.
Appellant, David Lee Quintana, was convicted and sentenced to life imprisonment for first degree murder by intentionally aiding and abetting Jaime Rodriguez (Rodriguez) to commit the crime of robbery of Roger Baumann, during which robbery the death of Baumann resulted. Quintana was also sentenced to not less than 7 nor more than 15 years' imprisonment for his conviction of aiding and abetting the use of a firearm to commit a felony. Cases Nos. S-99-1249 and S-99-1250 were consolidated for oral argument and disposition in this court. This court took this case on direct appeal due to the imposition of a life sentence.
Quintana assigns that the trial court erred (1) in failing to dismiss the case when the evidence was insufficient to sustain a conviction as a matter of law, (2) in failing to grant a change of venue, (3) in failing to properly instruct the jury regarding the essential element of proximate cause, (4) in limiting Quintana's cross-examination of Abie Cash regarding alcohol use and/or arrest prior to trial, (5) in failing to properly instruct the jury regarding accomplice testimony, (6) in failing to grant a mistrial, (7) in permitting cumulative testimony regarding a statement by Quintana that he asked if Rodriguez had gotten Baumann's wallet, and (8) in not striking potential juror W.W. for cause.
On January 22, 1999, Quintana, along with his girl friend Wendy Grim and two other friends, Rodriguez and Tony Rodriguez (no relation), went to the Days Inn motel to visit Baumann. Tony Rodriguez testified that on the way to the motel, Quintana said that "[Baumann] had owed him some money, and he was going to get it." Quintana left a small pistol with Tony Rodriguez, and then Quintana and Grim went to Baumann's room. Tony Rodriguez and Rodriguez went to a nearby convenience store and then remained in the car. According to Grim's testimony, when Quintana and Grim entered the motel room, Baumann was there, but Quintana and Grim immediately became suspicious because there was another man talking on the telephone with his back toward them. Neither Quintana nor Grim knew the identity of this man. Quintana and Grim stayed only a few minutes and then left.
Testimony from several witnesses establishes that both Quintana and Grim believed that Baumann was a "narc" and were therefore angry and suspicious toward Baumann. Grim testified that she thought Baumann had violated his parole earlier and therefore should have been in jail. According to Cash, Quintana believed he was being set up. After Quintana and Grim left Baumann's motel room, they went to Rodriguez' house. Cash testified that Quintana called Baumann and asked him to meet at the "Chug a Lug" bar the following evening.
That next evening, Cash drove Quintana, Grim, Rodriguez, and Stacie Miller to the Chug a Lug bar. Later, they all went to Rodriguez' house, where Baumann "laid out some lines" of "meth" for Quintana, Grim, and Miller. Believing Baumann was a "narc," Quintana and Grim did not consume any methamphetamine. Shortly after 1 a.m., Quintana, Grim, and Rodriguez left to go to a party with Baumann in Baumann's pickup truck. Baumann drove, Quintana sat in the middle, Grim sat on Quintana's lap, and Rodriguez sat in the passenger seat next to the window. Grim was going to ride with Cash and Miller, but Quintana stated that he wanted her to go with him because Baumann would "think something's up." Grim testified that Quintana said to her that Baumann "was going to get fucked up." Cash testified that in talking to Quintana and Rodriguez before they all left to go to the party, the plan was that they were going to find out what Baumann was up to, and if he was up to no good, then they stated that they were going to "fuck him up," "take him," and "roll him." Cash also testified that "rolling" meant to take his money, drugs, and whatever he had on him.
Instead of going directly to the party, Baumann, Quintana, Grim, and Rodriguez went to the residence of Larry Kinkade, Jr., who allegedly owed Quintana some money. Grim testified that when they were driving to Kinkade's place, Quintana kept asking Grim to "scoot up" and to "get up" and to "move." Grim believed it was because she was sitting on Quintana's lap. Grim was later told by Quintana and Rodriguez that Quintana was passing a gun to Rodriguez.
