State v. Brown , 302 Neb. 53 ( 2019 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
STATE v. BROWN
Cite as 302 Neb. 53
State of Nebraska, appellee, v.
Rolander L. Brown, appellant.
___ N.W.2d ___
Filed January 18, 2019. No. S-17-1039.
1. Constitutional Law: Search and Seizure: Motions to Suppress:
Appeal and Error. When reviewing a trial court’s ruling on a motion
to suppress based on a claimed violation of the Fourth Amendment, an
appellate court applies a two-part standard of review. Regarding histori-
cal facts, an appellate court reviews the trial court’s findings for clear
error, but whether those facts trigger or violate Fourth Amendment
protections is a question of law that an appellate court reviews indepen-
dently of the trial court’s determination.
2. Trial: Evidence: Appeal and Error. A trial court has the discretion to
determine the relevancy and admissibility of evidence, and such deter-
minations will not be disturbed on appeal unless they constitute an abuse
of that discretion.
3. Sentences: Appeal and Error. An appellate court will not disturb a
sentence imposed within statutory limits absent an abuse of discretion
by the trial court.
4. Telecommunications: Records: Warrants: Probable Cause. The gov-
ernment must generally obtain a warrant supported by probable cause
before acquiring cell site location information from a wireless carrier.
5. Constitutional Law: Search and Seizure: Evidence. The exclusion
of evidence obtained in violation of the Fourth Amendment is not a
personal constitutional right. Rather, the exclusionary rule operates as
a judicially created remedy designed to safeguard Fourth Amendment
rights generally through its deterrent effect.
6. Constitutional Law: Search and Seizure: Police Officers and
Sheriffs: Evidence. The exclusionary rule does not apply to evidence
obtained by police in objectively reasonable reliance on a statute later
found to be unconstitutional.
7. Trial: Evidence. Evidence that is irrelevant is inadmissible.
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STATE v. BROWN
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8. Evidence. Evidence is relevant if it has any tendency to make the
existence of any fact that is of consequence to the determination of
the action more probable or less probable than it would be without
the evidence.
9. ____. Relevancy requires only that the probative value be something
more than nothing.
10. Rules of Evidence. Under Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403
(Reissue 2016), relevant evidence may be excluded if its probative value
is substantially outweighed by the danger of unfair prejudice.
11. Evidence: Words and Phrases. Unfair prejudice means an undue tend­
ency to suggest a decision based on an improper basis.
12. ____: ____. Unfair prejudice speaks to the capacity of some concededly
relevant evidence to lure the fact finder into declaring guilt on a ground
different from proof specific to the offense charged, commonly on an
emotional basis.
13. Sentences: Appeal and Error. Where a sentence imposed within the
statutory limits is alleged on appeal to be excessive, the appellate court
must determine whether a sentencing court abused its discretion in con-
sidering and applying the relevant factors as well as any applicable legal
principles in determining the sentence to be imposed.
14. Sentences. In determining a sentence to be imposed, relevant factors
customarily considered and applied are the defendant’s (1) age, (2) men-
tality, (3) education and experience, (4) social and cultural background,
(5) past criminal record or record of law-abiding conduct, and (6) moti-
vation for the offense, as well as (7) the nature of the offense and (8) the
amount of violence involved in the commission of the crime.
15. ____. The appropriateness of a sentence is necessarily a subjective judg-
ment and includes the sentencing judge’s observation of the defendant’s
demeanor and attitude and all the facts and circumstances surrounding
the defendant’s life.
16. ____. Generally, it is within a trial court’s discretion to direct that
sentences imposed for separate crimes be served either concurrently or
consecutively.
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.
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STATE v. BROWN
Cite as 302 Neb. 53
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Papik, J.
Following a jury trial, Rolander L. Brown was convicted
of second degree murder and other offenses arising out of the
death of Carlos Alonzo. Brown appeals his convictions and
sentences, primarily arguing that in light of the U.S. Supreme
Court’s recent opinion in Carpenter v. U.S., ___ U.S. ___, 138
S. Ct. 2206, 201 L. Ed. 2d 507 (2018), the district court erred
by denying his motion to suppress cell site location informa-
tion. We find that the district court did not err in denying
Brown’s motion to suppress and that Brown’s other assign-
ments of error also lack merit. We affirm.
