State v. Sanders
v.
CLENTON M. SANDERS, APPELLANT.
Court of Appeals of Nebraska.
Beau G. Finley, of Finley & Kahler Law Firm, P.C., L.L.O., for appellant.
Jon Bruning, Attorney General, and James D. Smith for appellee.
INBODY, Chief Judge, and IRWIN and MOORE, Judges.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
IRWIN, Judge.
I. INTRODUCTION
Clenton M. Sanders appeals his conviction on charges of second degree murder and use of a weapon in the commission of a felony. On appeal, Sanders raises numerous assignments of error, including challenges to the district court's rulings on motions in limine, a challenge to the State's use of peremptory strikes in jury selection, the sufficiency of the evidence, and the jury instructions. We find no merit to any of Sanders' assignments of error, and we affirm.
II. BACKGROUND
The events giving rise to this case occurred in the early morning hours of May 6, 2007. Sanders and Allison McCaskill arrived at Patricia McCaskill's home sometime after midnight. Allison remained in Sanders' van, and Sanders entered the home. Inside the home, there was an altercation between Sanders and Patricia.
One witness testified that Patricia appeared to be angry and upset at Sanders being in her home. Sanders testified that Patricia was waving a fireplace poker around and yelling at him to "get out the house." Sanders testified that Patricia "started wavin' the poker by [his] head, she started bangin' the wall by [his] head." Sanders then decided to leave the home and was nearing the front door when Allison began to enter the home.
Sanders testified that he went outside of the home and stood on the front porch. Sanders testified that Patricia and Allison argued, and then Patricia "hopped up off the couch and just — she just lost it," and that Patricia began "breaking the tables and runnin' around hittin' pictures and putting' holes in the walls" with the fireplace poker. Sanders testified that Allison "ran to the door" and was standing with Sanders when Patricia "ran to the door and swung" and struck the door with the fireplace poker.
Sanders testified that Patricia swung the fireplace poker a second time, "kinda nicked [him] a little bit in the face and hit Allison in the back of the head" and that he attempted to grab the poker out of Patricia's hand, unsuccessfully. Sanders testified that another person in the house then "came toward [them] and he was going for his knife and he pulled it out" when he was a couple of feet away from them. Sanders testified "[t]hat's when I went for my weapon."
Another witness testified that Sanders had actually reentered the home while Allison was inside, that Patricia then became angry and broke a glass table with the fireplace poker, and that Allison had begun pulling Sanders out of the house. The witness testified that as Allison was pulling Sanders out of the house, Sanders "jerked loose and turned around and [shot Patricia] in the chest." That witness testified that Sanders was not being threatened at the time he pulled his gun and shot Patricia.
Patricia died at 2:05 a.m. at the hospital. The cause of death was a gunshot wound to the right chest.
On July 5, 2007, the State charged Sanders by information with second degree murder and use of a weapon in the commission of a felony. Motions in limine were filed by both Sanders and the State prior to trial, and relevant facts concerning those motions will be set forth in the discussion section below. On July 11, 2008, a jury returned verdicts of guilty on both counts. On October 20, the district court sentenced Sanders to 40 to 50 years' imprisonment on the second degree murder conviction and 10 to 15 years' imprisonment on the use of a weapon conviction, to be served consecutively. This appeal followed.
III. ASSIGNMENTS OF ERROR
Sanders has assigned numerous errors on appeal. Sanders challenges the district court's ruling on his objection to the State's use of peremptory strikes, the court's ruling on his pretrial motion to continue, the court's ruling on his motion in limine and objections to the admission of statements made by Patricia before her death identifying him as the person who shot her, the sustaining of the State's motion in limine and admission of statements made by Patricia during the altercation in her home, the instructions given to the jury, and the sufficiency of the evidence to support the convictions. In addition, Sanders asserts that he was denied the effective assistance of counsel at trial.
IV. ANALYSIS
1. PEREMPTORY STRIKES
We first address Sanders assertion that the district court erred in overruling his objection to the State's use of peremptory strikes. Sanders made a Batson objection when the State exercised peremptory challenges to remove two of four black potential jurors from the jury pool. See Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). We do not find the court's ruling on this objection to be clearly erroneous.
