State v. Thomas
| Decision Date | 13 August 2004 |
| Docket Number | No. S-03-257.,S-03-257. |
| Citation | 268 Neb. 570,685 NW 2d 69 |
| Parties | STATE OF NEBRASKA, APPELLEE, v. L.T. THOMAS, APPELLANT. |
| Court | Nebraska Supreme Court |
James Walter Crampton for appellant.
Jon Bruning, Attorney General, and Susan J. Gustafson for appellee.
In State v. Thomas, 262 Neb. 985, 637 N.W.2d 632 (2002) (Thomas I), this court affirmed L.T. Thomas' convictions for second degree murder, first degree assault, and two counts of use of a firearm to commit a felony. Concluding, however, that the evidence was insufficient to sustain a finding that Thomas was a habitual criminal, we vacated the sentences and remanded the cause to the district court for Douglas County with directions to conduct a new enhancement hearing and resentence Thomas. Id. Following our remand, Thomas filed a motion to recuse the judge to whom the case had been assigned and a motion in arrest of judgment. The district court denied both motions. After conducting an enhancement hearing pursuant to our mandate, the district court determined that Thomas was a habitual criminal and sentenced him accordingly. Thomas now appeals from these rulings.
The facts pertinent to this criminal prosecution are set forth in detail in Thomas I, and we summarize them here only to the extent necessary to provide context for the issues presented in this appeal. In June 1994, Thomas shot two men in a car who were near the Stage II lounge in Omaha. Thomas claimed that he shot at the men in self-defense after they had threatened him with a gun. The driver, Phillip White, was shot in the left leg and subsequently crashed into a building as he attempted to drive to a hospital at a high rate of speed. White later died as the result of the head injuries he received in the crash. The other man, Rafael Petitphait, was shot three times but survived.
Thomas was charged with first degree murder, first degree assault, and two counts of the use of a firearm to commit a felony. An amended information added a charge that Thomas was a habitual criminal. District Judge Stephen A. Davis presided over Thomas' trial, which was held from January 24 to February 7, 1995. Aybar Crawford testified for the State that he saw Thomas shoot the men in the car and that he did not see or hear either of the men threaten Thomas. On cross-examination, Crawford testified that no promises had been made to him in exchange for his testimony. During a recess, the State informed Thomas' counsel that Crawford had a pending felony conviction for which he was yet to be sentenced. On recross-examination, Crawford testified that he could not benefit from any leniency regarding the pending felony conviction because he would be returned to California for a probation violation. On redirect examination by the State, Crawford again denied that anyone had made any promises to him. The jury found Thomas guilty of the lesser-included offense of second degree murder, first degree assault, and two counts of use of a firearm to commit a felony.
At an enhancement hearing held on July 26, 1995, the State introduced certified copies of unsigned journal entries purporting to show that Thomas had two felony convictions: a 1989 conviction for attempted possession of a controlled substance with intent to deliver, for which he was sentenced to a prison term of 6 to 12 years, and a 1984 conviction for second degree assault, for which he was sentenced to a prison term of 18 to 24 months. The State also introduced "pen packs," or certified copies from the Department of Correctional Services, showing Thomas' commitment and discharge dates for both periods of incarceration, including his photographs and fingerprints. Judge Davis thereafter found Thomas to be a habitual criminal and sentenced him to prison terms of 20 years to life for second degree murder, 12 to 14 years for the use of a firearm to commit second degree murder, 12 to 14 years for first degree assault, and 10 to 12 years for the use of a firearm to commit first degree assault. All sentences were ordered to be served consecutively. Following his sentencing, Thomas filed a motion for new trial and two supplemental motions for new trial. He subsequently clarified his intent that the supplemental motions be considered as part of the original motion. All three motions were overruled.
Thomas' direct appeal was dismissed because his poverty affidavit was signed by trial counsel rather than by Thomas. See State v. Thomas, 4 Neb. App. xlix (No. A-95-1313, Jan. 9, 1996). In response to a motion for postconviction relief, he was granted a new direct appeal. The court did not consider Thomas' other grounds for postconviction relief. Thomas then concurrently filed an appeal from the postconviction order and a new direct appeal. His appeal of the postconviction order was dismissed without prejudice upon the State's motion for summary affirmance.
In the direct appeal, we affirmed all of Thomas' convictions but vacated his sentences because we determined that the evidence received at the enhancement hearing was insufficient to support a finding that Thomas was a habitual criminal. We therefore remanded the cause "with directions for a new enhancement hearing and for resentencing." Thomas I, 262 Neb. at 1016, 637 N.W.2d at 661.
Upon remand, the case was assigned to Judge Richard J. Spethman because Judge Davis had retired. Thomas filed a motion to recuse Judge Spethman on the ground that he had obtained information from sources outside the record by virtue of presiding over sentencing and parole revocation proceedings involving Crawford in 1995. Thomas also filed a motion to quash the information charging him with second degree murder on the ground that it was based upon an unconstitutional statute, a motion in arrest of judgment on the same ground, and a motion seeking a new trial or an evidentiary hearing on his postconviction claims.
