State v. Robinson

Citation724 N.W.2d 35,272 Neb. 582
Decision Date01 December 2006
Docket NumberNo. S-05-107.,S-05-107.
PartiesSTATE of Nebraska, Appellee, v. Edward ROBINSON, Jr., Appellant.
CourtSupreme Court of Nebraska

Susan M. Bazis, of Bazis Law Offices, P.C., L.L.O., for appellant.

Jon Bruning, Attorney General, and Kimberly A. Klein for appellee.




The defendant, Edward Robinson, Jr., was charged with first degree murder and use of a deadly weapon to commit a felony in connection with the killing of the victim, Herbert Fant. The State contended, at trial, that the victim had been in an argument with the defendant's wife and that as a result, the defendant was angry with the victim. This, according to the State, culminated in a fight in the parking lot of a Popeyes restaurant in Omaha that ended with the fatal shooting of the victim. At trial, the defendant, relying primarily on inconsistencies among the statements and testimony of the State's witnesses, argued that there was a reasonable doubt as to whether the defendant had been the victim's killer. The defendant was convicted of both charges and appeals from his convictions and sentences.


Parisee Fant (Parisee), the victim's wife, testified that at the time of the killing, she and her husband had been having difficulties in their marriage. The two were avoiding each other by trying not to be home at the same time. Parisee testified that on February 24, 2003, Parisee and the victim were planning for him to move out of the residence. Parisee spoke to her cousin, Tiffany Newte, about the problems in her marriage. Newte was married to the defendant. Parisee testified that she and Newte were close and spoke often about "[p]roblems, kids, everything," including Parisee's relationship with the victim.

When Parisee spoke to Newte on February 24, 2003, Newte was angry at the victim because of Newte's belief that the victim had been unfaithful to Parisee. Parisee was also angry, and she spoke to the victim several times that day about the matter. Later that evening, sometime after 8:30, the victim came home and argued with Parisee, and the encounter turned physical. The victim was angry. A friend of the victim, whom Parisee did not know, came into the home and led the victim out. The two men left in the victim's vehicle, which Parisee identified as an orange "Chevy Malibu" with tinted windows that the victim had owned for about 3 or 4 weeks.

Before proceeding further, we note, for the sake of clarity, that witness identification of the makes and models of different vehicles was a significant issue in this case. For instance, although Parisee identified the victim's vehicle as a Malibu, it is identified inconsistently throughout the trial, by different witnesses, as a Chevrolet Malibu, Caprice, or Impala. More important, a white sport utility vehicle that was seen by witnesses leaving the scene of the killing was identified by several of those witnesses as a Cadillac Escalade, and at trial, an essential part of the State's theory of the case was that those witnesses had actually seen a white GMC Yukon Denali owned by the defendant's wife.

About 30 to 45 minutes after the victim and his friend left Parisee, Newte called Parisee, angry and "screaming" such that she was hard to understand. Parisee called the victim and spoke to him about Newte's call. At 11:05 p.m., Parisee received a call from Michael Whitlock, a friend of the victim. As a result of that call, Parisee went to a local hospital, where she was informed that the victim had been shot and killed.

Tasha Brye testified that beginning in November 2002, she had been in an intimate relationship with the victim. Brye spoke to the victim on her cellular telephone sometime between 10 a.m. and noon on February 24, 2003, and then spoke to him again at about 2 p.m. After Brye arrived home from work, she called the victim at around 5 p.m. Brye lived in a home near 30th Street and Ames Avenue, "[w]ithin a couple of blocks of the Popeyes" where the victim was killed. Brye went to a friend's house to play cards, and then received a telephone call from her mother informing Brye that Brye's home burglar alarm was sounding. Brye called the victim and asked him to meet her at her house, then she drove home, arriving at about 6:15 p.m. The victim met Brye at her home, she talked with him, and then they both left about 10 minutes after arriving.

The victim called Brye several more times that evening. Eventually, as a result of one of the telephone calls, Brye went to check on her home, and the victim arrived while she was there, at about 9:20 or 9:30 p.m. Brye described the victim as "furious." A few minutes later, the victim received a telephone call. The victim became more upset, and left. Brye called the victim again after he left, and they spoke briefly. Brye did not see the victim again before his death.

