State v. Floyd

725 N.W.2d 817

272 Neb. 898

STATE of Nebraska, appellee, v. William C. FLOYD, Jr., appellant.

No. S-05-1376.

Supreme Court of Nebraska.

January 12, 2007.

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

Jon Bruning, Attorney General, and James D. Smith for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

MILLER-LERMAN, J.

I. NATURE OF CASE

William C. Floyd, Jr., was convicted in the district court for Douglas County of first degree murder, manslaughter of an unborn child, and being a felon in possession of a firearm. He was sentenced to life imprisonment on the murder conviction, to a consecutive sentence of 20 to 20 years' imprisonment on the manslaughter conviction, and to a concurrent sentence of 20 to 20 years' imprisonment on the possession of a firearm conviction. The charges against Floyd arose from the shooting death of Destiny Davis, who was pregnant at the time of her death. Floyd appeals his convictions. We affirm Floyd's conviction for being a felon in possession of a firearm, but we reverse Floyd's convictions for first degree murder and manslaughter of an unborn child and remand the cause for a new trial on those charges.

II. STATEMENT OF FACTS

On July 30, 2004, the State charged Floyd with first degree murder and manslaughter of an unborn child in connection with the October 7, 2003, shooting death of Davis, who was pregnant at the time of the shooting. The information against Floyd was subsequently amended to include a charge that Floyd was a felon in possession of a firearm. Floyd was also charged with two counts of first degree assault on two other individuals, but the assault charges were subsequently dismissed pursuant to Floyd's plea in abatement.

On the evening of October 7, 2003, Davis and several other individuals, including Davis' sister, Shantelle Vickers, were inside a home located in Omaha, Nebraska. Shortly before 10:30 p.m., Vickers went to the bathroom to prepare to take a bath, while Davis and the other individuals remained in the living room. While in the bathroom, Vickers heard shots. The shots were fired from outside through the living room window, and Davis and two others were hit. Davis died; the two other individuals were wounded but did not die. Vickers testified at trial that after hearing the shots, she looked out a window and saw a man she identified as Floyd outside the house.

Trial in this case began with jury selection on May 16, 2005. After jurors were chosen but before the jury was sworn, Floyd raised a challenge under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), to peremptory strikes the State had used against two prospective jurors. The parties agreed that Floyd and the two prospective jurors were African-American. Floyd acknowledged that a third prospective juror who was African-American was not struck and remained on the jury. The court determined that Floyd had made a prima facie showing that strikes had been used on the basis of race and put the burden on the State to articulate race-neutral explanations for its strikes. The State asserted that the first prospective juror had been stricken because he testified that he had read about the shooting in the newspaper, that he had friends who had talked about the shooting, and that he thought he had a friend who was a friend of one of the shooting victims. The State also noted that the first prospective juror testified that he was scheduled to take a civil service examination the next Tuesday. With regard to the second prospective juror, the State noted that the juror had testified that he had attended a Christian academy. Prosecutors stated that they did not want a juror who might have a "judge not lest you be judged type mentality." The court determined that the State's explanations were race-neutral and concluded that Floyd had not carried his burden of proving purposeful discrimination. The court denied Floyd's Batson challenge, and the trial proceeded.

The State's theory at trial was that Floyd shot through the window with the intent to shoot Vickers rather than Davis. Prior to trial, the State filed a motion pursuant to Neb.Rev.Stat. § 27-404(3) (Reissue 1995), seeking to admit evidence of previous assaults and threats Floyd had made against Vickers in the months and days prior to the shooting. The court determined that evidence of certain prior incidents was admissible for the purposes of establishing motive, intent, plan, and absence of mistake or accident.

