State v. Brown , 310 Neb. 318 ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/05/2021 08:08 AM CDT
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. BROWN
Cite as 310 Neb. 318State of Nebraska, appellee and cross-appellant,
v. Rolander L. Brown, appellant
and cross-appellee.
___ N.W.2d ___
Filed October 22, 2021. No. S-21-112.
1. Motions for New Trial: Appeal and Error. The standard of review
for a trial court’s denial of a motion for new trial after an evidentiary
hearing is whether the trial court abused its discretion in denying
the motion.
2. Judgments: Words and Phrases. An abuse of discretion occurs when a
trial court’s decision is based upon reasons that are untenable or unrea-
sonable, or when its action is clearly against justice, conscience, reason,
or evidence.
3. Criminal Law: Motions for New Trial: Evidence: Proof. Neb. Rev.
Stat. § 29-2101(5) (Reissue 2016) imposes on defendants a two-prong
burden of proof: First, a criminal defendant must show that the evidence
at issue has been newly discovered since trial, meaning that the evidence
could not, with reasonable diligence, have been discovered and produced
at trial; second, the defendant also must show that the evidence at issue
is so substantial that with it, a different verdict would probably have
been reached at trial.
4. Trial: Evidence: Words and Phrases. Evidence is newly discovered if
it existed at the time of trial but has since been uncovered.
5. Motions for New Trial: Evidence. When alleged newly discovered
evidence is found to lack credibility, it cannot be said that it would have
produced a substantial difference in the result had it been offered and
admitted at trial.
6. Witnesses: Appeal and Error. Appellate courts do not pass on the cred-
ibility of witnesses.
7. ____: ____. Witness credibility is a matter for the finder of fact and is
not to be reassessed on appellate review.
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STATE v. BROWN
Cite as 310 Neb. 3188. Appeal and Error. An appellate court is not obligated to engage in an
analysis that is not necessary to adjudicate the case and controversy
before it.
Appeal from the District Court for Douglas County: James
T. Gleason, Judge. Affirmed.
Thomas C. Riley, Douglas County Public Defender, for
appellant.
Douglas J. Peterson, Attorney General, and Melissa R.
Vincent for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Freudenberg, J.
INTRODUCTION
After convictions of second degree murder, use of a firearm
to commit a felony, and possession of a firearm by a prohibited
person with sentences totaling 100 to 140 years’ imprisonment
were upheld on direct appeal, the defendant filed a motion for
new trial based on newly discovered evidence. After an eviden-
tiary hearing, the district court denied this motion for new trial.
The defendant now appeals.
BACKGROUND
Following a jury trial, Rolander L. Brown was convicted of
second degree murder, use of a firearm to commit a felony, and
possession of a firearm by a prohibited person. Brown was sen-
tenced to a total of 100 to 140 years’ imprisonment. Brown’s
convictions arose from the shooting of Carlos Alonzo on May
28, 2016. On direct appeal, this court affirmed Brown’s convic-
tions and sentences. 1 Now Brown appeals the district court’s
overruling of his motion for new trial.
1
State v. Brown, 302 Neb. 53, 921 N.W.2d 804 (2019).
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STATE v. BROWN
Cite as 310 Neb. 318Evidence at Trial
A full recitation of the facts of this case can be found in our
opinion regarding Brown’s direct appeal, and we highlight only
those facts most relevant to the current appeal. In the early
morning hours of May 28, 2016, Alonzo was found dead in the
front yard of the residence of Doloma Curtis. Both Alonzo and
Brown were romantically involved with Curtis at the time.
Surveillance video from a nearby convenience store showed
a sedan, which appeared to be missing the hubcap on its front
passenger-side tire, back into a parking space near the build-
ing at 2:21 a.m. A male exited the car at 2:22 a.m. and walked
toward Curtis’ residence, then ran back from that direction a
few minutes later and drove out of the parking lot. Shortly
after the male is seen walking toward Curtis’ front door, at
2:23 a.m., the front door of the residence opened. At 2:23 a.m.,
the male runs out of Curtis’ yard and back to his vehicle. At
2:24 a.m., the door to Curtis’ residence is opened and some-
one exits.
At approximately 2:24 a.m., Omaha’s “ShotSpotter” loca-
tion system detected a single gunshot in the vicinity of Curtis’
home. Law enforcement arrived at Curtis’ residence at 2:27 a.m.
Upon arrival, officers found Alonzo lying on his back on the
sidewalk with a single gunshot wound to the head. Evidence
indicated that Brown had access to and drove a sedan that did
not have a hubcap on its front passenger-side tire.
During the investigation, officers determined that Brown’s
phone number was the last number that called the cell phone
found in Curtis’ bedroom. Officers obtained cell phone records
from the cell phone provider for Brown’s phone number. These
records were sent to the FBI and used to track the movement
of that cell phone on the night of the homicide. These locations
indicated that Brown’s cell phone was near the location of the
homicide at approximately the time the shooting occurred.
