State v. Stabler
| Decision Date | 27 March 2020 |
| Docket Number | No. S-19-360.,S-19-360. |
| Citation | 940 N.W.2d 572,305 Neb. 415 |
| Parties | STATE of Nebraska, appellee, v. Eddy D. STABLER, appellant. |
| Court | Nebraska Supreme Court |
Joseph D. Nigro, Lancaster County Public Defender, Shawn Elliott, and Ella Newell, Senior Certified Law Student, for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss, Lincoln, for appellee.
Defendant Eddy D. Stabler was convicted by a jury of second degree assault and use of a deadly weapon to commit a felony. He was sentenced to a total of 15 to 25 years’ imprisonment. He appeals. We affirm.
Stabler and the victim, Jacinda Stabler, were married and resided together on B Street in Lincoln, Nebraska, with their four children and the children of each of them from previous relationships with other individuals. In April 2016, Jacinda filed for divorce. Stabler moved out of the family home to live with his sister, who resided elsewhere in Lincoln.
At approximately this same time, Stabler began communicating via electronic messaging with a relative, Athea Stabler. Stabler and Athea were both members of the Omaha Tribe, and Athea lived in Macy, Nebraska.
As part of a cooperation agreement, Athea testified at trial as to her role in Jacinda’s assault. According to Athea’s testimony, in Stabler’s messages, which she later deleted, Stabler told Athea that Jacinda had been "cheating on" him and asked Athea whether she would "handle the situation." Though by all indications Athea did not know Jacinda, she agreed to help Stabler because she viewed Jacinda as a threat to the family.
On May 28, 2016, Athea came to Lincoln to attend an event at a community center. While at this event, Athea communicated with Stabler, again via electronic messaging, who wondered if "she" was at the event. Athea took "she" to mean Jacinda. Athea told Stabler that "she" was not in attendance. Stabler then asked whether Athea was staying overnight. Athea indicated that she was driving back to Macy with her mother and stepfather. At this, Stabler invited Athea to a family birthday party at a local bar and offered to drive her back to Macy the next day "if u can handle this." Athea testified that she understood "this" to refer to assaulting Jacinda. Athea agreed, and Stabler and Athea established general terms for payment—"Yeah give u sum cash r sun chit either way half an half we can talk about it"—which Athea explained meant she was to earn some combination of money and drugs. Unlike the earlier messages, these messages were not deleted and are part of the record.
At the conclusion of the event at the community center, Athea met with Stabler and others at the home of Stabler’s sister to attend the birthday party. Athea testified that she spoke alone with Stabler prior to leaving for the party and that Stabler indicated, in conformity with his and Athea’s electronic messaging communications, that Athea was to assault Jacinda that night. According to Athea’s testimony, Stabler told Athea to "leave a scar on [Jacinda’s] face and to cut off her mane." In return, Athea was to be paid $400 and 4 grams of methamphetamine.
After attending the birthday party, Stabler and Athea dropped another partygoer off at the home of Stabler’s sister, then went to a different location to "get high." During the car ride to the other location, Stabler gave Athea a knife.
At some point, Stabler and Athea went to yet another home. Athea testified that the individuals who lived in that home drove her to Jacinda’s house and waited in the car while Athea was inside. Athea located Jacinda in the home, where she was sleeping in a bed with some of her children. That Jacinda was with her children gave Athea pause, and she testified that she decided only to threaten Jacinda. As such, she put the knife to Jacinda’s throat; this woke Jacinda, who began screaming. Athea grabbed Jacinda by her hair and began to hit her. Jacinda fought back and kicked at Athea, so Athea began stabbing Jacinda and tried to cut off her hair. Having stabbed Jacinda, though not cut her hair, Athea fled the house, dropping the knife on her way out.
Over the next few months, Stabler and Athea continued to communicate via electronic messaging. As with the messages sent on the day of the assault, these later messages are in the record. According to Stabler, the messages, reprinted in relevant part below, can be explained because Athea was seeking drugs. However, Athea testified that she initiated contact and attempted to meet with Stabler because she felt she was "gypped" by the compensation she received from Stabler for assaulting Jacinda. Athea further testified that she had received "some meth" and "just a hundred dollars," when she was promised $400 and more methamphetamine than she ultimately received. Athea did not think she would be successful simply telling that to Stabler, so she wanted to force a face-to-face meeting with him.
During the course of these messages, Athea told Stabler that She also messaged, On another occasion, Stabler warned Athea, "Dude the cops ... relax k" and "I got u ... u have my word." In response, Athea asked, "Any Updates With The Investigation?" Stabler informed Athea that "jacinda is pointing fingers at me ... lol ... I got this shit I tel u more in person u just relax as best u can." Athea responded, On yet another occasion, Athea asked for news updates. Stabler said that there were no updates, but that that was good news, and that the police were "Looking for a 6’ft tall 230lbs Mexican male," to which Athea responded, Stabler then replied, "Lol ... shhh hit me up when ur in town."
Meanwhile, shortly after the assault, law enforcement received an anonymous tip that Athea had assaulted Jacinda. Athea was eventually questioned while being held on other charges. Athea admitted to assaulting Jacinda, but said that she would not have done so absent the arrangement with Stabler. Athea was convicted of second degree assault and sentenced to 18 to 20 years’ imprisonment.
Stabler was found guilty on both counts. He appeals.
Stabler assigns as error that the district court erred by (1) failing to give a limiting instruction when requested in response to the State’s improper burden-shifting argument during rebuttal, (2) prohibiting Stabler from explaining that his prior convictions were for forgery, (3) failing to instruct the jury on the lesser-included offense of third degree assault, (4) finding that the evidence was sufficient to sustain Stabler’s convictions, and (5) imposing excessive sentences.
Whether the jury instructions given by a trial court are correct is a question of law.1 When reviewing questions of law, an appellate court resolves the questions independently of the conclusion reached by the lower court.2
Regardless of whether the evidence is direct, circumstantial, or a combination thereof, and regardless of whether the issue is labeled as a failure to direct a verdict, insufficiency of the evidence, or failure to prove a prima facie case, the standard is the same: 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 evidence admitted at trial, viewed and construed most favorably to the State, is sufficient to support the conviction.3
An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court.4
Stabler first assigns that statements made by the State in rebuttal closing arguments effectively shifted the burden of proof from the State to the defense and that the district court erred in not giving a limiting instruction to correct this burden shifting.
To establish reversible error from a court’s refusal to give a requested instruction, an appellant has the burden to show that (1) the tendered instruction is a correct statement of the law, (2) the tendered instruction is warranted by the evidence, and (3) the appellant was prejudiced by the court’s refusal to give the tendered instruction.5
As relevant to this assignment of error, the record shows that during the State’s case in chief, it offered the testimony of one of the investigating officers. That officer testified that the police were able to locate just one of the two individuals who drove Athea to Jacinda’s home and that the individual refused to speak with them.
During closing arguments, defense counsel noted that the State was not able to produce any witnesses to corroborate Athea’s testimony, including either of those two individuals. Defense counsel then noted that though the State claimed that neither individual would cooperate, it was "not an excuse" and did not change the State’s burden of proof.
In response to this, the State commented in its rebuttal argument that it "[did not] deny [that] it’s [the State’s] burden to prove this case beyond a reasonable doubt, but parties have the power to subpoena, both parties have the power to compel witnesses," apparently suggesting that Stabler, too, could have called these witnesses. Defense counsel objected at this point and requested the jury to be instructed that the burden never shifts to the defendant. The district court sustained the objection and noted, "The comments of the State are stricken from the record, and the jury is not to consider those comments."
On appeal, Stabler argues that the district court erred in not...
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