Vickers testified at trial, and the State questioned her regarding the incidents. Floyd objected to most of the State's questioning, but he did not object to testimony regarding threatening telephone calls Floyd had made to Vickers on the night of the shooting. The court overruled Floyd's objections. After Floyd's first objection, the court instructed the jury that it could consider the evidence for the limited purpose of deciding whether Floyd "had the motive, intent or plan to commit the acts for which he stands charged, or the absence of mistake or accident," but not for any other purpose "such as bad character or propensity." As subsequent testimony was admitted over Floyd's objections, the court referred the jury back to the limiting instruction, and the instruction was later repeated. In connection with Vickers' testimony regarding one of the prior incidents, the State offered into evidence an exhibit that included a protection order Vickers had obtained against Floyd. Attached to the protection order was a petition and affidavit in which, inter alia, Vickers described the acts Floyd had committed against her. The court allowed a redacted version of the exhibit to be admitted, over Floyd's objections.

During the course of the trial, evidence was presented which related to certain issues, including the charge that Floyd was a felon in possession of a firearm. In this regard, a former girl friend of Floyd's testified that Floyd had shown up at her house on the night of the shooting. She testified that at one point, Floyd "stood up and a gun fell out [of] his pocket." She described the gun as a semiautomatic, and she testified that Floyd said he had the gun "for protection." The State also entered into evidence a certified record showing that in 1997, Floyd had been convicted of felony criminal mischief and was sentenced to 1 to 2 years' imprisonment.

Closing arguments were presented to the jury on May 20, 2005. At the beginning of the State's closing argument, the prosecutor stated, "The evidence has proved that . . . Floyd is a murderer, that's what it proved, and if I don't have the courage to look him in the eye and call him what he is, I don't have the right to ask you to do the same." Floyd immediately objected to the prosecutor's statement and moved for a mistrial. The court instructed the jury "to disregard the last comment about the prosecutor's opinion and not be influenced by any statements of counsel not supported by the evidence." In a sidebar conference, the court warned that the prosecutor's statement was "very close" to an opinion but overruled Floyd's motion for a mistrial. The court then repeated its instruction to the jury "to disregard the last remark by the prosecutor when he pointed to [Floyd]." The court noted that the members of the jury were "all nodding in the affirmative." The State resumed its closing argument, and the prosecutor almost immediately said, "Why does the State think it has proven . . . Floyd to be guilty of —." Before the prosecutor completed the sentence, Floyd objected. The court sustained the objection and instructed the jury to disregard the statement. The prosecutor then stated to the jury, "What I'm trying to say is let's look at what the evidence has shown us, all right? Motive. Why is . . . Davis dead? Why do we think . . . Floyd did it? Why are we here?" Floyd again objected, and the court again sustained the objection and instructed the jury to disregard the statement. Floyd renewed his motion for a mistrial; the court overruled the motion and instructed the jury to disregard any reference to the prosecutor's opinion. The State continued its closing argument, and some time into the argument, the prosecutor stated, "If you believe—and it is not an element of proof that the State has to prove where the shots were fired from, but I don't see how reasonable minds could differ." Floyd objected "to the personal opinion," and the court sustained the objection and instructed the jury to disregard the prosecutor's personal opinion. Floyd did not at that time renew his motion for a mistrial.

After Floyd presented his closing argument and the court gave its instructions, the jury began deliberations on Friday, May 20, 2005. On the morning of Tuesday, May 24, the jury was reassembled in open court. The foreperson of the jury stated that the jury could not come to a unanimous decision and indicated that the split of votes was 11 to 1. After discussion with counsel, the court instructed the jury to return to the jury room to continue deliberations. That afternoon, the jury returned to the courtroom and the foreperson stated that the jury had reached a verdict. The judge read a verdict finding Floyd guilty on all three counts. Floyd requested that the jury be polled. As the court polled the jury, each juror was asked whether the verdict of guilty was his or her verdict as to each count. Eleven of the jurors answered "[y]es" as to each count. When juror J.K. was asked whether her verdict was guilty as to each count, with respect to the count of first degree murder, she answered, "Probably," with respect to the count of manslaughter of an unborn child, she replied, "I don't know," and with respect to the count of felon in possession of a firearm, she replied, "Yes." After conferring with counsel, the...