Parris Stamps, a friend of Brown, testified at trial that
Brown arrived at the house he lived in with James Nelson in
the early morning hours of May 28, 2016. Stamps testified
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STATE v. BROWN
Cite as 310 Neb. 318Brown told him and Nelson that he had just come from Curtis’
house, that he had been in an altercation with Alonzo, and that
he “had to put [Alonzo] down.” Stamps testified that Brown
then pulled out a black Smith & Wesson .40-caliber handgun
and removed the clip, which was missing one bullet. Brown’s
cell phone records corroborated some elements of Stamps’ tes-
timony, because the records showed that Brown called Nelson
at 2:25 and 2:26 a.m. and the cell site location information
showed that Brown was in the area of Nelson’s residence at
approximately 2:34 a.m.
Brown’s Motion for New Trial
On October 6, 2020, Brown filed a motion for new trial
based on newly discovered evidence pursuant to Neb. Rev.
Stat. § 29-2101(5) (Reissue 2016). The State filed a motion
to dismiss the motion for new trial without further hearing.
Without explicitly ruling on the motion, the district court con-
ducted a hearing as contemplated by Neb. Rev. Stat. § 29-2102(Reissue 2016). Under § 29-2102(2), the court shall grant a
hearing on the motion and determine the issues and make
findings of fact and conclusions of law if the motion for new
trial and supporting documents set forth facts which, if true,
would materially affect the substantial rights of the defendant.
If, on the other hand, the motion for new trial and supporting
documents fail to set forth sufficient facts, under § 29-2102(2),
“the court may, on its own motion, dismiss the motion without
a hearing.”
The motion alleged and the evidence at the hearing estab-
lished that Curtis had been endorsed by the State as a witness
to be called at trial and had been interviewed by both law
enforcement and counsel for the defense. In each instance, she
relayed a similar story that she was in the bathroom and heard
Alonzo go outside to investigate some noise heard outside the
residence. She then heard a gunshot, went out the front door,
and observed Alonzo on the ground suffering from a gunshot
wound to the head. She then called the 911 emergency dis-
patch service.
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STATE v. BROWN
Cite as 310 Neb. 318The motion further alleged, and the evidence at the hearing
further established, that Curtis was arrested for accessory to
murder and later signed an agreement to participate in a prof-
fer interview, but when a proffer agreement was made where
Curtis would agree to testify truthfully for the State at Brown’s
trial and in return her charges would be reduced to a Class I
misdemeanor, Curtis rejected the agreement. Brown’s trial was
set to commence on July 10, 2017, and Curtis failed to appear
pursuant to her subpoena. Brown’s trial commenced on July
12, and Curtis was apprehended in Pottawattamie County,
Iowa, on July 19. The jury returned Brown’s guilty verdicts on
July 25, and Curtis never testified at Brown’s trial.
Curtis entered a guilty plea to accessory to a felony and
was sentenced to 3 to 5 years’ imprisonment. After her release,
in the early summer of 2020, Curtis contacted the Douglas
County public defender’s office indicating she had information
regarding the homicide of Alonzo that had not been previ-
ously disclosed.
Curtis executed a sworn affidavit, attached as an exhibit
to the motion, in which Curtis stated that on the night of the
homicide, after hearing the shot, she exited her residence and
observed her brother, LeRoy Long, standing next to Alonzo’s
body, and when she asked what happened, Long replied, “‘Fuck
that Nigger.’” Curtis stated that after she reentered her house
and came back outside, she saw Brown standing in her yard,
and when she asked Brown for help, he responded, “‘Baby I
can’t,’” and ran away.
Curtis was the only one called to testify at the hearing.
She testified consistently with what she stated in the affida-
vit. Curtis testified that she was in the process of a divorce
in May 2016 and had at that time been romantically involved
with Alonzo for a little over a year and with Brown for a few
months. She testified that Alonzo was not aware she was see-
ing Brown, but that Brown knew of Alonzo. Curtis testified
that on the night of Alonzo’s death, she was in the bathroom
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STATE v. BROWN
Cite as 310 Neb. 318and Alonzo was upstairs when she heard her dogs barking. She
heard Alonzo run downstairs and answer the door.
She testified that when she got done in the bathroom, she
went out the front door to sit on the porch and saw Alonzo
lying on the ground in blood. Curtis testified that she saw her
brother, Long, standing in the front yard by the gate with a
handgun. She testified that she asked Long what happened
and that Long replied, “‘Fuck that nigga.’” She testified that
she reached into Alonzo’s pocket to get his cell phone to call
911 and did not see where Long went. Curtis testified that
after she got the cell phone out of Alonzo’s pocket, she turned
around and saw Brown standing near the driveway. She testi-
fied that she screamed at him for help and that Brown looked
at her, shook his head, told her he could not get involved, and
ran away.
