In re Quiotis C.

1

32 Neb.App. 932

In re Interest of Quiotis C., Jr.. a child under 18 years of age State of Nebraska, appellee, v. Quiotis C., Jr., appellant.

No. A-23-495

Court of Appeals of Nebraska

June 4, 2024

1. Appeal and Error. An alleged error must be both specifically assigned and specifically argued in the brief of the party asserting error to be considered by the appellate court.

2. ____ . In appellate proceedings, the examination by the appellate court is confined to questions which have been determined by the trial court.

3. Courts: Appeal and Error. An appellate court will not consider an issue on appeal that was not passed upon by the trial court.

4. Constitutional Law: Criminal Law: Jury Trials. Both the Nebraska and the U.S. Constitutions mandate a right to a jury trial for criminal trials.

5. Constitutional Law: Juvenile Courts: Jury Trials. A jury trial is not required under the U.S Constitution in a juvenile court's adjudication.

6. Constitutional Law: Statutes: Juvenile Courts: Jury Trials. Under Nebraska statutes, a juvenile court proceeding is a civil proceeding, and under the doctrine of parens patriae, the constitutional guarantees of a jury trial and the incidents thereto are not applicable to a juvenile proceeding.

7. Constitutional Law: Criminal Law. The purpose of the structural error doctrine is to ensure insistence on certain basic, constitutional guarantees that should define the framework of any criminal trial.

8. Juvenile Courts: Appeal and Error. The standard of review for juvenile cases is de novo on the record; however, when evidence is in conflict, the appellate court may give weight to the fact that the trial court observed the witnesses and accepted one version of the facts over the other.

9. Witnesses: Evidence: Appeal and Error. An appellate court will not reevaluate the credibility of witnesses or reweigh testimony but will review the evidence for clear error.

10. Juvenile Courts: Proof. When an adjudication is based upon Neb. Rev. Stat. § 43-247(1), (2), (3)(b) or (4) (Reissue 2016), the allegations must be proved beyond a reasonable doubt.

11. Criminal Law: Evidence: Police Officers and Sheriffs. The crime of tampering with physical evidence, as defined by Neb. Rev. Stat. § 28-922(1)(a) (Cum. Supp. 2022), does not include mere abandonment of physical evidence in the presence of law enforcement.

12. Criminal Law: Evidence. To "conceal" or "remove" physical evidence in the context of Neb. Rev. Stat. § 28-922(1)(a) (Cum Supp. 2022), is to act in a way that will prevent the evidence from being disclosed or recognized.

13. Motions for Mistrial: Prosecuting Attorneys: Waiver: Appeal and Error. 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.

Appeal from the Separate Juvenile Court of Douglas County: Matthew R. Kahler, Judge. Affirmed.

Timothy L. Ashford for appellant.

Laura Lemoine, Deputy Douglas County Attorney, for appellee.

Pirtle, Chief Judge, and Riedmann and Bishop, Judges.

Riedmann, Judge.

I. INTRODUCTION

This appeal raises the issue of a juvenile's rights when adjudicated in the juvenile court for violation of criminal statutes. At the heart of the juvenile's argument is his contention that he was entitled to a jury trial. He also argues the evidence was insufficient to support his adjudication. Following our review of the record, we affirm.

II. BACKGROUND

Robert Stolinski hosted a pool party at his residence on September 5, 2022. Among the group of attendees were Mister Parker Brandon Butler; Quiotis C, Sr. (also known as Tiger); Tiger's 14-year-old son, Quiotis C, Ir. (Quiotis); and Quiotis^:8-year-old cousin, R.S.

1. Parker and Tiger's Altercation

Tiger, Quiotis, and R.S. were outside the Stolinski residence when Parker went to get money from his car. While walking back to the residence, Parker and Tiger exchanged words. Parker punched Tiger in the face, causing him to collapse and knocking him unconscious.

Parker continued to approach Tiger after rendering him unconscious. At some point during the altercation, Quiotis gained possession of a handgun. Witness testimony reported hearing four shots that were fired. According to Quiotis, the first two shots were warning shots; the other two shots struck Parker, one in the shoulder and one in the back. The gunshot wounds caused Parker to retreat to the Stolinski residence where partygoers called the 911 emergency dispatch service. Parker later died. Quiotis fled the scene.

