State v. Johnson

862 N.W.2d 757

State of Nebraska, appellee

v.Craig Anthony Johnson, also known as Craig A. Johnson, appellant.

No. S–14–101

Supreme Court of Nebraska.

Filed May 15, 2015.

James R. Mowbray and Kelly S. Breen, of Nebraska Commission on Public Advocacy, for appellant.

Jon Bruning, Attorney General, and Erin E. Tangeman for appellee.

Heavican, C.J., Wright, Connolly, Stephan, McCormack, Miller–Lerman, and Cassel, JJ.

Syllabus by the Court

1. Appeal and Error.For an appellate court to consider an alleged error, a party must specifically assign and argue it.

2. Juries: Discrimination: Equal Protection: Prosecuting Attorneys.A prosecutor ordinarily is entitled to exercise permitted peremptory challenges for any reason at all, if that reason is related to his view concerning the outcome of the case. But under Batson v. Kentucky,476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), a peremptory challenge to remove a prospective juror for a racially discriminatory reason violates the Equal Protection Clause.

3. Juries: Discrimination: Prosecuting Attorneys: Proof.Determining whether a prosecutor impermissibly sought to remove a prospective juror based on race is

a three-step process: First, a defendant must make a prima facie showing that the prosecutor exercised a peremptory challenge because of race. Second, assuming the defendant made such a showing, the prosecutor must offer a race-neutral basis for striking the juror. And third, the trial court must then determine whether the defendant has carried his or her burden of proving purposeful discrimination. The third step requires the trial court to evaluate the persuasiveness of the justification proffered by the prosecutor. But the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.

4. Juries: Discrimination: Prosecuting Attorneys: Moot Question.Once a prosecutor has offered a race-neutral explanation for a peremptory challenge and the trial court has decided the ultimate question of intentional discrimination, the preliminary issue of whether the defendant made a prima facie showing that the challenge was racially motivated is moot.

5. Juries: Discrimination: Prosecuting Attorneys: Appeal and Error.An appellate court reviews de novo the facial validity of an attorney's race-neutral explanation for using a peremptory challenge as a question of law. It reviews for clear error a trial court's factual determinations whether an attorney's race-neutral explanation is persuasive and whether his or her use of a peremptory challenge was purposefully discriminatory.

6. Juries: Discrimination: Prosecuting Attorneys.Under the second step of an inquiry under Batson v. Kentucky,476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), a prosecutor must present a comprehensible reason for using a peremptory strike against a prospective juror in response to a Batson challenge. But in determining whether the explanation is race-neutral, a court is not required to reject the explanation because it is not persuasive, or even plausible; it is sufficient if the reason is not inherently discriminatory.

7. Juries: Discrimination: Prosecuting Attorneys.Whether a prosecutor's explanation for using a peremptory strike against a prospective juror is pretextual falls within the trial court's ultimate factual determination in the third step of the inquiry under Batson v. Kentucky,476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

8. DNA Testing: Words and Phrases.In forensic analysis, a DNA profile is a per-son's combination of alleles at each tested locus.

9. Rules of Evidence: Appeal and Error.When the Nebraska Evidence Rules commit the evidentiary question at issue to the discretion of the trial court, an appellate court reviews the admissibility of evidence for an abuse of discretion.

10. Trial: Rules of Evidence.A trial court exercises its discretion in determining whether evidence is relevant and whether its prejudicial effect substantially outweighs its probative value.

11. Judgments: Words and Phrases.An abuse of discretion occurs when a trial court's decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence.

12. Rules of Evidence.Under Neb. Evid. R. 402, Neb.Rev.Stat. § 27–402 (Reissue 2008), irrelevant evidence is inadmissible.

13. Rules of Evidence: Words and Phrases.Under Neb. Evid. R. 401, Neb.Rev.Stat. § 27–401 (Reissue 2008), relevant evidence means evidence having any

tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

14. Rules of Evidence.Under Neb. Evid. R. 403, Neb.Rev.Stat. § 27–403 (Reissue 2008), even relevant evidence is properly excluded if its probative value is substantially outweighed by its potential for unfair prejudice.

