Opinion
No. A-12-290
01-15-2013
STATE OF NEBRASKA, APPELLEE, v. CLIFTON T. RICHARDSON, APPELLANT.
Adam J. Sipple, of Johnson & Mock, for appellant. Jon Bruning, Attorney General, and Kimberly A. Klein for appellee.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
Appeal from the District Court for Douglas County: JOSEPH S. TROIA, Judge. Affirmed.
Adam J. Sipple, of Johnson & Mock, for appellant.
Jon Bruning, Attorney General, and Kimberly A. Klein for appellee.
INBODY, Chief Judge, and SIEVERS and RIEDMANN, Judges.
RIEDMANN, Judge.
INTRODUCTION
Clifton T. Richardson appeals his convictions for discharging a firearm at an occupied motor vehicle and use of a deadly weapon to commit a felony. On appeal, Richardson challenges the State's conduct during trial and his sentences. Because we find no merit to Richardson's assignments of error, we affirm.
BACKGROUND
In May 2011, Phillip Duncan, Kenneth Nelson, and Letta Stogdill were driving around Omaha, Nebraska, "scrapping." "Scrapping" means looking for scrap metal to sell for money. The group stopped their truck in an alley near Richardson's house, and Nelson exited the truck to take a tire rim out of Richardson's yard. Richardson looked out a second story window of his home and saw Nelson attempting to enter his backyard. Richardson got out his rifle, knocked the screen out of the window, and yelled at Nelson. Nelson ran back to the truck where Duncan and Stogdill were waiting, and as the truck began pulling away, Richardson fired the rifle and hit Duncan in the back, causing serious injuries.
Richardson argued the shooting was accidental, but a jury convicted him of discharging a firearm at an occupied motor vehicle and use of a deadly weapon to commit a felony. Richardson was sentenced to imprisonment for 3 to 3 years for discharging a firearm and a consecutive prison sentence of 5 to 5 years for use of a deadly weapon, with credit for 3 days served. This appeal followed.
ASSIGNMENTS OF ERROR
Richardson claims the trial court erred in (1) overruling his objection and failing to provide a curative instruction when the prosecutor suggested during cross-examination that Richardson fabricated testimony central to his defense after conferring with his lawyer; (2) overruling his objection and failing to provide a curative instruction to the jury when, during closing arguments, the prosecutor implicitly requested the jury adhere to its position expressed during voir dire rejecting Richardson's self-defense argument; (3) failing to grant a mistrial, give a curative instruction, or provide other appropriate relief based upon the prosecutor's statements during closing arguments; and (4) violating his protection against double jeopardy by imposing multiple, consecutive sentences for the same criminal conduct.
ANALYSIS
SUGGESTION OF FABRICATED TESTIMONY
Richardson claims the trial court erred in overruling his objection and failing to provide a curative instruction when the prosecutor suggested during cross-examination that Richardson fabricated testimony central to his defense after conferring with his lawyer. Because Richardson now objects on a different ground than he asserted at trial, we find he did not properly preserve this issue for appeal.
In response to questioning during cross-examination, Richardson stated that he was bringing the gun up to the window at the same time Nelson was getting back in the truck and the truck was starting to drive away. The prosecutor asked why he brought the gun up at all if the truck was leaving, and Richardson responded that Nelson was not in the truck yet as he was raising the gun. The following exchange then occurred:
Q. Was [Nelson] walking back towards your house? A. No.
Q. He was leaving, correct?
A. I didn't know if he was going back to the truck to get a weapon or what he was doing.
Q. And "Going back to the truck to get a weapon," that comes after you and defense counsel have conferred. You never said that to [the d]etective . . . , did you?
Richardson objected at that point to the form of the question, but the court overruled the objection. On appeal, Richardson challenges the substance of the question as improperly suggesting defense counsel fabricated the theory of self-defense.
At trial, Richardson did not object to the State's question on constitutional or substantive grounds. Rather, he objected to only the form of the State's question. On appeal, a party may not assert a different ground for his or her objection to the admission of evidence than was offered to the trier of fact. State v. Shipps, 265 Neb. 342, 656 N.W.2d 622 (2003). An objection, based on a specific ground and properly overruled, does not preserve a question for appellate review on any other ground. State v. Molina, 271 Neb. 488, 713 N.W.2d 412 (2006).
Because Richardson has raised a different ground for his objection to the State's question than was presented to the trial court, he has not preserved this issue for appellate review, and we decline to address his assertions further.
