State v. Brown

310 Neb. 318

965 N.W.2d 388

STATE of Nebraska, appellee and cross-appellant,

v.Rolander L. BROWN, appellant and cross-appellee.

No. S-21-112.

Supreme Court of Nebraska.

Filed October 22, 2021

Thomas C. Riley, Douglas County Public Defender, for appellant.

Douglas J. Peterson, Attorney General, and Melissa R. Vincent, Lincoln, 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 evidentiary 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 sentenced 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 convictions and sentences.¹ Now Brown appeals the district court's overruling of his motion for new trial.

EVIDENCE 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 building 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 someone exits.

At approximately 2:24 a.m., Omaha's "ShotSpotter" location 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 Brown 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’ testimony, 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 conducted 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 established 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 dispatch service.

The 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 proffer 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 previously 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 affidavit. 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 seeing Brown, but that Brown knew of Alonzo. Curtis testified that on the night of Alonzo's death, she was in the bathroom and 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 testified 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 testified that between her arrest and her sentencing, the prosecutor offered to allow her to plead to a misdemeanor if she was willing 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.

DISTRICT 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...