State v. Comacho

309 Neb. 494

960 N.W.2d 739

STATE of Nebraska, appellee,

v.Christian Estrada COMACHO, appellant.

No. S-20-619.

Supreme Court of Nebraska.

Filed June 18, 2021

Mitchell C. Stehlik, of Stehlik Law Firm, P.C., L.L.O., for appellant.

Douglas J. Peterson, Attorney General, and Melissa R. Vincent, Lincoln, for appellee.

Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Miller-Lerman, J.

NATURE OF CASE

Christian Estrada Comacho (Comacho) appeals his convictions and sentences in the district court for Hall County for conspiracy to distribute a controlled substance and for aiding and abetting a robbery. Comacho claims on appeal that the district court violated his right to confrontation when it allowed a witness, who had tested positive for COVID-19 and was experiencing symptoms, to testify via two-way interactive video. He also claims that the court erred when it overruled other evidentiary objections and when it denied his motion for a new trial. He further claims that there was not sufficient evidence to support his convictions and that the court imposed excessive sentences. We affirm Comacho's convictions and sentences.

STATEMENT OF FACTS

Charges Against Comacho.

In the operative information filed June 10, 2020, the State charged Comacho with conspiracy to distribute a controlled substance and robbery. The charges against Comacho arose from an incident that was alleged to have occurred on January 22, 2019. The State's theory of the case was generally that Comacho agreed with others to distribute methamphetamine but that when the "transaction" was actually completed, Comacho took cash from the prospective purchaser but did not provide the methamphetamine.

In its opening statement at trial, the State set forth the narrative that it anticipated the evidence would show to support the charges against Comacho. The general narrative was that police officers investigated a shooting that had occurred in the early hours of January 22, 2019, outside an apartment building in Grand Island, Nebraska. Kent Albrecht had sustained a gunshot wound to the face and was being treated in a hospital. From interviews with Albrecht and two other men—Derek Weaver and Monty Goin—police surmised that the three men had discussed Albrecht's desire to purchase a large quantity of methamphetamine.

Weaver knew Comacho and contacted him regarding Albrecht's intention to purchase methamphetamine. Comacho agreed to assist. Based on his communications with Comacho, Weaver traveled with Albrecht and Goin to Grand Island, where Comacho lived. The three went to Grand Island with the plan that Comacho would connect them with other individuals who would provide the methamphetamine. Albrecht and Weaver picked up Comacho and, at Comacho's direction, drove to the parking lot of an apartment building. When another vehicle entered the parking lot, Comacho left the vehicle driven by Albrecht. After that point, Comacho returned a short while later and told Albrecht that he would need to pay cash up front in order to purchase the methamphetamine. Albrecht had brought $5,000 in cash with him, but told Comacho he would not give him the cash until he saw the methamphetamine. After some back and forth in which the other vehicle left the parking lot and Comacho told Albrecht that the deal was off if he did not pay the cash up front, Albrecht eventually gave the $5,000 cash to Comacho. Comacho walked away from the Albrecht vehicle with the cash toward the other vehicle. Albrecht and Weaver waited with the expectation that Comacho would return with the methamphetamine.

However, Comacho did not return, and instead, shots were fired at Albrecht's vehicle and Albrecht sustained a gunshot to his face. The State claimed that after the shooting, Comacho may have left the scene in the other vehicle or, in any event, did not leave with the Albrecht vehicle. Police officers who investigated the shooting and Albrecht's, Weaver's, and Goin's versions of the events that led up to the shooting, executed a search warrant of Comacho's residence and found cash inside a boot.

Weaver's and Albrecht's Testimony at Trial.

Weaver and Albrecht both testified at Comacho's trial. Weaver generally testified that in the days prior to January 22, 2019, he had had conversations with two acquaintances, Comacho and Goin. Weaver learned that Goin was looking for someone from whom methamphetamine could be purchased, and Weaver believed that Comacho could provide methamphetamine. Goin informed Weaver he wanted to purchase a pound of methamphetamine and could pay $5,000 for it. Weaver later learned that Goin was inquring on behalf of Albrecht, who would be purchasing the methamphetamine.