At a hearing on the motion to recuse, the court received evidence consisting of the transcript from the 1995 proceedings involving Crawford over which Judge Spethman had presided. The transcript reflects that on May 3, 1994, Crawford pled guilty to a charge of possession of a controlled substance in exchange for the State's dismissing an identical charge filed as a result of a separate incident. Crawford remained free on bond pending his sentencing. That sentencing did not take place until May 31, 1995, over a year after Crawford's plea and subsequent to the conclusion of Thomas' trial. During Crawford's sentencing hearing, his attorney asked that he be placed on probation, in part because he had assisted the State by testifying at Thomas' trial. Crawford's attorney further related that as a result of that cooperation, Crawford was subjected to physical attacks and threats. In response, Judge Spethman stated:
I had you [Crawford] down for penitentiary time until such time as I found out, and I talked to the authorities about what you did in fact do and the risk that you put yourself in in doing it. I'm going to . . . give you one year [of probation]. I'm making it a short time to make it easier on you. . . .
Judge Spethman further stated that he
The evidence reflects that in November 1995, Crawford again appeared before Judge Spethman on a charge of parole violation. In reviewing the case history, the court was initially confused as to whether Crawford had been sentenced in May 1994 or May 1995. When his counsel clarified that the sentencing was in 1995, Judge Spethman stated:
That's what I thought, that we waited until about a year until we saw what your cooperation was like and it was fine. And that's the main reason I put you on probation. But you're not going to be able to ride that help that you gave the Omaha police any further, you know. You've got to do what all the other probationers do.
In support of the motion to recuse, Thomas' counsel argued that while Judge Spethman had done nothing improper in presiding over the Crawford proceedings, the information gained in those proceedings would make it improper for him to preside over Thomas' case following our remand. Judge Spethman stated on the record that he had no independent recollection of Crawford's case even after considering the transcript and that there was no reasonable basis for any claim of prejudice against Thomas with respect to the issues to be considered on remand from this court. He therefore overruled the motion to recuse.
The enhancement hearing was conducted on October 3, 2002. On the same day, Thomas filed a motion to reconsider the court's ruling on the motion for recusal or to grant Thomas a new trial on the recusal motion based on newly discovered evidence consisting of the deposition of Donald Schense, the prosecutor in Thomas' case. The motion alleged that the deposition showed that Schense had spoken to Judge Spethman about Crawford's cooperation and that Crawford had received a benefit for his cooperation. In considering this motion at the commencement of the enhancement hearing, the court requested a summary of Schense's deposition. Counsel for Thomas stated that he had taken Schense's deposition in the postconviction action and that Schense had indicated that he probably did talk to Judge Spethman regarding Crawford's cooperation. In response, Judge Spethman stated that he did not deny that the communication had occurred but concluded that it did not constitute grounds for his recusal in this case. The court therefore declined to receive Schense's deposition and overruled the motion for reconsideration. It also overruled Thomas' remaining pending motions, including the motion in arrest of judgment, reasoning that Thomas had failed to raise the issues presented in the motions at the trial level.
At the commencement...
To continue reading
Request your trial
-
State v. Iromuanya
...will be disturbed by an appellate court only if the sentences complained of were an abuse of judicial discretion. State v. Thomas, 268 Neb. 570, 685 N.W.2d 69 (2004); State v. Weaver, 267 Neb. 826, 677 N.W.2d 502 (2004). An abuse of discretion in imposing a sentence occurs when a sentencing......
-
State v. Gales
...entry signed by the judge and, thus, did not reflect the judicial act of rendering judgment. See id. See, also, State v. Thomas, 268 Neb. 570, 685 N.W.2d 69 (2004); State v. Coffman, 227 Neb. 149, 416 N.W.2d 243 Exhibit 229 amply satisfies the foregoing rules. It consists of the record of a......
-
State v. Johnson
...put ordinary people on notice of the prohibited conduct is a facial challenge to the constitutionality of the statute. State v. Thomas, 268 Neb. 570, 685 N.W.2d 69 (2004); State v. Hookstra, 263 Neb. 116, 638 N.W.2d 829 (2002) (challenge to statute, asserting that no valid application exist......
-
State v. Mata
...731 N.W.2d 570 (2007). 13. State v. Kula, 254 Neb. 962, 579 N.W.2d 541 (1998). 14. See Mata I, supra note 2. 15. See State v. Thomas, 268 Neb. 570, 685 N.W.2d 69 (2004). 16. See, Mata I, supra note 2 (explaining double jeopardy prohibitions); State v. White, 254 Neb. 566, 577 N.W.2d 741 (19......