State v. Bradley

STATE OF NEBRASKA, APPELLEE, v. DONTEVIAN L. BRADLEY, APPELLANT.

No. A-17-644.

NEBRASKA COURT OF APPEALS

August 14, 2018

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 Lancaster County: LORI A. MARET, Judge. Affirmed.

Matthew K. Kosmicki for appellant.

Douglas J. Peterson, Attorney General, and Joe Meyer for appellee.

PIRTLE, RIEDMANN, and BISHOP, Judges.

BISHOP, Judge.

I. INTRODUCTION

Dontevian L. Bradley was convicted by a jury of possession of a deadly weapon (firearm) by a prohibited person, terroristic threats, use of a deadly weapon (firearm) to commit a felony, and tampering with a witness. He was found not guilty of a third degree domestic assault charge. The Lancaster County District Court sentenced Bradley to consecutive sentences totaling 18 to 27 years' imprisonment. Bradley raises a number of errors on appeal; we affirm.

II. BACKGROUND

On the morning of November 15, 2016, Bradley was arguing with his girlfriend outside an apartment building. Roofers working on a nearby house verbally intervened after the argument became physical. Bradley, upset at the roofers' intervention, procured a handgun from nearby and pointed it at the roofers while threatening them. Bradley then resumed arguing with his girlfriend. The police were called, and Bradley was arrested. The police were unable to locate a handgun.

1. PROCEDURAL BACKGROUND

A criminal complaint was filed against Bradley in the county court for Lancaster County on November 16, 2016, charging him with possession of a firearm by a prohibited person and terroristic threats. His initial bond was set at "$50,000 Ten Percent Allowed." His case was bound over to the district court, and on January 4, 2017, an information was filed charging Bradley with possession of a firearm by a prohibited person, terroristic threats, and third degree domestic assault.

Bradley filed a motion for a bond review hearing and the State filed a motion to amend the information. A hearing on those motions took place on January 9, 2017. The court granted the State's motion and an amended information was filed adding a charge for tampering with a witness or informant. Bradley's motion to reduce his bond amount was denied.

The State filed a second motion to amend the information on February 22, 2017. A hearing took place on February 23, and the State was granted leave to file a second amended information adding a charge for use of a firearm to commit a felony. Bradley's counsel made an oral motion to reduce his bond amount to "$40,000, 10 percent," but the court denied the motion. The court stated that a "$50,000 percentage bond based upon these charges, I think, is, frankly, a gift." The State also filed a motion to endorse three additional witnesses on April 20, which the court granted; only one of the additional witnesses, Ty S., ended up testifying.

On May 2, 2017, the day before trial was to commence, a hearing for "a bond swear" took place. Bradley had posted the previously set bond, however, the State made an oral motion to increase Bradley's bond to "$100,000, percentage" based on the additional charges and its assertions that several of its witnesses had reported being threatened regarding their involvement in the case. The State's motion was granted, and Bradley's bond was increased to "$100,000, percentage." Bradley also made an oral motion at the hearing to continue the trial in order to depose a witness (the girlfriend), which the court denied.

2. TRIAL

Bradley's trial commenced on May 3, 2017. During trial, the parties stipulated that Bradley had previously been convicted of a felony. A summary of the pertinent testimony follows.

(a) State's Evidence

(i) Evidence Relevant to Firearm and Terroristic Threats Charges

Bradley was 20 years old at the time of trial. His girlfriend was 17 years old. (We will continue to refer to this person as Bradley's girlfriend although she testified at trial that she and Bradley had broken up "[m]onths ago.") Bradley's girlfriend testified that she went to see Bradley at his apartment to "argue with him" at approximately 4 a.m. on the morning of November 15, 2016. She had seen him with another female on a mutual friend's "Snapchat." The other female, who was 16 years old, was at Bradley's apartment when she arrived. Bradley and his girlfriend began arguing, and at some point the argument moved outside. Bradley told his girlfriend to leave, which she did, but she returned when she realized she did not have her cell phone. She and Bradley began arguing again, and the argument became physical. Bradley held her against a wall by her throat, and she acknowledged that Bradley had also hit her in the face, but she did not recall exactlywhen that happened or how he hit her. Nearby roofers began to yell down to intervene, and Bradley responded to them "to mind their business." The girlfriend walked away for a couple of minutes, and when she returned, Bradley was in the middle of the alley and "everybody was yelling." The girlfriend said Bradley hit the windshield of her car with his fist. Police arrived and arrested Bradley. She stated on cross-examination that she never saw Bradley with a gun.