A trial court's determination of whether a party has established purposeful discrimination in jury selection is a finding of fact and is entitled to appropriate deference from an appellate court because such a finding will largely turn on evaluations of credibility. State v. Gutierrez, 272 Neb. 995, 726 N.W.2d 542 (2007). A trial court's determination that there was no purposeful discrimination in a party's use of his or her peremptory challenges and a trial court's determinations of the adequacy of a party's neutral explanation of its peremptory challenges are factual determinations that will not be reversed on appeal unless clearly erroneous. Id.
In Batson, the U.S. Supreme Court held that the Equal Protection Clause of the 14th Amendment forbids prosecutors from using peremptory challenges to strike potential jurors solely on account of their race. See State v. Gutierrez, supra. The evaluation of whether a party has used peremptory challenges in a racially discriminatory matter is a three-step process. State v. Gutierrez, supra. First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. Id. Second, if the requisite showing has been made, the burden shifts to the prosecutor to present a race-neutral explanation for striking the juror in question. Id. Although the prosecutor must present a comprehensible reason, the second step of this process does not demand an explanation that is persuasive, or even plausible; so long as the reason is not inherently discriminatory, it suffices. Id. Third, the trial court must then determine whether the defendant has carried his burden of proving purposeful discrimination. Id. The final step involves evaluating the persuasiveness of the justification proffered by the prosecutor, but the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike. Id.
In this case, the district court found that Sanders had made a prima facie showing that the prosecutor exercised peremptory challenges on the basis of race. The State then proffered that the first challenged peremptory strike was exercised because the potential juror was "a student" and "a younger member of the panel" who was "a sociology major." The State noted that two other non-black potential jurors had also been struck for being "younger jurors" who "were students." The State argued that the younger potential jurors who were struck "would [not] be the best, ideal type of jurors for this type of a case, being a complex murder case."
The State proffered that the second challenged peremptory strike was exercised because the potential juror had demonstrated "body language during the course of questioning, she had her arms crossed, would not answer questions and specifically in watching one time . . . just kept quiet and would not" provide a visible nod of her head to indicate that she "would be able to find someone guilty if the State proved [its case] beyond a reasonable doubt." The State argued that when the potential juror was specifically asked the question again, "there was some hesitation and then she finally answered yes, she could." The State further argued that the potential juror appeared to have difficulty following instructions and was not paying attention during portions of the voir dire.
The district court concluded that "[b]ased upon the evidence before the court, the court's going to overrule the . . . Batson challenge by the defendant." Upon our review of the record, we cannot conclude that such a conclusion was clearly erroneous. The State proffered race-neutral explanations for exercising the peremptory strikes, and Sanders failed to sustain his burden to demonstrate that there was purposeful discrimination. This assignment of error is without merit.
2. SANDERS' MOTION TO CONTINUE
We next address Sanders' assertion that the district court erred in overruling his pretrial motion to continue. Sanders sought a continuance in the week prior to trial, alleging that he had recently provided his counsel with the names of possible witnesses that needed to be located to support his defense of self-defense. We find no abuse of discretion by the trial court in overruling this motion.
In criminal cases, a motion for continuance is addressed to the discretion of the trial court, and the trial court's ruling on such a motion will not be disturbed on appeal absent a showing of an abuse of discretion. See State v. Connor, 16 Neb. App. 871, 754 N.W.2d 774 (2008). A judicial abuse of discretion exists only when the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result in matters submitted for disposition. Id.
The record indicates that the parties were notified as early as February 2008 that the trial was scheduled to commence on July 7, 2008. On July 2, Sanders filed a motion seeking continuance and asserting that Sanders had been attempting to hire different counsel but had been unable to do so and, as a result, had "recently supplied [his] counsel with information and possible witnesses that need[ed] to be investigated and contacted." At the hearing on the motion, counsel indicated that Sanders was going to proceed with a defense of self-defense argument and that the potential witnesses had relevant information but that he had been unable to locate them.
The district court denied the motion for continuance and specifically indicated that the matter had been set for trial since February 2008, that the potential witnesses had been known to Sanders for some time, and that Sanders had assumed the risk of not advising his counsel about them "until the last minute or a week before trial." We cannot find this ruling to be an abuse of discretion. We can find nothing in the record to suggest that Sanders was unable to provide this information to his counsel at an earlier time. This assignment of error is without merit.