BACKGROUND
In the early morning hours of May 28, 2016, Alonzo was
found dead in the front yard of a home near 20th and Lake
Streets in Omaha, Nebraska. Alonzo died from a single gun-
shot wound to his head. The State filed several charges against
Brown arising out of Alonzo’s death: first degree murder, use
of a deadly weapon to commit a felony, and possession of a
deadly weapon by a prohibited person.
Brown’s Motion to Suppress.
As part of its investigation into Alonzo’s death, the State
submitted an application to the district court under the federal
Stored Communications Act seeking an order compelling the
disclosure of certain records pertaining to a cell phone that evi-
dence showed was used by Brown. The court granted the order,
and the State obtained the records from the relevant wireless
carrier. The records included cell site location information
(CSLI), the details of which are discussed below.
Brown moved to suppress the CSLI on the ground that the
State obtained it in violation of his Fourth Amendment rights.
The district court denied the motion to suppress.
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302 Nebraska R eports
STATE v. BROWN
Cite as 302 Neb. 53
Trial Evidence.
At trial, the State introduced evidence indicating that
Alonzo was shot outside the residence of Doloma Curtis. Both
Alonzo and Brown were dating Curtis at the time. Cell phone
records introduced into evidence showed that Brown was com-
municating with Curtis via text message late in the evening of
May 27, 2016, into the early morning hours of May 28. Cell
phone records also showed that Curtis did not answer several
calls from Brown after 1 a.m. The last such call was made at
2:23 a.m. CSLI from Brown’s cell phone records indicated
that Brown was in the area of 20th and Lake Streets when he
made that call.
At approximately 2:24 a.m., Omaha’s “ShotSpotter” loca-
tion system detected a single gunshot in the vicinity of Curtis’
home. Officers were dispatched to Curtis’ home. When they
arrived, they found Alonzo lying on his back on the side-
walk with a single gunshot wound to the head. During a
subsequent search of the area, officers found a single Smith
& Wesson .40-caliber shell casing in the grass not far from
Alonzo’s body.
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 and headed toward
Curtis’ residence. The male ran back from the direction of
Curtis’ residence a few minutes later and drove out of the
parking lot. Evidence at trial indicated that Brown had access
to and drove a sedan that did not have a hubcap on its front
passenger-side tire.
The State also relied heavily on the testimony of Parris
Stamps. Stamps was a friend of Brown’s. At the time of
Alonzo’s death, Stamps lived near 40th and Boyd Streets with
another friend of Brown’s, James Nelson. Stamps testified that
in the early morning hours of May 28, 2016, Brown arrived
at the house where Stamps and Nelson lived. According to
Stamps, Brown told him and Nelson that he had just come
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STATE v. BROWN
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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. Stamps testified that after Brown shared this infor-
mation, the men were concerned that Brown was “hot.” Based
on this concern, they traveled to Brown’s apartment near 67th
and Grover Streets to retrieve two firearms that belonged
to Nelson.
Stamps was also allowed to testify, over Brown’s objection,
that he and his girlfriend were shot in January 2017 and that as
a result of the shooting, he was hospitalized and his girlfriend
died. Prior to this testimony, the district court instructed the
jury that there was no evidence that Brown was responsible for
this shooting and that the jury was to consider this evidence
only for the effect that it had on Stamps.
Brown’s cell phone records corroborated some elements of
Stamps’ testimony. The cell phone records showed that Brown
called Nelson at 2:25 and 2:26 a.m. They also showed that
Brown was in the area of Nelson’s residence at approximately
2:34 a.m. Brown’s cell phone records also showed that Brown
returned to his apartment near 67th and Grover Streets around
3:15 a.m.
Convictions and Sentences.
The jury found Brown guilty of second degree murder,
possession of a firearm by a prohibited person, and use of a
firearm to commit a felony. The district court sentenced Brown
to 90 to 120 years’ imprisonment for second degree murder,
3 to 50 years’ imprisonment for possession of a firearm by a
prohibited person, and 10 to 20 years’ imprisonment for use
of a firearm to commit a felony. The district court ordered the
sentence for possession of a firearm by a prohibited person to
run concurrently with the sentence for second degree murder
and the sentence for use of a firearm to commit a felony to run
consecutively to the other two sentences.
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STATE v. BROWN
Cite as 302 Neb. 53
Brown appealed his convictions and sentences. We sub-
sequently granted his petition to bypass the Nebraska Court
of Appeals.