PROSECUTOR'S COMMENTS ABOUT VOIR DIRE
DURING CLOSING ARGUMENTS
Richardson asserts the prosecutor committed misconduct during closing arguments when she reminded the jury of its position expressed during voir dire. We reject this argument because we find nothing improper about the prosecutor's remarks during voir dire or closing arguments.
Generally, in assessing allegations of prosecutorial misconduct in closing arguments, a court first determines whether the prosecutor's remarks were improper. State v. Alarcon-Chavez, 284 Neb. 322, 821 N.W.2d 359 (2012). It is then necessary to determine the extent to which the improper remarks had a prejudicial effect on the defendant's right to a fair trial. Id.
During voir dire, the prosecutor asked the jury if anyone had a problem with Nebraska law which does not allow a person to use violence to defend property. See Neb. Rev. Stat. § 28-1411 (Reissue 2008) (use of force to protect property only justifiable under certain conditions not present here). Then, during closing arguments, the prosecutor stated:
You remember all the questions [defense counsel] asked during voir dire. If somebody was coming into your house, and they were -- and a lot of you said, [y]eah, if he was coming at me, I'm going to pull my gun out. If it's property, [n]o, I'm not. And I, in voir dire, said, if that's not the case, if somebody's not coming after you physically, and they're just in your yard, some distance away from your house, from your family, is it justified? All of you said no. We're not dealing with a situation where [Richardson] felt fear for himself, his family, the life of the people inside the house.Richardson objected and asked the court to admonish the jury, but the trial court overruled the objection. Richardson now argues that just as counsel may not, during voir dire, "secure in advance a commitment from prospective jurors on the verdict they would return, given a state of hypothetical facts," she should not be able to request adherence to such a commitment during closing arguments. See State v. Iromuanya, 282 Neb. 798, 817, 806 N.W.2d 404, 425 (2011).
A court should permit parties to ask prospective jurors questions about whether they can fulfill their duties impartially. Id. So parties may generally ask hypothetical questions designed to determine whether prospective jurors' preconceived attitudes or biases would prevent them from following the law or applying a legal theory or defense. Id.
During voir dire, the prosecutor informed the prospective jurors that in Nebraska a person cannot use violence to defend property and asked if anyone disagreed. She told the jurors that if anyone thought they had "a right to pull out a gun and shoot" someone in their yard, she needed to know they felt that way. We conclude that the prosecutor's comments were intended to ensure that prospective jurors understood Nebraska law and were willing to apply it properly to the facts of the case. The prosecutor never asked for a commitment from the jurors as to a verdict they would return, but, rather, she wanted to know if their personal feelings would prevent them from following the law in Nebraska prohibiting the use of violence to protect property. Then during closing arguments, the prosecutor reminded the jurors that they had all agreed they would be able to follow the law and apply it properly. There was nothing improper about ensuring the jurors would follow Nebraska law and reminding them of their agreement to do so during closing arguments. Therefore, we find no merit in Richardson's argument that the State's remarks constituted misconduct.
PROSECUTOR'S STATEMENTS DURING
CLOSING ARGUMENTS
Richardson claims the trial court erred in failing to grant a mistrial, give a curative instruction, or provide other appropriate relief based upon the prosecutor's statements during closing arguments. Although this issue was not properly preserved, our review for plain error does not reveal errors evident from the record.
A party who fails to make a timely motion for mistrial based on prosecutorial misconduct waives the right to assert on appeal that the court erred in not declaring a mistrial due to such prosecutorial misconduct. State v. Wilson, 252 Neb. 637, 564 N.W.2d 241 (1997). A party may not raise alleged misconduct of adverse counsel on appeal where, despite knowledge of the alleged misconduct, the party claiming the misconduct failed to request a mistrial and instead agreed to take his or her chance on a favorable verdict. State v. Anderson and Hochstein, 207 Neb. 51, 296 N.W.2d 440 (1980). Richardson never moved for a mistrial on the ground of prosecutorial misconduct; therefore, this assignment of error was not properly preserved.
Richardson acknowledges that defense counsel failed to object to the remarks or move for a mistrial, but argues we should review for plain error. Plain error will be noted only where an error is evident from the record, prejudicially affects a substantial right of a litigant, and is of such a nature that to leave it uncorrected would cause a miscarriage of justice or result in damage to the integrity, reputation, and fairness of the judicial process. State v. Young, 279 Neb. 602, 780 N.W.2d 28 (2010). Consideration of plain error occurs at the discretion of an appellate court. Id. The U.S. Supreme Court has noted that "'the plain-error exception to the contemporaneous-objection rule is to be "used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result."'" State v. Alarcon-Chavez, 284 Neb. 322, 336, 821 N.W.2d 359, 369 (2012) (citing United States v. Young, 470 U.S. 1, 105 S. Ct. 1038, 84 L. Ed. 2d 1 (1985)).