Curtis testified that she had told law enforcement she did not
know who shot Alonzo, because she was afraid for Long and
she had faith in the system that Brown would not be convicted.
She testified that she was arrested for accessory to homicide on
July 26, 2016, before Brown was arrested, and eventually went
to prison from February 2017 until September 2018. She testi-
fied that between her arrest and her sentencing, the prosecutor
offered to allow her to plead to a misdemeanor if she was will-
ing to testify in Brown’s trial. She testified that she never told
the prosecutor that she saw Long or Brown at the scene. She
testified that she was subpoenaed to appear at trial, but did not
appear, and that she was arrested as a result.
According to Curtis, after she was released in September
2018, she spoke with Long about getting the situation “figured
out,” and she testified that he “was just sitting there like — like
he didn’t hear me, like I wasn’t speaking to him.” She testified
that she also attempted to go to the police and tell them what
really happened, but that the detective she was supposed to talk
to never contacted her. Instead, Curtis prepared a handwritten
affidavit, dated March 9, 2020, that she delivered to the public
defender’s office.
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STATE v. BROWN
Cite as 310 Neb. 318District Court’s Order
Denying Motion
The district court denied Brown’s motion for new trial.
The court first agreed with Brown that the alleged newly
discovered evidence was material, because it placed Long
at the scene of the crime during the relevant timeframe and
implied that Long, rather than Brown, was responsible for
Alonzo’s murder. The court further considered whether Curtis’
testimony was evidence which Brown could not have dis-
covered and produced at trial with the exercise of reasonable
diligence. The court noted that the record reflected that Curtis
was interviewed by multiple entities prior to Brown’s trial, but
never told anyone that she saw Long or Brown on the night
of Alonzo’s murder. Based on this, the fact that Curtis did
not testify in Brown’s trial, and the fact that her account was
consistent throughout the course of the police investigation,
the court found that Brown could not have, with reasonable
diligence, discovered and produced the alleged newly discov-
ered evidence at trial, nor did the record indicate that defense
counsel was aware of this evidence and made a strategic deci-
sion to withhold it.
However, the court found that Curtis’ testimony was not
credible, and after noting all the evidence introduced by the
State against Brown at trial, the court believed that even if
this alleged newly discovered evidence was placed in context
with the trial evidence, it probably would not have changed
the results of Brown’s original trial. The court noted that the
“ShotSpotter” location system, Brown’s cell phone records,
the surveillance video, and the testimony of Brown’s friend
Stamps demonstrated the strength of the State’s case. The court
supported its finding that Curtis’ testimony was not credible by
illustrating that in the several times she was interviewed prior
to Brown’s trial, she intentionally withheld material informa-
tion; during the evidentiary hearing on the motion for new
trial, Curtis admitted to lying to the police; and her testimony
reflected that she is biased toward Brown because she was
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STATE v. BROWN
Cite as 310 Neb. 318dating Brown at the time of Alonzo’s death, had made it clear
that she did not want to testify against him, and had stated she
loved Brown before trial and still loves him.
So, while the court was satisfied that the alleged newly dis-
covered evidence could not have been presented by Brown’s
counsel at the time of trial, the court found that the evidence
lacked the requisite degree of credibility and competency to
warrant a new trial. In light of its finding that Curtis was not
credible, the court was not satisfied that the evidence was of
such a substantial nature that had it been received at Brown’s
trial, it would have changed the result.
Brown appeals the district court’s denial of his motion for
new trial. The State cross-appeals.
ASSIGNMENTS OF ERROR
Brown assigns that the trial court abused its discretion by
denying his motion for new trial based on newly discovered
evidence.
The State also filed a cross-appeal, assigning that the district
court erred in (1) denying the State’s motion to dismiss on the
ground that Curtis’ affidavit did not identify any newly discov-
ered evidence and (2) finding that Curtis’ testimony was newly
discovered based on the evidence presented at the hearing.
STANDARD OF REVIEW
[1,2] The standard of review for a trial court’s denial of a
motion for new trial after an evidentiary hearing is whether
the trial court abused its discretion in denying the motion. 2
An abuse of discretion occurs when a trial court’s decision
is based upon reasons that are untenable or unreasonable, or
when its action is clearly against justice, conscience, reason,
or evidence. 3
2
State v. Bartel, 308 Neb. 169, 953 N.W.2d 224 (2021).
3
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Nebraska Supreme Court Advance Sheets
310 Nebraska Reports
STATE v. BROWN
Cite as 310 Neb. 318ANALYSIS
Section 29-2101 sets out the seven grounds on which a
motion for new trial may be based. At issue in this appeal is
§ 29-2101(5). Under § 29-2101,
[a] new trial, after a verdict of conviction, may be
granted, on the application of the defendant, for any of
the following grounds affecting materially his or her
substantial rights: . . . (5) newly discovered evidence
material for the defendant which he or she could not with
reasonable diligence have discovered and produced at the
trial . . . .