ASSIGNMENTS OF ERROR
Brown assigns, restated, that the district court erred (1) by
denying his motion to suppress, because the CSLI was obtained
in violation of his Fourth Amendment rights; (2) by denying
his motion to suppress, because the CSLI was obtained in
violation of the Stored Communications Act; (3) by allowing
Stamps to testify about being shot in January 2017; and (4) by
imposing excessive sentences.
STANDARD OF REVIEW
[1] When reviewing a trial court’s ruling on a motion to sup-
press based on a claimed violation of the Fourth Amendment,
an appellate court applies a two-part standard of review. State
v. Barbeau, 301 Neb. 293, 917 N.W.2d 913 (2018). Regarding
historical facts, an appellate court reviews the trial court’s find-
ings for clear error, but whether those facts trigger or violate
Fourth Amendment protections is a question of law that an
appellate court reviews independently of the trial court’s deter-
mination. Id.
[2] A trial court has the discretion to determine the relevancy
and admissibility of evidence, and such determinations will not
be disturbed on appeal unless they constitute an abuse of that
discretion. Lindsay Internat. Sales & Serv. v. Wegener, 301
Neb. 1, 917 N.W.2d 133 (2018).
[3] An appellate court will not disturb a sentence imposed
within statutory limits absent an abuse of discretion by the trial
court. State v. Steele, 300 Neb. 617, 915 N.W.2d 560 (2018).
ANALYSIS
Fourth Amendment.
Brown contends that by obtaining CSLI from his cell phone
without a warrant supported by probable cause, law enforce-
ment violated his Fourth Amendment rights. Brown argues the
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district court thus erred by denying his motion to suppress. For
the reasons set forth below, we disagree.
CSLI is generated by cell phone providers. Individual cell
phones function by communicating with “cell sites,” radio
antennas that are mounted on towers and other structures.
See Carpenter v. U.S., ___ U.S. ___, 138 S. Ct. 2206, 201 L.
Ed. 2d 507 (2018). When a cell phone connects to a cell site,
a time-stamped record is produced. This record is known as
CSLI. See id. Because the cell phone will connect to the cell
site with the best signal, CSLI can be used to determine the
location of the cell phone when the connection was made. See
id. Cell phone providers collect and store CSLI for their own
purposes, but because it can be used to determine where a cell
phone was at a particular time, it can be useful to law enforce-
ment as well. See id.
In this case, law enforcement relied on the federal statute
known as the Stored Communications Act, see 18 U.S.C.
§§ 2701 to 2711 (2012 & Supp. V 2017), to request and
obtain CSLI relating to the cell phone believed to be used
by Brown. Under the Stored Communications Act, the gov-
ernment may obtain a court order that requires a cell phone
provider to disclose a customer’s records if it can demonstrate
“specific and articulable facts showing that there are reason-
able grounds to believe [the information sought is] relevant
and material to an ongoing criminal investigation.” 18 U.S.C.
§ 2703(d). Section 2703(d) does not require the government
to show probable cause. State v. Jenkins, 294 Neb. 684, 884
N.W.2d 429 (2016).
On May 31, 2016, a city of Omaha police officer submit-
ted to the district court an application requesting an order
compelling disclosure of CSLI pertaining to the cell phone
believed to be used by Brown. The district court issued an
order that same day finding that in the language of § 2703(d),
the applicant “has offered specific and articulable facts show-
ing that there are reasonable grounds to believe that the
records or other information sought are relevant and material
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to an ongoing criminal investigation.” The order compelled
the cellular service provider to turn over the CSLI to the city
of Omaha Police Department. Brown later moved to suppress
the CSLI, contending that it was obtained in violation of his
Fourth Amendment rights.
The district court denied Brown’s suppression motion, find-
ing that the result was controlled by Jenkins, supra. Jenkins,
which was released a few months after law enforcement
obtained the CSLI in this case, held that individuals do not
have a reasonable expectation of privacy in CSLI and that thus,
the acquisition of CSLI does not implicate, let alone violate,
the Fourth Amendment.
[4] While this case was on appeal, however, the U.S.
Supreme Court concluded in Carpenter v. U.S., ___ U.S. ___,
138 S. Ct. 2206, 201 L. Ed. 2d 507 (2018), that individuals do
have a reasonable expectation of privacy in the record of physi-
cal movements captured by CSLI. Based on this conclusion,
the Court held that “the Government must generally obtain a
warrant supported by probable cause before acquiring such
records.” Id., 138 S. Ct. at 2221.
