State v. Barrow

STATE OF NEBRASKA, APPELLEE, v. KENDELL L. BARROW, APPELLANT.

No. A-17-1010.

NEBRASKA COURT OF APPEALS

January 8, 2019

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

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: THOMAS A. OTEPKA, Judge. Affirmed in part, and in part vacated and remanded with directions.

Thomas C. Riley, Douglas County Public Defender, Yvonne Sosa, and, on briefs, Jacquelyn R. Morrison for appellant.

Douglas J. Peterson, Attorney General, and Stacy M. Foust for appellee.

MOORE, Chief Judge, and RIEDMANN and WELCH, Judges.

WELCH, Judge.

INTRODUCTION

Kendell L. Barrow appeals his convictions of possession of a firearm by a prohibited person and second offense carrying a concealed weapon. He assigns that the court erred by not requiring the State to produce evidence required by Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); that the court erred by denying his motion for a mistrial on the basis of unfairly prejudicial testimony placed before the jury; and that the court imposed an excessive sentence on his conviction for possession of a firearm by a prohibited person. We affirm his convictions, but find plain error in the sentence imposed on the conviction for second offense carrying a concealed weapon. We therefore vacate that sentence only and remand the cause with directions.

STATEMENT OF FACTS

At 2:10 p.m. on the afternoon of January 7, 2017, Omaha police officer Shundale Bynum began his shift which was to last until 10:40 p.m. At the beginning of his shift, he inspected his cruiser pursuant to standard operating procedure (SOP), and did not find anything located in the backseat area of his cruiser. A little over an hour later, Officer Bynum and fellow officer, Phillip Payton, were dispatched to a domestic disturbance. After the victim allowed the officers to enter the home which had been identified as the location of the domestic disturbance, they located Barrow. The officers performed a pat-down search of Barrow which did not reveal any weapons. After questioning, Barrow was arrested and searched incident to arrest, including a search of his waistline and pockets. This search also failed to reveal any weapons.

Officer Bynum transported Barrow to the Douglas County Correctional Center and booked him for two misdemeanors. The entire incident, from approaching the house to entering the Douglas County Correctional Center booking area, was recorded on Officer Bynum's body camera. The officers did not locate a weapon until that night when Officer Bynum performed a post-shift inspection and found an unregistered gun on the back floorboard of his cruiser. Following that discovery, Bynum put on gloves, retrieved the gun, placed it into a property envelope, which he then sealed. Bynum transported the sealed envelope containing the gun to the "crime lab" for forensic analysis including fingerprint and DNA processing. Barrow was identified as the major DNA contributor on the gun and the probability of an unrelated individual matching the major DNA was approximately 1 in 34.8 nonillion. As a result of the discovery of the gun, DNA swabbing, and DNA testing results, Barrow was charged with count 1, possession of a weapon by a prohibited person and count 2, carrying a concealed weapon.

Prior to the scheduled jury trial in this case, Barrow filed a motion for discovery. During a hearing thereon, defense counsel stated that he had previously requested any emails in possession of the county attorney's office regarding Barrow, "specifically any and all emails from the Omaha Police Department regarding their prior contacts with Mr. Barrow." Defense counsel further stated that the prosecution had informed defense counsel that it was in possession of an email where at least one member of the Omaha Police Department discussed prior contacts and concerns with Barrow. Defense counsel also noted receiving a portion, but not all portions, of the email. Defense counsel requested that the State be ordered to comply with the request and turn over remaining portions of the subject email. Defense counsel argued "I believe that it said . . . something to the extent of how many times are we going to have to catch [Barrow] or find [him] with a gun before he's put away?" The email chain requested by defense counsel, which this court received under seal, was from September 2011. None of the officers in the email chain testified at trial.

At the June 2017 trial, Bynum testified that, per SOP, he inspected his cruiser at the beginning of his shift and did not see a handgun. He testified that there are no areas that a handgun could be hidden in the backseat and that the floorboard of the cruiser curves up in a way that prevents items from sliding back and forth between the front and back of the cruiser. Bynum then testified regarding locating the gun and booking it into property and the State questioned him on how he associated the gun with Barrow:

Q After you had booked these items into property, did you . . . take any actions based upon what you found in the back seat of your cruiser?