3. SANDERS' MOTION IN LIMINE
We next address Sanders' assertion that the district court erred in overruling his pretrial motion in limine and his objections to testimony concerning Patricia's statements before her death identifying Sanders as the person who shot her. Because Sanders proceeded at trial with a defense of self-defense and Sanders himself testified that he shot Patricia, we find any error in the admission of this testimony to be harmless error.
In a harmless error review, an appellate court looks at the evidence upon which the jury rested its verdict; the inquiry is not whether in a trial that occurred without the error a guilty verdict would surely have been rendered, but, rather, whether the guilty verdict rendered in the trial was surely unattributable to the error. State v. Pischel, 277 Neb. 412, 762 N.W.2d 595 (2009). Even if we assume that testimony was erroneously allowed concerning Patricia's statements in the ambulance identifying Sanders as the person who shot her, a finding we explicitly do not make, the question would become whether the guilty verdict was surely unattributable to the error.
In the present case, Sanders' defense was self-defense. Sanders himself testified that he pulled a gun from his pocket and "just shot." There was no dispute in this case that Sanders was the person who shot Patricia; identity was not an issue that was disputed at trial. Even if Sanders is correct in arguing that Patricia's statements in the ambulance identifying him as the shooter were hearsay and were not admissible as dying declarations or as excited utterances, the record presented to us still contains Sanders' own testimony identifying himself as the person who shot Patricia.
Sanders argues on appeal that there is no harmless error because he was left with no choice but to pursue a defense of self-defense as a result of the court's ruling on his pretrial motion in limine. Sanders argues that because there was no way to challenge the testimony that Patricia identified him as the shooter, he could no longer pursue a defense that he was not the shooter. The record presented to us contains nothing from which we would be able to conclude that the motion in limine ruling was the basis for Sanders to pursue a defense of self-defense or that he would have denied being the shooter. We would have to speculate to reach that conclusion, and that conclusion would also contradict Sanders' sworn testimony in this case that he did, in fact, pull the trigger. As a result, we find that any error concerning Sanders' pretrial motion in limine and the admission of this testimony would be harmless error. This assignment of error is without merit.
4. STATE'S MOTION IN LIMINE
We next address Sanders' assertion that the district court erred in sustaining the State's pretrial motion in limine and in allowing the State to adduce testimony about statements Patricia made ordering him out of her home during the altercation between Patricia and Sanders. Because Sanders himself testified that Patricia told him to get out of the house, we find that any error in the admission of this testimony was harmless error.
In a harmless error review, an appellate court looks at the evidence upon which the jury rested its verdict; the inquiry is not whether in a trial that occurred without the error a guilty verdict would surely have been rendered, but, rather, whether the guilty verdict rendered in the trial was surely unattributable to the error. State v. Pischel, 277 Neb. 412, 762 N.W.2d 595 (2009). Even if we assume that testimony was erroneously allowed concerning Patricia's statements during the altercation ordering Sanders out of her home, a finding we explicitly do not make, the question would become whether the guilty verdict was surely unattributable to the error.
We first note that in his brief on appeal, Sanders appears to challenge only one witness' testimony about Patricia's statements ordering Sanders out of the home. Sanders references only one witness' testimony, and then argued that it was not admissible. In response to the State's assertion that there were numerous other instances of testimony about the same statements, Sanders asserted in his reply brief that he objected to "all three references in the trial record to statements made by Patricia McCaskill ordering [Sanders] to leave her house." Reply brief for appellant at 15. However, Sanders himself provided comparable testimony on direct examination from his own counsel.
Sanders testified that Patricia "was yelling at me and stuff to get out the house." He testified Patricia was "just yellin'. She's telling me she wanted me out." He testified that Patricia told him to leave the house and told him to go outside and wait. Inasmuch as Sanders himself provided comparable testimony to the testimony he is asserting was erroneously admitted, any such error would be harmless, and the guilty verdict was surely unattributable to any alleged error. This assignment of error is without merit.
5. JURY INSTRUCTIONS
We next address Sanders' assertion that the district court erred in instructing the jury. Sanders asserts the district court erred both in giving a standard step instruction that required the jury to consider whether the elements of second degree murder were proven before considering the lesser-included offense of manslaughter and in refusing to give Sanders' proposed instruction defining manslaughter. On appeal, Sanders acknowledges that the instructions actually given comply with current Nebraska law and that his assertions have previously been rejected by the Nebraska Supreme Court in other cases. His argument on appeal is simply that both issues should be reexamined. Inasmuch as Sanders has acknowledged that the instructions given were not erroneous under current Nebraska law, and inasmuch as this court is not in a position to revisit issues already ruled on by the Nebraska Supreme Court, we find these assignments of error to be without merit.