Generally, in assessing allegations of prosecutorial misconduct in closing arguments, a court first determines whether the prosecutor's remarks were improper. Alarcon-Chavez, supra. It is then necessary to determine the extent to which the improper remarks had a prejudicial effect on the defendant's right to a fair trial. Id.
Prosecutors are charged with the duty to conduct criminal trials in such a manner that the accused may have a fair and impartial trial, and prosecutors are not to inflame the prejudices or excite the passions of the jury against the accused. Id. A prosecutor's conduct that does not mislead and unduly influence the jury does not constitute misconduct. Id. Whether prosecutorial misconduct is prejudicial depends largely on the context of the trial as a whole. Id. When a prosecutor's conduct was improper, this court considers the following factors in determining whether the conduct prejudiced the defendant's right to a fair trial: (1) the degree to which the prosecutor's conduct or remarks tended to mislead or unduly influence the jury, (2) whether the conduct or remarks were extensive or isolated, (3) whether defense counsel invited the remarks, (4) whether the court provided a curative instruction, and (5) the strength of the evidence supporting the conviction. Id.
Richardson relies on State v. Barfield, 272 Neb. 502, 723 N.W.2d 303 (2006), in which the Nebraska Supreme Court held under the plain error standard that a prosecutor's statements during closing arguments required reversal and a new trial. In closing arguments, the prosecutor referred to the defendant as a " 'vicious dictator,'" a " 'tower of terror,'" a " 'two-headed hydra,'" a "'monster of mayhem,'" and a "'king of killers.'" Id. at 512, 723 N.W.2d at 313. On rebuttal, the prosecutor also implied that all defense attorneys are liars. The court concluded that the prosecutor's remarks were "clearly improper" and that to leave such conduct uncorrected would result in damage to the integrity, reputation, and fairness of the judicial process. Id. at 511, 723 N.W.2d at 312. The court noted that the prosecutor's remarks were very serious and did not reflect a single, isolated instance, but were numerous. Barfield, supra.
The comments Richardson objects to in this case include: • "This isn't a fight between lawyers about who can slander the witnesses more or make them feel the most embarrassed." • "[Attributing to defense counsel an effort to invite a not guilty verdict based on the idea the witnesses] have a lower level of value to their life[, are] not worth it[, are] not important[, or are] pieces of crap." • "I submit to you, ladies and gentlemen, the reason that [defense counsel is] trying to steer your focus of this trial that direction is to shift you away from what's important in this case, because it's not complex. That's his job. He's a defense attorney. He's doing his job, but you all need to realize what's important." • "Now another thing that came into play throughout the trial, kind of interesting, is the suggestion -- I submit to you 90 percent of the suggestion is coming from defense attorney that this is somehow in defense of his family . . . so I'm not quite sure why that's coming up, but, again, ask yourself why he wants to shift your focus on things that have nothing to do with this case. And I think you know, right? He wants you all -- he wants to start pulling on your heartstrings. And what would you do if these people were coming into your home?" • "So think of why defense counsel is kind of giving you two different angles. Well, maybe you guys will believe me and think this is okay if he's protecting his family, so let me throw that in there. As [the first prosecutor] stated, 90 percent of the testimony about defense of family or self came from questions posed by [defense counsel]." • "[The first prosecutor] spent some time explaining to you the differences in witnesses. It's kind of like [defense counsel] wants you to think we're these horrible, bad people that attack . . . Richardson['s wife], but what did he do to . . . Stogdill? She's the same age as Richardson['s wife]. Did he back off? Did he lay off? What did he do to . . . Nelson? What did he do to . . . Duncan? Smile, show them your teeth."
When reviewing the comments in context and the record as a whole, we find that these comments do not rise to the level of plain error requiring reversal. Even assuming, without deciding, that these comments were improper, it cannot be said that they prejudiced Richardson. These were a few isolated comments in a long closing argument and rebuttal and many were invited by defense counsel. Moreover, any resulting prejudice to Richardson was not of such a nature that to leave it uncorrected would result in damage to the integrity, reputation, and fairness of the judicial process. The comments from State v. Barfield, 272 Neb. 502, 723 N.W.2d 303 (2006), that met that standard were repetitive, clearly improper, and quite egregious. The comments at issue here simply do not rise to that level. Because we find that the prosecutor's comments do not rise to the level of misconduct, we decline to reverse on the basis of plain error.
