State v. Robinson, S-05-326.

CourtSupreme Court of Nebraska
Citation271 Neb. 698,715 N.W.2d 531
Docket NumberNo. S-05-326.,S-05-326.
PartiesSTATE of Nebraska, appellee, v. Danny R. ROBINSON, Jr., appellant.
Decision Date09 June 2006

Thomas C. Riley, Douglas County Public Defender, for appellant.

Jon Bruning, Attorney General, and Kevin J. Slimp for appellee.




Danny R. Robinson, Jr., was convicted of first degree murder, use of a deadly weapon to commit a felony, and possession of a deadly weapon by a felon. He appeals the convictions and the sentences imposed.


The decision whether to grant a motion for mistrial is within the trial court's discretion and will not be disturbed on appeal in the absence of an abuse of discretion. State v. Aguilar, 268 Neb. 411, 683 N.W.2d 349 (2004).

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. Such matters are for the finder of fact, and a conviction will be affirmed, in the absence of prejudicial error, if the properly admitted evidence, viewed and construed most favorably to the State, is sufficient to support the conviction. State v. Aldaco, 271 Neb. 160, 710 N.W.2d 101 (2006).

Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach an independent conclusion irrespective of the determination made by the court below. State v. Griffin, 270 Neb. 578, 705 N.W.2d 51 (2005).

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 such discretion a factor in determining admissibility. State v. Wisinski, 268 Neb. 778, 688 N.W.2d 586 (2004). Where the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court, the admissibility of evidence is reviewed for an abuse of discretion. Id.


On January 13, 2001, Dupree Reed and his brother Terez Reed attended a party in Omaha, Nebraska. A confrontation occurred between two street gangs, and shots were fired. Terez died as a result. On the way to Terez' funeral on January 22, Robinson told Courtney Nelson and James Edwards that he thought Gary Lockett had murdered Terez.

After Terez Reed's funeral, friends and relatives gathered at the home of his aunt. A few hours later, Dupree Reed left the gathering and got into a green Chevrolet Tahoe driven by Robinson. At trial, Dupree described three other people who were in the Tahoe by their gang names: Killer C (Nelson), Boomerang (Edwards), and B Dub (Antonio Witherspoon). Dupree stated that while he was riding in the Tahoe, Robinson said he knew who killed Terez. Robinson was referring to Gary Lockett, whose gang name was "Pipe." As the Tahoe passed a house located in North Omaha, Robinson said, "That's the house that they be at."

Robinson parked the Tahoe, and he and Dupree Reed got out. They approached the above-mentioned house by crossing various yards. According to Dupree, he stayed back by the alley while Robinson jumped a fence and "went on the side [of the house] by the window." Robinson was standing on something, but Dupree could not see what it was. Dupree testified that Robinson was "[r]ight up close" to the house and was looking in the window.

Dupree testified that as he and Robinson walked toward the house, he knew they were going to "shoot it up" because that is what they had said in the Tahoe earlier when they drove past the house. Dupree said that Robinson shot first and that he then started firing. Dupree had a.22-caliber handgun, and he fired six or seven shots at the house. He quit firing because his gun jammed, but Robinson was still shooting. According to Dupree, when they returned to the Tahoe, "[Robinson] said, he'd kill us if we say anything."

Edwards testified that while he waited in the Tahoe, he heard numerous shots fired. He heard different noises that did not sound like they all came from one gun. Edwards said that after he heard the gunfire and saw flashes from the guns, Dupree Reed and Robinson came running back to the Tahoe. When Robinson got into the Tahoe, Edwards saw a 9-mm Beretta gun in Robinson's hands. Edwards noticed that Robinson's weapon had fired all its rounds because it was "cocked all the way back." He said Reed had a .22-caliber "German-style looking gun." Edwards claimed to be familiar with guns and to have fired them before. Edwards told Robinson that he was not happy with Robinson, and Robinson said, "Don't tell nobody." Edwards testified: "He, like, threatened to kill people or whatever."