6. SUFFICIENCY OF EVIDENCE
We next address Sanders' assertions that there was insufficient evidence to support his convictions and that the district court erred in overruling his motion to dismiss at the conclusion of all the evidence. There was clearly sufficient evidence to support the jury's verdicts in this case.
When reviewing a criminal conviction for sufficiency of the evidence to sustain the conviction, the relevant question for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Davis, 277 Neb. 161, 762 N.W.2d 287 (2009). In its review, an appellate court does not resolve conflicts in the evidence, pass on the credibility of the witnesses, or reweigh the evidence; those matters are for the finder of fact. Id. A defendant that asserts an insufficiency of the evidence claim has a steep hill to climb. Id.
Sanders' arguments on appeal in support of these assignments of error consist entirely of assertions that he presented "ample" evidence to establish self-defense or to demonstrate that he was being threatened and had a reasonable and good faith basis to believe he needed to use force to defend himself. He asserts that there was insufficient evidence to support the convictions because he adduced evidence to support his defense. Sanders argues that his position on appeal is not that the trial court had to give credence to his own testimony and defense as a matter of law, but then he persists on asserting that there was insufficient evidence because he presented evidence to support his defense of self-defense.
Our review of the record indicates that there was substantial testimony, including that of Sanders himself, from which the jury could conclude that Sanders went to Patricia's home and entered it, against her wishes, while carrying a gun; that there was an altercation between the two; that Sanders had left the home, but chose to remain on the front porch; and that Sanders ultimately pulled out a gun and shot Patricia, causing her death. Sanders testified that he did so because he was in fear for his and Allison's safety as a result of Patricia's swinging the fireplace poker and another person pulling out a knife, but the jury certainly had sufficient evidence to conclude that Sanders' defense was not credible and that he could have simply left the premises without ever needing to shoot Patricia. These assignments of error are without merit.
7. EFFECTIVE ASSISTANCE OF COUNSEL
Finally, we address Sanders' assertion that he was denied effective assistance of counsel. Sanders argues that his trial counsel failed to provide him with copies of all discovery and to follow through on investigatory or evidentiary matters and that there were significant communication problems between Sanders and his trial counsel. We find that Sanders has failed to carry his burden, on this record, of establishing ineffective assistance of counsel.
To prevail on a claim of ineffective assistance of counsel, the defendant must show that counsel's performance was deficient and that this deficient performance actually prejudiced his or her defense. State v. Hudson, 277 Neb. 182, 761 N.W.2d 536 (2009). The two-prong test for an ineffective assistance of counsel claim need not be addressed in order; if it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, that course should be followed. Id. The entire ineffectiveness analysis is viewed with a strong presumption that counsel's actions were reasonable and that even if found unreasonable, the error justifies setting aside the judgment only if there was prejudice. Id.
A claim of ineffective assistance of counsel need not be dismissed merely because it was made on direct appeal. State v. Davis, 276 Neb. 755, 757 N.W.2d 267 (2008). The determining factor is whether the record is sufficient to adequately review the question. Id. If the matter has not been raised or ruled on at the trial level and requires an evidentiary hearing, an appellate court will not address the matter on direct appeal. Id.
In the present case, Sanders made a motion to the district court requesting the appointment of new counsel. During the court's hearing on Sanders' motion, Sanders repeatedly made general statements about being dissatisfied with his counsel and about feeling that his counsel was not sufficiently representing his interests. For the most part, however, Sanders failed to present any specific evidence or instances of ineffective assistance or prejudice to his defense as a result of these dissatisfactions. On the record presented to us, we do not see any evidence that counsel's performance was deficient or that there was any prejudice to Sanders' defense. We conclude that the record is insufficient to allow a meaningful review of these assertions at this time.
V. CONCLUSION
We find no merit to Sanders' assertions of error on appeal. The district court did not commit prejudicial or reversible error in any of the ways Sanders has asserted on appeal. As such, we affirm the convictions.
AFFIRMED.