When they arrived at Kinkade's residence, Rodriguez got out of the truck and then Quintana also got out and walked 20 to 30 feet away from it. Rodriguez got back in the truck for a second, then walked to the back of the truck. Baumann got out and asked, "[D]id you bring the beer?" Rodriguez said "no," and Baumann then stated something to the effect of "stupid fuckers" in response. At that time, Grim heard a "pop" and then Rodriguez jumped back into the truck. Rodriguez had shot Baumann. The State and the defense agree Rodriguez was the shooter. Quintana came back and asked, "[D]id you get the wallet?" Rodriguez then got out, got Baumann's wallet, and then got back into the truck and drove Quintana and Grim to the party. Grim started having anxiety attacks, and Quintana told Grim to forget about it or something was going to happen to her. Cash testified that at the party, Quintana took Cash into a back room and said "we killed him," but Cash did not take him seriously.
At around 6 a.m. on Sunday, the party was winding down and Grim talked to Quintana and Rodriguez about what they should do with Baumann's truck. Grim suggested dumping it in a nearby lake. They all decided to leave the party, and Quintana told Cash and Miller to follow them. Rodriguez drove Baumann's truck, along with Quintana and Grim, to the lake. The truck was dumped into the lake, and Quintana, Grim, Rodriguez, Cash, and Miller all went back to Rodriguez' residence. Quintana told Grim that he had gotten $110 out of Baumann's wallet, although he told Cash that there "wasn't shit in the wallet."
Grim testified that while at Rodriguez' house, it began to fill with smoke because everyone was in the kitchen burning Baumann's wallet in a pot. Tony Rodriguez testified that he was suspicious that Quintana and Rodriguez were involved in Baumann's death. Tony Rodriguez asked Rodriguez to step into his room and asked Rodriguez what was going on. Rodriguez said "we done it," then Rodriguez motioned with his hand, indicating that he had pulled the trigger. On that following Wednesday, Quintana and Rodriguez went over to Miller's house to dispose of the gun and also the clothes that Quintana and Rodriguez were wearing the night of the shooting. Miller then melted the gun down with his welder and burned the clothes. Quintana and Grim were arrested on January 28, 1999, after Baumann's body was discovered on January 24. Rodriguez was also arrested. Rodriguez was tried for first degree murder before Quintana's trial, and Rodriguez was acquitted.
Before trial, Quintana made a motion for a change of venue based on the publicity of the murder trial of Rodriguez and several newspaper articles which referred to Quintana's involvement in the murder of Baumann. Quintana argued that his refusal to testify in Rodriguez' trial, the fact that Rodriguez was acquitted, and the fact that Rodriguez' defense was that Quintana committed the murder meant that the public would believe Quintana must have committed the murder. The trial court stated that it believed Quintana's showing of publicity was not sufficient and stated that a showing that the publicity tainted the entire jury pool was also needed. The trial court, therefore, denied Quintana's request for change of venue and said that it would consider the subject again during actual jury selection. During the jury selection, Quintana renewed his motion for change of venue and the trial court overruled the motion.
During jury selection, Quintana asked to excuse prospective juror W.W. for cause. Juror W.W. had stated that he "kinda halfway" felt Quintana was guilty because of what he had read and heard about the case. Juror W.W. then agreed that Quintana was really innocent until proved guilty and that he would try to put aside the things he had read and heard about Quintana. The trial court denied Quintana's request to strike juror W.W. for cause. Quintana, therefore, had to use one of his peremptory challenges to remove juror W.W. from the jury.
At trial during the direct examination of Grim by the State, Grim testified that immediately after Rodriguez had shot Baumann, Quintana asked Rodriguez, "[D]id you get the wallet?" After a series of questions about the sequence of events, the State asked, Quintana objected as asked and answered, the trial judge overruled the objection, and Grim repeated the statement that Quintana had asked, "Did you get the wallet?" Quintana now argues that this is cumulative evidence. The State argues that the second question was asked to clarify when Quintana asked about the wallet in the sequence of events.
During the cross-examination of Cash, Cash was asked whether he had been arrested in July for making terroristic threats, which was after the crime in the present case. The State objected as to relevance, and the trial court sustained the objection. Quintana made an offer of proof and argued that the testimony was relevant because a pending criminal charge would go to Cash's bias or motive to cooperate with the State in his testimony. The trial court asked Cash if he had had...
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