Nelson testified that he met Robinson in 1993 and that at that time, Robinson claimed to be affiliated with the "Hilltop Crips" gang. Nelson said he left the funeral reception for Terez Reed in the green Tahoe driven by Robinson. He saw Robinson with a 9-mm handgun, and he saw Dupree Reed with a .22-caliber automatic handgun.

Daniel Lockett was the victim of the above-described shooting. As he was bending down to put on his shoes in the living room of his mother's house in North Omaha, he was shot. Lockett's sister, Teresa Mountain, who was also in the living room, heard at least 15 or 20 shots fired. The gunfire which came through the side window in the front of the house sounded different than the shots she heard in the back. She heard the shots in the front before she heard shots from the back. After the shooting, Mountain shook Daniel, but he did not respond. According to Mountain, Gary Lockett was not in the house at the time of the shooting.

Daniel Lockett died as a result of the incident described above. He sustained four gunshot wounds: one to the right shoulder, two to the right side of his chest, and one to the right forearm. One of the bullets passed through the upper lobe of Lockett's right lung and then through his heart.

Omaha police observed nine bullet holes in the window in the front of the house where the Lockett shooting occurred. Shell casings from a 9-mm handgun and bullet fragments found at the scene were determined to have been fired by the same 9-mm weapon. The bullets retrieved from Lockett's body were most consistent with having been fired from a 9-mm handgun. The police suspected that Daniel Lockett's murder could have been in retaliation for the murder of Terez Reed.

Robinson was subsequently charged with first degree murder in the death of Daniel Lockett, use of a deadly weapon to commit a felony, and possession of a deadly weapon by a felon. Following a jury trial, Robinson was convicted and sentenced to life imprisonment without parole on the murder charge and two consecutive sentences of 5 to 10 years' imprisonment on the use and possession charges. Other facts will be presented as they relate to the individual assignments of error.


Robinson claims, summarized and renumbered, that the trial court erred when it (1) denied Robinson's motion for mistrial; (2) allowed the State to introduce evidence of Robinson's going to Houston, Texas, and destroying the Tahoe; (3) denied Robinson's motion for further discovery and allowed Courtney Nelson, a jail-house informer, to testify over Robinson's objection; (4) precluded evidence of a deal between James Edwards, a prosecution witness, and the government, as well as evidence that Edwards was with Gary Lockett when Gary Lockett was shot in an incident not related to the case at bar; (5) precluded Robinson from presenting the testimony of Gary Lockett and Terrell Reed; (6) excluded evidence concerning the alibi of Terrell Reed and Keelan Washington; (7) precluded Robinson from presenting the testimony of Victor Hill, an unavailable witness; (8) violated Robinson's constitutional rights of due process, confrontation, and compulsory process by preventing him from presenting a complete defense; and (9) overruled Robinson's objection during the State's closing argument resulting in facts not in evidence being presented to the jury. Robinson also claims the accumulation of errors requires that the convictions be reversed and the cause remanded for a new trial.


Robinson claims reversible error in the denial of his motion for mistrial. The decision whether to grant a motion for mistrial is within the trial court's discretion and will not be disturbed on appeal in the absence of an abuse of discretion. State v. Aguilar, 268 Neb. 411, 683 N.W.2d 349 (2004). Robinson's theory of the case was that Dupree and Terrell Reed murdered Daniel Lockett and that Keelan Washington had driven Dupree and Terrell Reed to and from the house where Lockett was shot. The State's theory was that Robinson and Dupree Reed shot into the house where they believed Gary Lockett was located, in retaliation for Terez Reed's death. Gary Lockett was a member of the "29th Street Bloods" gang and was a suspect in the shooting death of Terez Reed.

At the commencement of the present trial, the State told the jury that it would hear about gangs and the gangster lifestyle, including acts of retaliation. The State claimed the evidence would show that Robinson was a member of the "Hilltop Gangster Crips" in 2001 and that he planned to kill Gary Lockett in retaliation for the death of Terez Reed. The State claimed that the shooting occurred because Robinson believed that Gary Lockett, a rival gang member, had killed Terez Reed.

In its opening statement, the defense told the jury there was no question but that Daniel Lockett's death was the result of previous actions by other individuals. The defense claimed that...

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