State v. Davis

310 Neb. 865

969 N.W.2d 861

STATE of Nebraska, appellee,

v.Raymond T. DAVIS, appellant.

No. S-21-224.

Supreme Court of Nebraska.

Filed February 4, 2022

Kelly S. Breen, of Nebraska Commission on Public Advocacy, Lincoln, for appellant.

Douglas J. Peterson, Attorney General, and Matthew Lewis, for appellee.

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

Papik, J.

Following a robbery that resulted in the victim's death, Raymond T. Davis was convicted of three felonies: first degree murder, conspiracy to commit robbery, and use of a deadly weapon other than a firearm to commit a felony. On direct appeal, Davis challenges the sufficiency of the information's charge of conspiracy, the sufficiency of the evidence to convict him, and the State's alleged impeachment of its own witness. Discerning no basis for reversal, we affirm.

BACKGROUND

Information.

In 2018, Brent Quigley was found dead, apparently from stab wounds sustained during a home robbery. Following an investigation, Davis was among multiple people charged in the district court for Sarpy County in connection with Quigley's death.

Davis was charged by information with the following felonies: first degree murder, in violation of Neb. Rev. Stat. § 28-303 (Cum. Supp. 2020); robbery, in violation of Neb. Rev. Stat. § 28-324(1) (Reissue 2016); conspiracy to commit robbery, in violation of Neb. Rev. Stat. § 28-202 (Cum. Supp 2020); and use of a deadly weapon other than a firearm to commit a felony, in violation of Neb. Rev. Stat. § 28-1205(1)(a) (Reissue 2016).

Relevant here, the conspiracy charge stated:

COUNT 3: CONSPIRACY TO COMMIT ROBBERY

On or about the 24th day of June, 2018, ... Davis, with the intent to promote or facilitate the commission of a felony, did agree with one or more persons that they or one or more of them would engage in or solicit the conduct or cause or solicit the result specified by the definition of the offense of Robbery, and he or another person with whom he conspired did commit an overt act, to-wit: Robbery in pursuance of the conspiracy, in violation of Section 28-202 ... (CLASS II FELONY)[.]

Before trial, the district court dismissed the robbery charge on the State's motion.

Evidence of Charged Crimes.

At Davis’ jury trial, the State presented evidence that Quigley was discovered on June 26, 2018, dead in his home amid signs of a struggle. An autopsy later determined that he had sustained numerous stab wounds, resulting in his death about 3 days before his body was found.

The investigation led to the arrests of Christopher Reagan and Alisia Cooke. Based on interviews with Reagan and Cooke, investigators identified Davis as an additional suspect. Davis was subsequently arrested in another state.

At Davis’ trial, Cooke testified for the State. She testified that a week before Quigley's murder, she and Reagan were "trying to come up with ways to come up with money." After discussing various options, they settled on robbery. Cooke testified that at some point, Davis joined the discussion. According to Cooke, she talked to Reagan and Davis about her starting a social media account to obtain invitations to men's homes to exchange sex for money. Cooke testified that the three of them also discussed, as part of their plan, that once she gained access to a would-be victim's residence, she would use text messaging to inform Reagan and Davis about the layout, any valuables, and whether there were other people or animals inside.

Cooke testified that on June 24, 2018, Quigley contacted her via the social media account Cooke set up to carry out the robbery plans. Quigley asked Cooke to have sex and get high with him in exchange for money. Cooke testified that she told Reagan and Davis that she was going to Quigley's house and that, based on her knowledge of Quigley, "if they wanted to rob somebody, that this is going to be the person." Cooke testified that both Reagan and Davis agreed to go with her to Quigley's house to rob him.

Cooke testified that she, Reagan, and Davis rode in the same vehicle to Quigley's neighborhood. While parked down the street from Quigley's residence, together, they finalized their plans. According to Cooke, they all willingly agreed that she would enter Quigley's house, text message Reagan and Davis to let them know she was inside, and make sure the door remained unlocked so that Reagan and Davis could knock Quigley unconscious and restrain him. While Cooke was still in the vehicle, Reagan and Davis looked for objects to use "to help knock [Quigley] out," and a blue "Mag-Lite" flashlight was placed in a backpack.

