State v. Thomas
| Decision Date | 11 January 2002 |
| Docket Number | No. S-00-1070.,S-00-1070. |
| Citation | 637 N.W.2d 632,262 Neb. 985 |
| Parties | STATE of Nebraska, Appellee, v. L.T. THOMAS, Appellant. |
| Court | Nebraska Supreme Court |
James Walter Crampton, Omaha, for appellant.
Don Stenberg, Attorney General, and Marilyn B. Hutchinson, Lincoln, for appellee.
L.T. Thomas was convicted of second degree murder, first degree assault, and two counts of use of a firearm to commit a felony. Following his conviction, Thomas filed a motion for new trial and two supplemental motions for new trial, all of which were overruled. Thomas was sentenced as a habitual criminal.
Thomas' direct appeal was dismissed because the poverty affidavit was signed by trial counsel rather than by Thomas. In response to a motion for postconviction relief, Thomas was granted a new direct appeal because trial counsel had provided ineffective assistance in filing the original direct appeal. Thomas' appeal from the postconviction proceedings was dismissed by this court upon the State's motion for summary dismissal. The matter is presently before this court on Thomas' new direct appeal.
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. Quintana, 261 Neb. 38, 621 N.W.2d 121 (2001).
In a criminal case, a motion for new trial is addressed to the discretion of the trial court, and unless an abuse of discretion is shown, the trial court's determination will not be disturbed. State v. Jacob, 253 Neb. 950, 574 N.W.2d 117 (1998).
On June 17, 1994, Thomas shot two men who were in a car near the Stage II lounge in Omaha, Nebraska. Phillip White, the driver, was shot in the left leg, and Rafael Petitphait, a passenger, was shot in the back, head, and left leg.
Following the shooting, White drove away at a high rate of speed. Shortly thereafter, the car ran over a curb and into a brick building at 24th Street and Patrick Avenue. White died of head injuries sustained in the automobile accident.
Prior to the shooting, Thomas met Demitrius Simpson and Russell Wills at the Stage II lounge. The group left the lounge and were standing near Thomas' car when a fight broke out between two women. Simpson attempted to stop the fight because he knew one of the women. White and Petitphait were among the crowd that gathered in the parking lot outside the lounge. As Petitphait also attempted to stop the fight, he was struck by a man who was later identified as Simpson. Petitphait stopped White from going after Simpson because White had a .22 caliber gun, which he always carried with him. The gun was not operational, Petitphait said.
After the fight, some of the bystanders teased Petitphait about not fighting back. Petitphait approached Simpson, and the two began to fight. Simpson said he was attacked by several of Petitphait's friends. Petitphait testified that he kept hitting Simpson until someone pulled him off. At some point in time, shots were fired into the air, and the crowd began to disperse.
Thomas testified that he was grabbed during the fight between Petitphait and Simpson and that someone pointed a gun at his head. As Thomas ran away, he heard shots fired. Thomas moved his car out of the parking lot, took his gun out of the trunk, and walked back to the scene of the fight. A car approached, and Thomas heard Petitphait say, "Blood, smoke that nigger." Thomas claimed that the driver waved a gun. Thomas testified that he ducked and then stood up and started shooting in self-defense.
Petitphait testified that as he and White were stopped at the traffic light at 30th and Bedford Streets, they heard gunshots coming from the rear of the car. When White realized Petitphait had been shot, he said he was going to drive to a hospital. As they drove away, White said he had also been shot. Shortly before the crash, White said he could not make it to the hospital. The car hit a curb and then crashed into a building. A gun was found on the floor of the driver's side of White's car. Testimony was presented to establish that White was speeding and that he was intoxicated.
Thomas was charged with first degree murder, first degree assault, and two counts of use of a firearm to commit a felony in the commission of the above felonies. An amended information was filed alleging that Thomas is a habitual criminal.
During jury selection, the State asked the panel if any prospective juror's family had ever been a victim of a violent crime or a crime in general, or if any prospective juror knew anyone (friend, family, or acquaintance) who had been a victim of a homicide. Some of the panel members responded affirmatively and were further interrogated by the State.
Thomas was subsequently convicted of second degree murder, first degree assault, and two counts of use of a firearm to commit a felony. After an enhancement hearing, Thomas was found to be a habitual criminal. He was sentenced to prison terms of 20 years to life for second degree murder, 12 to 14 years for use of a firearm to commit second degree murder, 12 to 14 years for first degree assault, and 10 to 12 years for use of a firearm to commit first degree assault. The sentences were ordered to be served consecutively.