As the State is forced to concede, our decision in Jenkins
was effectively overruled by Carpenter. And, without the ben-
efit of Jenkins, the State also concedes that the acquisition of
CSLI without a warrant supported by probable cause violated
Brown’s Fourth Amendment rights.
The fact that Brown’s Fourth Amendment rights were vio-
lated, however, does not necessarily mean that it was error
for the district court to deny Brown’s motion to suppress. See
Herring v. United States, 555 U.S. 135, 141, 129 S. Ct. 695,
172 L. Ed. 2d 496 (2009) (explaining that application of the
exclusionary rule is not “a necessary consequence of a Fourth
Amendment violation”). Indeed, the U.S. Supreme Court has
observed that the exclusionary rule is to be a “last resort” and
not a “first impulse.” Hudson v. Michigan, 547 U.S. 586, 591,
126 S. Ct. 2159, 165 L. Ed. 2d 56 (2006). We thus proceed to
the question of whether the exclusionary rule applies here.
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[5] The exclusion of evidence obtained in violation of the
Fourth Amendment is “‘not a personal constitutional right.’”
Davis v. United States, 564 U.S. 229, 236, 131 S. Ct. 2419,
180 L. Ed. 2d 285 (2011), quoting Stone v. Powell, 428
U.S. 465, 96 S. Ct. 3037, 49 L. Ed. 2d 1067 (1976). Rather,
the exclusionary rule operates as a judicially created remedy
designed to safeguard Fourth Amendment rights generally
through its deterrent effect. State v. Hoerle, 297 Neb. 840,
901 N.W.2d 327 (2017). With this purpose in mind, the U.S.
Supreme Court has recognized a number of circumstances
in which application of the exclusionary rule would not suf-
ficiently deter Fourth Amendment violations and thus the rule
does not apply. See, e.g., Davis, supra (exclusionary rule does
not apply when officers conduct search in objectively reason-
able reliance on binding appellate precedent); Herring, supra
(exclusionary rule does not apply where officers reasonably
relied on incorrect information in warrant database); United
States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d
677 (1984) (exclusionary rule does not apply when police con-
duct search in objectively reasonable reliance on warrant later
held invalid).
[6] One circumstance recognized to not trigger the exclu-
sionary rule is of particular relevance to this case. In Illinois v.
Krull, 480 U.S. 340, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987),
the U.S. Supreme Court held that the exclusionary rule did not
apply to evidence obtained by police in objectively reasonable
reliance on a statute later found to be unconstitutional. As the
Court explained, unless a statute is “clearly unconstitutional,”
application of the exclusionary rule when the officer acts in
reliance on a statute would not serve the purpose of deterring
Fourth Amendment violations “[i]f the statute is subsequently
declared unconstitutional, excluding evidence obtained pur-
suant to it prior to such a judicial declaration will not deter
further Fourth Amendment violations by an officer who has
simply fulfilled his responsibility to enforce the statute as writ-
ten.” 480 U.S. at 349, 350.
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We have previously followed Krull, declining to apply the
exclusionary rule when officers obtained evidence in reason-
able reliance on a statute later declared unconstitutional. See
Hoerle, supra.
The rationale for not applying the exclusionary rule in
Krull applies with full force here. As summarized above, law
enforcement obtained the CSLI without first securing a war-
rant supported by probable cause, but did so as authorized
by the Stored Communications Act. It cannot be said that by
doing so, law enforcement relied on a statute that was clearly
unconstitutional. At the time officers obtained the CSLI in this
case, many courts had held, as we did in State v. Jenkins, 294
Neb. 684, 884 N.W.2d 429 (2016), that CSLI did not implicate
Fourth Amendment protection. See, e.g., U.S. v. Graham, 824
F.3d 421 (4th Cir. 2016) (en banc); U.S. v. Davis, 785 F.3d
498 (11th Cir. 2015) (en banc); In re U.S. for Historical Cell
Site Data, 724 F.3d 600 (5th Cir. 2013). And, in Carpenter v.
U.S., ___ U.S. ___, 138 S. Ct. 2206, 2214, 201 L. Ed. 2d 507
(2018), while the U.S. Supreme Court ultimately reached a
contrary conclusion, it acknowledged that the question did “not
fit neatly under existing precedents.”