A After I had everything booked in that night, I reviewed the call details and also attempted to make contact with the original caller.

Q In regards to original caller for what incident?

A The possession of the handgun.

Q When you say "original caller," for one of the dispatches you had received that particular shift?

A Yes, for . . . the original caller who called in the disturbance.

Q Okay. And why are you picking out or why did you find it significant that you had to focus on that particular call?

A Because that was the only call where the caller mentioned a handgun.

MR. SLADEK: Objection, Your Honor. I'll move to strike.

MR. MASTELLER: And I would agree to strike that, sir. Maybe I'll ask a different question.

THE COURT: Disregard the last answer, it's stricken.

BY MR. MASTELLER:

Q Now, was that the only call in which as a result of the call someone was placed in the back seat of your cruiser?

A Yes.

Barrow's counsel requested a sidebar, suggested a mistrial might be appropriate, but did not specifically request a mistrial. The court responded that "I think that at least you've made your record and I told [the jury] to disregard it. Thank you." The prosecutor continued his examination of Bynum. After a few more questions, the prosecutor concluded his questioning of Bynum, the jury was released on a recess, and defense counsel requested a mistrial:

MR. SLADEK: Just briefly, Judge. Thank you for your patience. Before we broke, there was some testimony elicited from Officer Bynum in which he indicated that the original call which brought him into contact with Mr. Barrow, the defendant, included a statement about there being a gun involved. Obviously, I realize that the Court, based on my objection, struck that testimony and ordered that the jury disregard the testimony. In an abundance of caution, I'll ask the Court to consider a motion for a mistrial. On the motion for a mistrial, I don't believe that there was any malicious intent involved on Mr. Masteller's part or Officer Bynum's part, but because of the open-ended question, I think that it could elicit that kind of answer. And that will be my basis for the motion for mistrial, Judge.

THE COURT: Thank you. Did the State wish to be heard?

MR. MASTELLER: Your Honor, I would ask you to overrule that motion. The reference to a firearm was very brief. There's no indication that the firearm referenced in the initial call was actually this firearm which is the subject of this prosecution.

I believe Your Honor appropriately struck the testimony and also appropriately instructed the jury to disregard that testimony, which I believe would cure any type of prejudice from the jury having heard that brief reference to a firearm.

THE COURT: Thank you. The motion is overruled.

The jury found Barrow guilty of the charged offenses.

After an enhancement hearing, the court found that Barrow had previously been convicted of carrying a concealed weapon. At the sentencing hearing, the court stated that, in determining the appropriate sentences for Barrow, he considered factors including the defendant's age, mentality, education, experience, social and cultural background, his past criminal record, the motivation for the offense and the nature of the offense, and the presence or absence of violence. The court then sentenced Barrow to 10 to 15 years' imprisonment for count 1, (possession of a firearm by a prohibited person) and 1 to 2 years' imprisonment for count 2 (second offense carrying a concealed weapon). The court ordered count 2 to be served concurrently to count 1 and granted Barrow 248 days credit for time served. The State immediately informed the court: "Your Honor, I don't believe you can do an indeterminate sentence on Count 2. It's a Class IV." The court then "corrected" Barrow's sentence on count 2 to 1 year's imprisonment to be served concurrently to count 1. Barrow timely appeals to this court and is represented by the same counsel that represented him at trial and sentencing.

ASSIGNMENTS OF ERROR

Barrow assigns that the district court (1) erred in denying his discovery motion requesting the State produce the 2011 email chain between the county attorney and the Omaha Police Department, (2) abused its discretion by denying his motion for a mistrial following Officer Bynum's testimony governing a call mentioning a handgun, and (3) abused its discretion by imposing an excessive sentence for his conviction of possession of a firearm by a prohibited person.

STANDARD OF REVIEW

Discovery in a criminal case is generally controlled by either a statute or court rule; therefore, unless granted as a matter of right under the Constitution or other law, discovery is within the discretion of a trial court, whose ruling will be upheld on appeal unless ...