[3] In our opinions interpreting § 29-2101(5), we have found
it to impose on defendants a two-prong burden of proof: First,
a criminal defendant must show that the evidence at issue has
been newly discovered since trial, meaning that the evidence
could not, with reasonable diligence, have been discovered and
produced at trial. 4 Second, the defendant also must show that
the evidence at issue is so substantial that with it, a different
verdict would probably have been reached at trial. 5
[4] With regard to the first prong, we have said that whereas
an object is new at the moment that it begins to exist, it is
newly discovered once it is revealed or found out to have
previously been in existence. 6 Evidence is newly discovered
if it existed at the time of trial but has since been uncovered. 7
Because the evidence must have existed at trial for it to be
uncovered after the trial, evidence newly created after trial
does not satisfy § 29-2101(5). 8 In any but a very extraordinary
case in which an utter failure of justice will unequivocally
result, a verdict on the evidence at the trial will not be set
4
Id.
5
Id.
6
Id.
7
See id.
8
See id.
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STATE v. BROWN
Cite as 310 Neb. 318aside and a new trial granted on the basis of evidence of facts
occurring subsequent to such trial. 9
[5] With regard to the second prong, we have explained that
“materiality” refers to newly discovered evidence that is so
potent that by strengthening evidence already offered, a new
trial would probably result in a different verdict. 10 However,
the newly discovered evidence must be competent and credi-
ble. 11 When alleged newly discovered evidence is found to
lack credibility, it cannot be said that it would have produced
a substantial difference in the result had it been offered and
admitted at trial. 12
The district court found that the version of events described
by Curtis at the motion for new trial hearing could not have
been discovered with reasonable diligence, given the consist­
ency of Curtis’ statements during police interviews and in
conversations with the public defender that she did not see
Brown the day Alonzo was murdered and did not know who
had shot him. The district court found that Curtis’ testimony
at the hearing on the motion for new trial, if credible, was
material, because it placed Long at the scene of the crime such
that it implies Long, rather than Brown, was responsible for
Alonzo’s murder.
But the court ultimately found that the newly discovered
­testimony would not have produced a substantial difference in
the result had it been offered and admitted at trial, because it
was not credible. The court found that Curtis’ testimony as to
this new version of events lacked the requisite degree of cred-
ibility and competency necessary to warrant a new trial.
9
Id.10
State v. McCormick, 246 Neb. 271, 518 N.W.2d 133 (1994), abrogated on
other grounds, State v. Thomas, 262 Neb. 985, 637 N.W.2d 632 (2002).
11
See, State v. Costello, 199 Neb. 43, 256 N.W.2d 97 (1977); State v. Seger,
191 Neb. 760, 217 N.W.2d 828 (1974).
12
See State v. Rosales, 3 Neb. App. 26, 521 N.W.2d 385 (1994).
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STATE v. BROWN
Cite as 310 Neb. 318We cannot say this was erroneous. The district court took
into account, among other things, Curtis’ bias toward Brown,
Stamps’ testimony that Brown had said he “had to put [Alonzo]
down,” and the surveillance video. We note that the video
shows the door to Curtis’ residence opened shortly after a male
exited a vehicle with a missing hubcap on the front passenger-
side tire and walked toward Curtis’ residence. A couple of
minutes after the door opened at Curtis’ residence, a male ran
back to the vehicle from the direction of Curtis’ residence and
drove away. Only after the vehicle drove away did the door
to Curtis’ residence open for a second time and an individual
walked out, presumably Curtis discovering Alonzo’s body in
the front yard.
[6,7] Appellate courts do not pass on the credibility of wit-
nesses. 13 Witness credibility is a matter for the finder of fact
and is not to be reassessed on appellate review. 14 The district
court did not abuse its discretion in denying Brown’s motion
for new trial on the ground that Curtis’ new eyewitness account
lacked credibility. We accordingly affirm the district court’s
order denying Brown’s motion for new trial.
[8] Given our disposition, we do not address the State’s
cross-appeal. An appellate court is not obligated to engage
in an analysis that is not necessary to adjudicate the case and
controversy before it. 15
CONCLUSION
For the foregoing reasons, we affirm the district court’s
order denying Brown’s motion for new trial.
Affirmed.
13
See State v. Figures, 308 Neb. 801, 957 N.W.2d 161 (2021).
14
See, State v. Wheeler, 308 Neb. 708, 956 N.W.2d 708 (2021); State v.
Faust, 269 Neb. 749, 696 N.W.2d 420 (2005).
15
Preserve the Sandhills v. Cherry County, ante p. 184, ___ N.W.2d ___
(2021).