By obtaining the CSLI in this case under the Stored
Communications Act and without the benefit of the U.S.
Supreme Court’s not-yet-issued decision in Carpenter, officers
were merely following the statute as written. That is not the
type of police activity the exclusionary rule seeks to deter. See
Davis v. United States, 564 U.S. 229, 241, 131 S. Ct. 2419, 180
L. Ed. 2d 285 (2011), quoting Leon, supra (“the harsh sanction
of exclusion ‘should not be applied to deter objectively reason-
able law enforcement activity’”).
We are hardly the first court to conclude that CSLI obtained
under the Stored Communications Act prior to Carpenter is not
subject to exclusion. Many other courts have found the same,
and Brown has not directed us to any that concluded otherwise.
See, e.g., U.S. v. Curtis, 901 F.3d 846 (7th Cir. 2018); U.S. v.
Joyner, 899 F.3d 1199 (11th Cir. 2018); U.S. v. Chavez, 894
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F.3d 593 (4th Cir. 2018); U.S. v. Chambers, No. 16-163-cr,
2018 WL 4523607 (2d Cir. Sept. 21, 2018).
Finally, we note that Brown’s only argument against the
application of the exclusionary rule is misplaced. Brown con-
tends that the State should not be able to argue for the first
time on appeal that an exception to the exclusionary rule
applies. Brown argues that he may have been able to intro-
duce factual evidence that would indicate law enforcement
officers did not act reasonably in this case and that thus, the
exclusionary rule should apply. Brown claims he did not place
such evidence into the record at the district court because the
State did not assert there that the exclusionary rule should
not apply even if Brown’s Fourth Amendment rights were
violated. But, in fact, the State did make such an assertion in
the district court. The State primarily argued that there was no
Fourth Amendment violation, but counsel for the State also
argued at a hearing on Brown’s motion to suppress that even
if the Fourth Amendment were violated, the exclusionary rule
should not apply, because the officers acted in good faith.
While it is not clear to us what evidence Brown could have
offered to negate the applicability of Illinois v. Krull, 480 U.S.
340, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987), under these
circumstances, Brown cannot point us to any such evidence,
nor can he claim that he lacked the opportunity to present it to
the district court.
For these reasons, we find that even though the acquisition
of CSLI violated Brown’s Fourth Amendment rights, the dis-
trict court did not err by denying Brown’s motion to suppress.
Stored Communications Act.
In addition to his Fourth Amendment argument, Brown
contends that the CSLI should have been suppressed for
another reason. Brown contends that the affidavit submitted
in support of the court order failed to establish reasonable
grounds to believe that the CSLI was relevant and material to
an ongoing criminal investigation, as required by the Stored
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Communications Act. Once again, we find that Brown’s argu-
ment lacks merit.
We need not analyze the affidavit or the showing required
under the Stored Communications Act in order to dispose of
Brown’s argument. This is so because even assuming the affi-
davit failed to make the required showing under the Stored
Communications Act, it does not follow that the CSLI should
have been suppressed.
The Stored Communications Act provides a number of spe-
cific remedies for violations thereof, but suppression of evi-
dence in a criminal case is not one of them. See 18 U.S.C.
§ 2707(b) and (d). Additionally, the act provides that the
listed remedies are exclusive. 18 U.S.C. § 2708. On this basis,
many courts have found that suppression is not an available
remedy even if evidence is obtained in violation of the act.
See, e.g., U.S. v. Gasperini, 894 F.3d 482 (2d Cir. 2018); U.S.
v. Guerrero, 768 F.3d 351 (5th Cir. 2014); U.S. v. Clenney,
631 F.3d 658 (4th Cir. 2011); U.S. v. Perrine, 518 F.3d 1196
(10th Cir. 2008); U.S. v. Madison, 643 Fed. Appx. 886 (11th
Cir. 2016).
We agree that suppression is not an available remedy for a
violation of the Stored Communications Act, and we thus find
no merit to Brown’s argument that the evidence should have
been suppressed.
Stamps’ Testimony.
Brown next argues the district court erred by allowing
Stamps to testify that months before trial, he and his girlfriend
were shot, and that as a result, he suffered serious injury and
his girlfriend died. Brown argues that this evidence was irrel-
evant and that even if it were relevant, it should have been
excluded under Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403
(Reissue 2016), because its probative value was outweighed
by the danger of unfair prejudice. Brown argues the district
court committed reversible error by allowing the testimony.