On the afternoon of January 21, 2019, Weaver communicated to Comacho via text messaging that he had a potential purchaser willing to pay $5,000 and that he could come to Grand Island. Comacho replied, "Come thru then." They discussed the amount of methamphetamine needed and arranged a time Weaver and the purchaser could meet with Comacho. Comacho expressed agreement with the plans. Weaver continued communicating with Comacho via text messaging to update plans, and Comacho eventually asked Weaver to pick him up at work. Weaver accompanied Goin to Albrecht's residence, and from there, the three went to Grand Island.

Albrecht testified that in January 2019, he was living in Elm Creek, Nebraska. Goin was a longtime acquaintance of Albrecht's, and in January 2019, Albrecht discussed with Goin the possibility of obtaining some methamphetamine. Albrecht told Goin he was interested in purchasing a pound of methamphetamine and would be willing to pay $5,000 for it. On January 21, Goin informed Albrecht that he had located someone in Grand Island who could provide that quantity of methamphetamine at that price. Goin and Weaver came to Albrecht's residence; Albrecht and Weaver had not met prior to that time. Albrecht offered to drive the three to Grand Island in his vehicle. By the time they arrived in Grand Island, Weaver and Goin informed Albrecht that they would need to pick Comacho up after work at his place of employment. Because there was some time to spare, the three went to wait at a friend's house in Grand Island.

Albrecht further testified that when it was time to pick up Comacho, Weaver went with Albrecht but Goin stayed at the friend's house. It was then close to midnight, and Weaver directed Albrecht to Comacho's place of employment. Albrecht waited in his vehicle while Weaver went to find Comacho. Sometime later, Weaver returned with Comacho and the two got into Albrecht's vehicle. Comacho directed Albrecht where he should drive, and eventually, they pulled into the parking lot of an apartment building. Comacho directed Albrecht to park at the far end of the lot and said that they would need to wait for the people who had the methamphetamine.

Eventually, Albrecht saw another vehicle pull into the parking lot and park behind his vehicle. Comacho said, " ‘They're here,’ " and he told Albrecht to give him the money so he could get the methamphetamine. Albrecht replied that he would not give Comacho the money until he saw the methamphetamine. Comacho got out of Albrecht's vehicle and went to speak with the occupants of the other vehicle. Comacho returned and told Albrecht that they would not give him the methamphetamine and that they wanted the money first. Albrecht offered to give half of the cash up front and the other half after he had the methamphetamine. Comacho made a call and then told Albrecht they still wanted all the money.

Albrecht and Comacho continued discussing the matter for another several minutes. Albrecht testified that Comacho was becoming angry and continued to say that Albrecht should give him the money. Albrecht became "tired of the whole deal" and "wanted to get it over with," and therefore, he gave the cash to Comacho. Albrecht testified that the $5,000 cash included five $100 bills, with $20 bills making up the remaining balance.

Albrecht testified that after he gave Comacho the cash, Comacho got out of Albrecht's vehicle and walked back in the direction he had walked before. Shortly thereafter, Albrecht heard "three or four" gunshots. Albrecht testified that he thought the others had shot Comacho. Albrecht then heard a few more gunshots. He observed that his driver's-side window had shattered, and he realized that a shot had hit him in the face. Albrecht "felt like [his] face exploded," and he saw blood. Weaver told Albrecht they needed to leave. Albrecht put the vehicle in reverse and left the parking lot. Albrecht testified that he made no attempt to retrieve his money or to collect the methamphetamine because he did not want to be shot again and he needed to get to a hospital. Albrecht testified that he did not see Comacho or anyone else as he drove out of the parking lot, that he never heard anything more from Comacho, and that he never retrieved his money or received the methamphetamine.

Testimony by Timothy Champion Via Two-Way Interactive Video.

Other witnesses at trial included various law enforcement officers who investigated the shooting and the events preceding and surrounding it. One of those witnesses was Timothy Champion, an investigator with the Grand Island Police Department. Champion generally investigated crimes in the child abuse unit, but he became involved in the investigation of the present case because he was fluent in Spanish and was asked to translate portions of a phone call made by Comacho from prison after he had been arrested.

On July 23, 2020, the date the State wished to call Champion to testify in this case, Champion had tested positive for COVID-19 and was experiencing symptoms. The State requested that Champion be allowed to testify by two-way interactive video. Comacho objected to Champion's testifying by video, and he asserted that it would violate his Sixth Amendment right to confrontation if Champion was not required to testify in court.

After the State and...