The 16-year-old female testified that she was at the apartment when Bradley's girlfriend arrived, and the argument between Bradley and his girlfriend eventually moved outside where it escalated and became physical. She said there were two males who had been at the apartment, and after she saw Bradley slap his girlfriend, she went to get one of the males to stop Bradley from hitting his girlfriend. Bradley came around the corner of the building and asked one of the males, who had a gun in the waistband of his pants, to hand him the gun. Bradley took the gun and was "waiving it" at the roofers. The female remembered Bradley racking the slide of the gun one time while he was standing by his girlfriend's car. The 16-year-old testified that "[a]t some point," one of the males came and grabbed the gun and took off with it, "and then the police just so happen[ed] to show up, like, a minute later."

Nathaniel W., Lavon M., Ty S., and another worker were roofing a house across the alley from an apartment building when they noticed a woman and a man, later identified as Bradley, arguing outside of the apartment building. Nathaniel said he saw the couple arguing and "one thing kind of led to another, and [Bradley] started putting his hands on [the woman's] throat or her neck." Lavon testified that Bradley grabbed the woman by the shoulders and "slammed her against the car," and later grabbed her by the neck as she was "swinging on him." Lavon said the other roofers wanted to call the police, but Lavon did not want to. Instead he yelled out to Bradley something like, "Hey, cool out, chill out," though he did not recall the exact words he used.

According to Nathaniel, Bradley told the roofers "to mind [their] own business," and made a comment "about being in a gang, and then he [said] that he could kill all of us if he wanted to." Bradley went around the corner of the apartment building, out of Nathaniel's view, and returned approximately 30 seconds later with a gun. According to Nathaniel, Bradley racked the slide of the gun twice, ejecting a round each time, and told the roofers "'I only need one to kill you.'" Nathaniel testified that Bradley then walked backed to an alleyway where he could not see him, and Nathaniel told his boss to hide, saying, "he has a gun, man, . . . [H]ide, he has a gun." When Bradley came back from "around the corner," Nathaniel no longer saw the gun, and Bradley continued to argue with the female. Nathaniel and other workers went to the other side of the roof "to be on the safe side" because, "[w]ell, he pulled the gun." When asked if he thought he might get shot at, Nathaniel responded, "Yes."

Lavon testified that after he tried to get Bradley to calm down, Bradley said, "everybody in the mother fucking hood mind their own fucking business." Lavon told Bradley he did not think there were any hoods in Lincoln. Bradley "and his homies walked in the house and proceeded to come back with a .380 Hi-Point gun and proceeded to point it at us." Bradley "pointed the gun and racked it back," and said, "'It only takes one to kill you.'" Lavon said Bradley "pointed the handgun, cocked it back two times," and Lavon thought, "Oh, shit. He has a gun." Lavon explained that when you "rack the slide, you're basically putting a bullet in the chamber. You rack it once, you put a bullet in there. You rack it again, it ejects the bullet out beside the gun." Although Lavontestified that Bradley "was just upset about the situation that happened," and "didn't want to cause me no physical harm," Lavon said one of the other workers was nervous and started crying.

Lavon, who was born and raised in Chicago, Illinois, said he was familiar with guns because he used to be an active gang member. He also testified that the gun Bradley used was a ".380 Hi-Point," which he knew because he had owned one previously. Lavon was shown a picture of a gun (exhibit 7), which he said was similar to the handgun that he saw Bradley holding. Lavon also testified about Bradley hitting the windshield of the girlfriend's car with the handgun.

Ty testified he saw Bradley with the female arguing in a parking lot. He was up higher on the roof than where Lavon was working. After another roofer said something, Ty turned around and saw Bradley with the female "in a choke hold up against the brick building." However, Ty did not watch "any more than 15 seconds," and turned around and started shingling again. He never saw Bradley with a gun, but he did hear a sound "like glass shattering."

One of the roofers called the owner of the roofing company to report what had happened. The owner then came over to their location...