15. DNA Testing: Evidence.The relevance of DNA evidence depends on whether it tends to include or exclude an individual as the source of a biological sample.

16. DNA Testing: Evidence.Nebraska case law generally requires that DNA testing results be accompanied by statistical evidence or a probability assessment that explains whether the results tend to include or exclude the individual as a potential source.

17. Expert Witnesses: Words and Phrases.An expert does not have to couch his or her opinion in the magic words of “reasonable certainty,” but it must be sufficiently definite and relevant to provide a basis for the fact finder's determination of a material fact.

18. Expert Witnesses.A court should exclude an expert's opinion when it gives rise to conflicting inferences of equal probability, so the choice between them is a matter of conjecture.

19. Expert Witnesses: Proof: Words and Phrases.An expert opinion which is equivocal and is based upon such words as “could,” “may,” or “possibly” lacks the certainty required to sustain the burden of proof of causation for which the opinion has been offered.

20. Trial: DNA Testing: Evidence.Unless the State presents the statistical significance of DNA testing results that shows a defendant cannot be excluded as a potential source in a biological sample, the results are irrelevant. They are irrelevant because they do not help the fact finder assess whether the defendant is or is not the source of the sample. And because of the significance that jurors will likely attach to DNA evidence, the value of inconclusive testing results is substantially outweighed by the danger that the evidence will mislead the jurors.

21. Criminal Law: Trial: Evidence: Appeal and Error.An error in admitting or excluding evidence in a criminal trial, whether of constitutional magnitude or otherwise, is prejudicial unless the error was harmless beyond a reasonable doubt.

22. Verdicts: Juries: Appeal and Error.Harmless error review looks to the basis on which the jury actually rested its verdict; the inquiry is not whether in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the actual guilty verdict rendered was surely unattributable to the error.

Connolly, J.

I. SUMMARY

A jury convicted the appellant, Craig Anthony Johnson, of first degree murder, use of a weapon to commit a felony, and possession of a deadly weapon by a prohibited person. The court sentenced him to prison terms of, respectively, life, 40 to 50 years, and 10 to 20 years, with all terms to be served consecutively.

On appeal, Johnson argues that the court erred in (1) admitting evidence of inconclusive DNA testing results; (2) overruling his Batson¹ challenge to the State's use of a peremptory strike against the only African–American prospective juror; and (3) admitting cumulative, gruesome autopsy photographs.

We conclude that Johnson has waived any claimed error regarding the photographs and that the court did not err in overruling his Batson challenge. We conclude, however, that the court improperly admitted irrelevant DNA testing results. But because we also conclude that the evidentiary error was harmless beyond a reasonable doubt, we affirm Johnson's convictions.

II. BACKGROUND

In the spring of 2011, April Smith separated from her husband, Edward Smith (Ed), and began dating Johnson. At some point, Johnson began working near Sidney, Nebraska, at a pipe distributor for oil rig operations. April managed a convenience store near the distributor and lived in a duplex within eyesight of the store. Johnson moved in with April about the end of the summer. But April continued to maintain a close relationship with Ed, and Ed continued to help her with some financial

obligations and the maintenance of her white van, which they jointly owned.

For Thanksgiving 2011, April invited Ed to have dinner with herself, Johnson, and April's nephew and his family. Just before Thanksgiving, Johnson told a coworker that he was upset that April had invited Ed and that he would kill her if she ever left him to go back to Ed. During the Thanksgiving gathering, Ed refused Johnson's offer to repair April's van.

On Saturday morning, December 10, 2011, Ed went to April's duplex and took her van to repair the brakes. He returned it around noon. Ed was a truckdriver and left shortly after returning the van to go to Texas.

Johnson worked on Saturday morning. His supervisor said that Johnson asked to leave work early because he heard that Ed was going to April's house. She said that Johnson frequently mentioned meetings between April and Ed and was upset and jealous about their relationship. On Saturday morning, he told his supervisor that if he ever caught them together, he would “beat the shit out of both of them.” His supervisor advised him to leave if he was unhappy, and he apologized for his remark. On Saturday afternoon, Johnson called a coworker and asked whether he could come over because he and April were fighting, but the coworker had plans to leave town.

Later that evening, April's nephew, his wife, and...