We disagree.
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[7-9] Evidence that is irrelevant is inadmissible. Neb. Evid.
R. 402, Neb. Rev. Stat. § 27-402 (Reissue 2016); Lindsay
Internat. Sales & Serv. v. Wegener, 301 Neb. 1, 917 N.W.2d
133 (2018). Evidence is relevant if it has “any tendency to
make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than
it would be without the evidence.” Neb. Evid. R. 401, Neb.
Rev. Stat. § 27-401 (Reissue 2016). The bar for establishing
relevance is not a high one. Relevancy requires only that the
probative value be “‘something more than nothing.’” Lindsay
Internat. Sales & Serv., 301 Neb. at 16, 917 N.W.2d at 144.
We will not reverse a trial court’s determination regarding the
relevancy of evidence unless it constitutes an abuse of discre-
tion. See id.
Some background regarding Stamps’ cooperation in this
case is pertinent to the analysis. Stamps’ cooperation with law
enforcement in the investigation of Brown was inconsistent. It
began in July 2016 while Stamps was under arrest and being
questioned for an unrelated homicide. At that time, Stamps
offered to provide information regarding the death of Alonzo in
exchange for a bond reduction. According to Stamps, he pro-
vided some information implicating Brown in Alonzo’s death,
but not all the information he could have provided. Stamps
received a bond reduction and was released from jail.
Stamps later came to regret this act of cooperation. Stamps
attended Brown’s preliminary hearing with several of Brown’s
other friends. At the hearing, the officer to whom Stamps had
provided information implicating Brown identified Stamps as a
source of information regarding Brown’s involvement. Stamps
responded by executing an affidavit denying the statements the
officer had attributed to him and threatened to sue the officer
for defamation. Stamps testified that he signed the affidavit in
an attempt to be “loyal” to Brown.
Stamps would reverse course again, however. He testified
that on January 26, 2017, he and his girlfriend were shot as
they sat in a car, and that as a result, he was injured and his
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girlfriend died. Stamps testified that after he was released
from the hospital, he came to law enforcement and indicated
a desire to “cooperate on everything that I knew, clear my
conscience.”
The State argued in the district court and now argues on
appeal that the fact that Stamps was shot is relevant because it
explains why he testified against Brown after initially claiming
that an officer defamed him by claiming he offered informa-
tion against Brown. According to the State, Stamps’ experience
as a victim of gun violence prompted a desire to “clear [his]
conscience” and thus was relevant to his credibility. Although
Stamps does not appear to have explicitly testified that his ulti-
mate decision to testify against Brown was influenced by being
shot, that can be fairly implied from his testimony.
We believe the district court did not abuse its discretion by
finding such testimony to be relevant. Stamps wavered between
providing partial information to law enforcement regarding
Brown’s involvement in Alonzo’s death, to denying having
provided any information at all, to providing a fuller account
of Brown’s involvement. The fact that he was shot provided
an explanation for his ultimate decision to testify, and thus the
district court did not abuse its discretion by finding it to be
relevant to his credibility.
[10-12] We also conclude that the district court did not
abuse its discretion by finding that the testimony was not
subject to exclusion under rule 403. Under rule 403, relevant
evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice. State v. Tucker,
301 Neb. 856, 920 N.W.2d 680 (2018). Unfair prejudice means
an undue tendency to suggest a decision based on an improper
basis. Id. It speaks to the capacity of some concededly relevant
evidence to lure the fact finder into declaring guilt on a ground
different from proof specific to the offense charged, commonly
on an emotional basis. Id.
Brown argues that even if the fact that Stamps and his girl-
friend were shot were relevant to his credibility, any relevance
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was outweighed by the danger of unfair prejudice. Brown
argues that upon hearing the testimony that Stamps and his
girlfriend were shot, the jury would assume that Brown or his
associates were responsible. The district court, however, spe-
cifically instructed the jury that there was no evidence Brown
was involved in the shooting and that the evidence was not
being offered for this purpose. The district court’s instruction
was as follows:
[Y]ou’re going to hear some testimony on a line of ques-
tioning that relates to an event in . . . Stamps’ life. It’s
being offered for the limited [purpose] of showing the
effect that that event had on . . . Stamps. There is no evi-
dence of and there is no suggestion by the State that the
event you’re going to hear described had anything at all
to do with the defendant, . . . Brown, in any manner or in
any fashion. This is evidence that you are to hear solely
for the limited purpose . . . of the effect of this event on
the witness, . . . Stamps.