Cooke testified that after Quigley let her in, they began to use drugs. According to records received in evidence and Cooke's testimony, Cooke exchanged social media messages with Davis shortly before 9 a.m on June 24, 2018. In the messages, Davis told Cooke to let him and Reagan know when she was inside, confirmed the location of Quigley's dog, and instructed Cooke to "[t]ake him to the bedroom." Cooke testified that she took Quigley to the bedroom and that Reagan and Davis entered through the unlocked door, as planned. Reagan then attacked Quigley in the bedroom. Cooke testified that at one point, she saw Davis holding "a kitchen knife — or a butcher block." Cooke went to another area of the house to use drugs; from there, she heard sounds of a struggle, including someone yelling, " ‘Ow,’ " and someone saying, " ‘Get him. Hold him.’ "

Cooke testified that after a "little while," Reagan and Davis checked on Cooke, and the three remained in the house for a time, using drugs, while Quigley was lying on the floor. Cooke testified that Reagan and Davis stole several items from the house, including drugs and electronics, which the three divided and used or sold. In subsequent social media messages to Cooke, Davis expressed interest in keeping a video projector and a knife.

Cooke was arrested soon after. At trial, she acknowledged that she initially "lied to" investigators about "[p]retty much everything," but testified that she eventually told them "what really happened." Cooke also admitted to lying in an earlier deposition about her history of prostitution and acknowledged her criminal history involving dishonesty. She also testified that she used methamphetamine daily prior to her arrest. Cooke's testimony at Davis’ trial was part of her plea agreement for charges related to Quigley's death.

In addition to the social media messages Davis exchanged with Cooke while she was inside Quigley's residence, the State presented text messages that corroborated Cooke's version of events, including text messages between Cooke and Reagan referring to Davis’ involvement in the plan. The State also presented evidence that there was activity from Davis’, Cooke's, and Reagan's cell phones on cell towers in the vicinity of Quigley's house on June 24, 2018, between 10:30 and 11:02 a.m.

DNA testing could not exclude Reagan, Davis, Cooke, or Quigley as contributors to the DNA profiles obtained from swabs of a knife found under Quigley's leg. (Investigators determined this knife was not the murder weapon; their investigation showed that Reagan and Cooke gave the knife used to kill Quigley to an acquaintance for disposal.) Quigley could not be excluded as a DNA contributor to bloodstains found on jeans discovered in the vehicle Davis was using at the time of his arrest; the jeans were in a backpack along with paperwork belonging to Davis. Quigley could not be excluded as a DNA contributor to suspected blood evidence on a blue "Mag-Lite" flashlight found at the crime scene.

State's Impeachment of Own Witness.

The State called Julie Skalberg to testify at trial. Skalberg identified herself as a friend of Davis’ mother. She testified that on June 26, 2018, Davis and a female companion called her, and later, they arrived at her residence in Des Moines, Iowa. Davis communicated to Skalberg that he wanted to take her up on her previous offer to help him "get a fresh start of things." It is apparent from the record that, with respect to several subjects, Skalberg did not testify as the State anticipated.

On direct examination, the prosecutor asked Skalberg if Davis told her where he was coming from, and Skalberg answered, "He did not." The prosecutor then produced a copy of Skalberg's handwritten statement to law enforcement and asked her to review its contents. Skalberg reviewed the statement, which was not offered or received in evidence, and then stated, "I thought that [Davis] had told me that he had c[o]me from Council Bluffs, [Iowa,] but I cannot 100 percent say that's what — where he told [me] he came from. I just had assumed that. They never really gave me a direct point of where they were coming from."

After this statement, the prosecutor was about to continue questioning Skalberg by quoting from her statement to police, when defense counsel objected on the grounds that the statement to police was hearsay. The prosecutor said, "I'm actually impeaching her now, because I just showed her a document that she said was her statement." Defense counsel responded that the State had not "shown a need" to impeach its own witness and that "there has been nothing inculpatory said by her, nothing exculpatory said by her." The district court overruled Davis’ objection.

The prosecutor continued questioning Skalberg, "Isn't it true that, in your statement, you wrote that [Davis and his companion] both said that they had — that things were getting crazy in Council Bluffs?" Skalberg agreed that was what she said and clarified that Davis and his companion "really didn't" tell her where they had come from, "[t]hey just said that things were getting crazy over there ... [i]n Council Bluffs."

The prosecutor continued direct examination, and Skalberg testified that while Davis was at her residence, she gave him a backpack. When the prosecutor asked whether Skalberg remembered previously saying that she never gave Davis a backpack, the...