Thomas timely filed a motion for new trial. He subsequently filed two supplemental motions for new trial and requested an evidentiary hearing before a neutral judge. The trial judge overruled the first two motions, and a different judge overruled the third motion.
A review of the three motions for new trial is necessary. In the first motion for new trial, Thomas alleged, inter alia, that the proceedings were irregular because no African Americans were included in the panel from which his jury was selected. He also claimed that the prosecutor made improper remarks in closing arguments when he commented to the jury:
Thomas' first supplemental motion for new trial alleged that Thomas had learned from Vincent Evans, a previously unidentified witness, that testimony about the shooting given by William King, Jr., one of the State's witnesses, was not true. Thomas alleged that King's testimony was crucial to the State's case and that King had refused to identify any other witnesses who were present with him. Thomas alleged that Evans' testimony about the shooting would have contradicted King's testimony.
Thomas' second supplemental motion for new trial and request for an evidentiary hearing before a neutral judge alleged that during the second day of deliberations, the jury foreman sent a note to the trial judge stating that the jury was deadlocked. Outside the presence of and without notice to the parties or their counsel, the trial judge told the jury to continue deliberating because it was too soon to abandon the effort to reach a verdict.
At a hearing to consider the first two motions for new trial, Thomas clarified that the supplemental motions were not intended as new motions for new trial but were intended to be considered part of the original motion. The trial judge recused himself on the claim of improper communication with the jury, and the parties proceeded to argue the remaining issues. Thomas asked the trial court to take judicial notice that there were no African American jurors and that no African Americans were included in the jury panel. Thomas also alleged juror misconduct based on a letter from one of the jurors, who stated that she wanted to change her vote, and another juror's statement that the jury did not follow the instructions given by the trial court. Thomas offered into evidence sworn statements from these jurors.
In exhibit 105, a jury member (Juror A) stated that while the jury was discussing whether the crime was first or second degree murder, another jury member (Juror X) was adamant that the crime was first degree murder. Juror X said that he knew in his heart that a person would not return to the area of the shooting unless he was looking to kill someone. Eventually, the jury learned that Juror X had an uncle who had been shot by a relative and that Juror X believed that the relative should have been convicted of first degree murder, rather than second degree murder. When the foreman asked Juror X why he did not disclose this information during jury selection, Juror X stated that he did not believe it was important enough to mention.
Exhibit 106 is a sworn statement from another jury member (Juror B) claiming that the jury did not follow its instructions with regard to reasonable doubt. Exhibit 108 is a letter from Juror B to the trial court stating that the juror wanted to change her vote. The State objected to the exhibits, and the trial court took the matter under advisement. The closing argument at trial was also offered and received into evidence. Thomas offered exhibit 107, which is a sworn statement by Evans, the previously unidentified witness. The State objected to admission of Evans' statement. The record does not indicate whether Evans' statement was received.
The trial court overruled the first two motions for new trial. In its written order, the trial court found that Thomas raised three issues in the motions-newly discovered evidence, recantation of the verdict by two jurors, and improper statements by the prosecutor in closing argument. The trial court noted that the basis of Thomas' claim of newly discovered evidence was an affidavit by Evans, who was with King at the time of...
To continue reading
Request your trial
-
State v. Mata
...obtained at a time when the defendant was represented by counsel or had knowingly waived such right is plain error. State v. Thomas, 262 Neb. 985, 637 N.W.2d 632 (2002),cert. denied 537 U.S. 918, 123 S.Ct. 303, 154 L.Ed.2d 203; State v. Nelson, 262 Neb. 896, 636 N.W.2d 620 (2001). In State ......
-
State v. Vela
...at 468, 101 S.Ct. 1866. 130. See, State v. McCracken, 260 Neb. 234, 615 N.W.2d 902 (2000), abrogated on other grounds, State v. Thomas, 262 Neb. 985, 637 N.W.2d 632 (2002); State v. Vosler, 216 Neb. 461, 345 N.W.2d 806 (1984); State v. Carreon, supra note 124; Centeno v. Superior Court, 117......
-
State v. Robinson
...sentencing, but did not show that he had been represented by counsel or waived counsel prior to sentencing. See, also, State v. Thomas, 262 Neb. 985, 637 N.W.2d 632 (2002). The defendant's argument is without merit. Exhibit 137, the defendant's plea agreement, was signed by the defendant's ......
-
State v. Davlin
...452, 623 N.W.2d 315 (2001). The standard for reviewing the admissibility of expert testimony is abuse of discretion. State v. Thomas, 262 Neb. 985, 637 N.W.2d 632 (2002). V. 1. JURY INSTRUCTIONS The district court's instruction No. 3 was a step instruction which included instructions regard......