A neighbor, Lawrence Summers, also called the 911 dispatch service to report a disturbance shortly after he heard gunshots nearby. He reported to the 911 dispatcher that he saw a "kid" hiding in the field along the ridgeline. He described the kid as running south on the street that ran the length of the field. Summers relayed that the kid had "something in his hand but it didn't look like a gun or anything." Summers would later identify Quiotis as the kid he witnessed in the field.

Officers arrested both Tiger and Quiotis. Tiger and Quiotis were transported to police headquarters where they both invoked their right to remain silent and their right to counsel. Photographs were taken of Tiger, who had a swollen lip and discoloration on the left side of his face. Tiger testified at trial that he sustained a severe concussion and a black eye as a result of the altercation. Quiotis had no physical injuries.

2. Locating Evidence After Shooting

The day after the shooting, officers fanned out throughout the neighborhood and nearby field to locate additional evidence. Summers directed them to the area where he had seen Quiotis the day before. Through their search, officers were able to locate five pieces of a handgun, all within 10 feet of one another.

Witnesses detailed they heard multiple shots on September 5, 2022, but the physical evidence only evinced two shots were fired. Officers located only one shell casing at the scene. The officer that collected the individual pieces of the firearm from the field tested each piece for fingerprints, then reassembled the handgun. The reassembled handgun was delivered to the forensics investigation unit where it was tested and determined to be functional. Ballistics matched the shell casing to the handgun.

On September 7, 2022, the State filed a petition in the separate juvenile court of Douglas County, alleging under count I that Quiotis had committed manslaughter and under count II that Quiotis had used a firearm to commit a felony. At the detention hearing, Quiotis entered a plea of denial to both counts, and the court ordered that Quiotis be detained in the Douglas County Youth Center until further order.

3. Pretrial Motions

Prior to trial, Quiotis filed a series of motions with the juvenile court. On October 14, 2022, Quiotis filed a motion for request for bond review. The juvenile court denied the motion and instead ordered that Quiotis be released to the custody of juvenile probation once placement at the juvenile justice center was secured. Subsequently, on January 11, 2023, the court entered a release order directing that Quiotis be placed at the Douglas County Youth Center but ordering that he be rescreened for the "HOME Program," and if accepted, to reside in the home of his mother.

On January 16, 2023, Quiotis motioned for placement in the "H.O.M.E. Program." The juvenile court dismissed the motion as moot. It explained it previously ordered the H.O.M.E. Program to screen Quiotis and for Quiotis to be released to the H.O.M.E. Program if he was accepted. Because Quiotis' placement in the H.O.M.E. Program was contingent upon his acceptance into the program and not subject to court order, the court stated it had addressed Quiotis' motion to the fullest extent possible.

On March 6, 2023, the State filed an amended petition. In addition to the original two counts of manslaughter and use of a deadly weapon (firearm) to commit a felony, it added two additional counts: count III, tampering with physical evidence, and count IV, possession of a handgun by a minor.

On March 12, 2023, Quiotis filed a motion to appoint an expert. The juvenile court denied Quiotis' motion. At a preliminary hearing on the amended petition on March 13, Quiotis entered a plea of denial to all four counts.

(a) Amended Plea in Abatement

On March 26, 2023, Quiotis filed an amended plea in abatement. He claimed that he did not have a meaningful preliminary hearing for counts I and II when the juvenile court held the preliminary hearing for counts III and IV. Quiotis also requested to take the depositions of Officer Jordan Brandt and Omaha Police Chief Todd Schmaderer.

The juvenile court denied Quiotis' amended plea in abatement. It explained there is no procedure in the Nebraska Juvenile Code to allow for a plea in abatement and a plea in abatement "typically involves a review by the District Court of a finding of probable cause by the County Court." It noted that Quiotis had also already entered a plea of denial as to the amended petition on March 13, 2023. It granted Quiotis' request to take the deposition of Brandt but denied his request to depose Schmaderer because he was not listed as a witness and there was no evidence that he was directly involved in any aspect of the investigation for this matter.

(b) Motion for Juvenile Jury Trial and Motion to Declare Statutes Unconstitutional

On April 12, 2023, Quiotis filed numerous motions, including a motion for a juvenile jury trial, a motion to allow court payment for an expert, and a motion to declare numerous statutes unconstitutional, specifically, Neb. Rev. Stat §§ 28-305 (Reissue 2016),...