Richardson argues that alternatively, the court could find ineffective assistance of counsel for failing to object to the prosecutor's remarks during closing arguments. However, this error was not assigned, and an appellate court does not consider errors which are argued but not assigned. State v. Duncan, 278 Neb. 1006, 775 N.W.2d 922 (2009).
DOUBLE JEOPARDY
Richardson claims the trial court violated his protection against double jeopardy by imposing multiple, consecutive sentences for the same criminal conduct. The State asserts that this issue has not been properly preserved for appeal because there was no motion, no objection, and no challenge of any kind other than a question posed by defense counsel in the middle of trial asking if Richardson could withdraw his not guilty plea and stand silent. At the time of the request, defense counsel advised the court that he was requesting the plea withdrawal because he was concerned that consecutive sentences on two use charges would be unconstitutional. The court denied his request.
Although there was no formal objection, defense counsel reiterated at sentencing his belief that sentencing Richardson separately for the crimes for which he was convicted violated the Double Jeopardy Clause. The trial court, in effect, overruled Richardson's objection to the sentences by stating, "You can take your argument to the Supreme Court and to the legislature and see if they'll change it." Therefore, we will address the merits of this assignment.
The Double Jeopardy Clause protects against three distinct abuses: (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense. State v. McBride, 252 Neb. 866, 567 N.W.2d 136 (1997). The Double Jeopardy Clause precludes multiple punishments for the same offense imposed in a single proceeding. Id. A determination of whether two convictions in a single trial lead to multiple punishment depends upon whether the Legislature, when designating the criminal statutory scheme, intended that cumulative sentences be applied for conviction on both offenses. Id.
Richardson was convicted of discharging a firearm at an occupied motor vehicle in violation of Neb. Rev. Stat. § 28-1212.02 (Cum. Supp. 2012) and use of a deadly weapon to commit a felony in violation of Neb. Rev. Stat. § 28-1205(1)(a) and (c) (Cum. Supp. 2012). In McBride, supra, the Nebraska Supreme Court held that prosecution for both unlawful discharge of a firearm under § 28-1212.02 and use of a deadly weapon under § 28-1205 in a single proceeding did not violate the Double Jeopardy Clause. In so finding, the court reiterated its prior holding that legislative intent controls, stating: "'If the statute clearly and affirmatively indicates that the legislature intended that the defendant be punished cumulatively under both charges and the sentences for both charges are imposed in a single trial, the Double Jeopardy Clause is not offended.'" McBride, 252 Neb. at 882, 567 N.W.2d at 147 (quoting State v. McHenry, 250 Neb. 614, 550 N.W.2d 364 (1996)).
Richardson argues McBride reaches the incorrect conclusion, but we disagree due to the plain language of the statutes at issue. Section 28-1205(3) provides that the crime of using a deadly weapon to commit a felony "shall be treated as [a] separate and distinct offense[] from the felony being committed, and sentences imposed under this section shall be consecutive to any other sentence imposed." The quoted statutory language expressly provides that the Legislature intended the crime of using a deadly weapon to commit a felony to remain an independent offense from the underlying felony. Furthermore, the crime of using a deadly weapon to commit a felony applies to "[a]ny person who uses a firearm . . . to commit any felony . . . ." § 28-1205(1)(a). Accordingly, there can be no question that the Legislature intended that one using a deadly weapon be subjected to cumulative punishments for committing the underlying felony and for the use of the weapon to commit it. Because the Legislature has not amended § 28-1212.02 or § 28-1205 since McBride, we are bound by the Supreme Court's interpretation of this issue. See State v. Hausmann, 277 Neb. 819, 765 N.W.2d 219 (2009) (vertical stare decisis compels lower courts to follow strictly decisions rendered by higher courts within same judicial system). Therefore, we affirm.
CONCLUSION
We conclude that Richardson failed to preserve his challenge to the State's cross-examination of Richardson because he now asserts a different ground for the objection than he presented at trial. We further find that the prosecutor's comments during closing arguments referencing voir dire do not constitute prosecutorial misconduct and that the other remarks Richardson challenges do not constitute misconduct to a level requiring reversal under a plain error review. Finally, we conclude that Richardson's sentences do not violate his protection against double jeopardy. Accordingly, we affirm the judgment of the trial court.
AFFIRMED.