In its final jury instructions, the district court again instructed
the jury regarding evidence received for a limited purpose, stat-
ing, “During the trial, I called your attention to some evidence
that was received for a specific limited purpose. You must con-
sider that . . . evidence only for those limited purposes and for
no other reason.”
We have recently held that while a limiting instruction or an
instruction to disregard does not automatically eliminate any
risk of unfair prejudice, such an instruction can sufficiently
mitigate the risk of unfair prejudice in a particular case. See
State v. Rocha, 295 Neb. 716, 890 N.W.2d 178 (2017). In
Rocha, we held that the district court did not abuse its discre-
tion in admitting opinion statements made by a law enforce-
ment officer in a recorded interview of the defendant. We
noted that the officer’s statements had minimal probative value
and that they “carr[ied] a special risk of unfair prejudice.” Id.
at 744, 890 N.W.2d at 201. Even so, we held that the district
court did not abuse its discretion by admitting the statements.
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We pointed to instructions from the trial court, in which it
informed the jury that it should not consider the officer’s
statements as substantive evidence and that they should not be
given weight in determining the truthfulness of the defendant’s
statements in response. We held these instructions mitigated
the risk of unfair prejudice. Id.
For similar reasons, we reach the same conclusion here.
The district court did not allow the State to introduce evi-
dence suggesting Brown had anything to do with the shoot-
ing of Stamps and his girlfriend. And to the extent any juror
was inclined to speculate about Brown’s involvement, the
district court’s instruction informed jurors that there was “no
evidence” and “no suggestion” Brown had anything to do
with the shooting and that jurors were to consider Stamps’
testimony only for the effect the incident had on him. We
believe these instructions mitigated the risk of unfair prejudice
and thus cannot say the district court abused its discretion by
admitting the testimony.
Excessive Sentences.
Lastly, we address Brown’s claim that he received excessive
sentences. He does not dispute that the sentences imposed were
within statutory limits for his respective offenses. Rather, he
argues that the district court did not adequately account for his
difficult upbringing in fashioning his sentences.
[13-16] Where a sentence imposed within the statutory
limits is alleged on appeal to be excessive, the appellate court
must determine whether a sentencing court abused its discre-
tion in considering and applying the relevant factors as well
as any applicable legal principles in determining the sentence
to be imposed. State v. Tucker, 301 Neb. 856, 920 N.W.2d 680
(2018). Relevant factors customarily considered and applied
are the defendant’s (1) age, (2) mentality, (3) education and
experience, (4) social and cultural background, (5) past crimi-
nal record or record of law-abiding conduct, and (6) motiva-
tion for the offense, as well as (7) the nature of the offense
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and (8) the amount of violence involved in the commission of
the crime. Id. The appropriateness of a sentence is necessar-
ily a subjective judgment and includes the sentencing judge’s
observation of the defendant’s demeanor and attitude and all
the facts and circumstances surrounding the defendant’s life.
Id. And generally, it is within a trial court’s discretion to direct
that sentences imposed for separate crimes be served either
concurrently or consecutively. State v. Leahy, 301 Neb. 228,
917 N.W.2d 895 (2018).
Having reviewed the record, we cannot say that the district
court abused its discretion in sentencing Brown. The district
court stated that in sentencing Brown, it had considered,
among other things, a presentence investigation report and
a sentencing memorandum provided by Brown’s counsel.
Both the report and the sentencing memorandum provided
background on Brown’s difficult upbringing. We thus have
no reason to believe that the district court failed to consider
Brown’s upbringing along with other factors in its sentencing
calculus. Those other factors, however, would include the fact
that Brown had been previously convicted of three felonies
and was found responsible for a shooting that left a man
dead. In light of the relevant sentencing factors, we conclude
that the district court did not abuse its discretion in sentenc-
ing Brown.
CONCLUSION
We conclude that the district court did not err in denying
Brown’s motion to suppress, in admitting the testimony that
Stamps and his girlfriend were shot, or in sentencing Brown.
Consequently, we affirm.
A ffirmed.