Daylan Dortch (Daylan) was a friend of the victim. In the afternoon of February 24, 2003, Daylan was at a house at 24th Street and Templeton Drive with his brother James Dortch (James), Whitlock, Andrew Cobb, another individual, and the victim. The house at 24th Street and Templeton Drive was a "hang-out spot" where Daylan and his friends played video games. Daylan testified that the victim seemed "frustrated." Daylan, Whitlock, Cobb, and the victim remained at the house smoking marijuana for a couple of hours, then "just went riding." Eventually, they returned to the house. The victim was using a cellular telephone, talking to someone Daylan believed to be the victim's girl friend. Daylan and the victim left again. Daylan testified that "[the victim] was kind of frustrated. He was like he needed somebody to ride with. I just rode with him." They took the victim's car, described by Daylan as an "orange Chevy Caprice," with four doors, and dark, tinted windows.

Daylan testified that they went to the house where the victim lived with Parisee, and Daylan waited outside in the car for about 20 minutes. When Daylan went up to the house to see what was happening, he found that the victim and Parisee were fighting. Daylan attempted to calm the victim, then left with him. Daylan testified that they took the "Interstate" to Florence Boulevard. The victim was "[r]eal frustrated then" and "real mad." The men arrived at a house on Florence Boulevard. Although Daylan was not able to be more specific about the location, other evidence established that Newte lived on Florence Boulevard, about a 7- to 10-minute drive northeast from the victim's residence.

Daylan said that after they arrived, the victim got out of the car, knocked on the door of the house, then knocked on the window. A female came to the window, and she and the victim began shouting at one another. The men left and returned to the house at 24th Street and Templeton Drive. The victim, Daylan, Whitlock, Cobb, James, and Damion Jackson were there at that time. The victim continued to use his telephone, and the others tried to calm him down. The victim said he did not want to stay, and although the others attempted to persuade him to stay, he left, accompanied by Jackson.

Later that evening, James received a telephone call from Shaquata Mayfield, who told James that the victim had been shot. James, Daylan, Cobb, and Whitlock got in a car and went directly to the scene of the killing. The police arrived and took all the men into custody for questioning.

Whitlock, a close friend of the victim, also testified regarding the events of February 24, 2003. Whitlock testified that on that afternoon, he, Daylan, and Jackson had been "[j]ust riding" with the victim in the victim's car. Whitlock identified the victim's vehicle as a burnt orange 1995 "Chevy Impala SS," with very dark, tinted windows. They returned to the house on 24th Street, and the victim and Daylan left again, then returned. Whitlock agreed that the victim seemed "pretty upset," both before the victim and Daylan left the house and after they returned.

Whitlock testified that after the victim and Daylan left, Whitlock received a call on his cellular telephone from the defendant. Whitlock testified that although he had known the defendant for some time, it was unusual for Whitlock to speak to the defendant. According to Whitlock, the defendant asked Whitlock for the location of the victim:

He just said — he asked where [the victim] was at and I was like, I don't know. He was like, Well, [the victim] came by my girl['s] house trippin' and callin' her all out of her name and disrespecting her, and I'm looking for him. I was like, Well, I can't give you the number, but I'll call you back.

The defendant hung up, and Whitlock called the victim. Ten or fifteen minutes later, the defendant called again. Whitlock said that "when he called, I said, Hello. He was like, Man, [the victim's] wrong for coming by my house disrespecting my girl like that. You don't go by nobody['s] house and disrespecting. And then he was like, I don't want to have to pop him." Whitlock testified that later, the defendant called again. "He said, Are you with [the victim]? And I said, What? And he said, Is you with your boy? Is you in that Impala? And then I said, No." Whitlock testified that 4 or 5 minutes later, James got the call that the victim had been shot. The men got into James' car and went to the scene. Whitlock called Parisee at that point.

Cellular telephone records entered into evidence generally supported the testimony given by the State's witnesses at trial, both with respect to when and to whom calls were made,...

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