State v. Mabior

314 Neb. 932

994 N.W.2d 65

STATE of Nebraska, appellee, v. Mabior M. MABIOR, appellant.

No. S-22-574.

Supreme Court of Nebraska.

Filed August 25, 2023

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

Michael T. Hilgers, Attorney General, and Stacy M. Foust, Lincoln, for appellee.

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

Funke, J.

I. INTRODUCTION

Mabior M. Mabior appeals his convictions in the district court for Douglas County, Nebraska, for two counts of first

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degree murder and two counts of use of a firearm to commit a felony. Mabior's appeal focuses on the discovery of an extended magazine for a firearm and a receipt for an extended magazine and statements made in his interviews with police. Mabior also focuses on certain evidence admitted and on certain statements by the prosecution at trial, most notably including those regarding the prior shooting of one of the victims. Mabior's trial counsel did not move to suppress evidence of the extended magazine, the receipt, or Mabior's statements. With few exceptions, Mabior's trial counsel also did not object to the pertinent evidence and statements at trial or move for a mistrial or for a new trial. Accordingly, Mabior alleges plain error and ineffective assistance of trial counsel.

We find the record insufficient to address several of Mabior's claims of ineffective assistance of trial counsel but otherwise find no merit to his arguments on direct appeal. We agree with the State that the district court plainly erred in sentencing Mabior to "life without the possibility of parole," also stated as "[l]ife, with no parole," on each of his convictions for first degree murder and amend those sentences to life imprisonment consistent with Neb. Rev. Stat. §§ 28-105 and 28-303 (Cum. Supp. 2022). We affirm Mabior's convictions and his sentences as modified.

II. BACKGROUND

Loklok Thok and Doup Deng were shot and killed near the intersection of 24th and Emmet Streets in Omaha, Nebraska, shortly before 3 a.m. on March 27, 2021. Projectiles removed from their bodies fit the characteristics of a 9-mm, .38-caliber, or .357-caliber firearm. A .45-caliber projectile was found in Thok's clothing.

At the scene, the Omaha Police Department (OPD) located multiple 9-mm casings stamped "BLAZER 9mm LUGER" and one .45-caliber casing stamped "SIG 45 AUTO." All the 9-mm casings were ultimately determined to have been fired from the same firearm, but police never recovered the firearms used in the shootings.

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Police obtained a surveillance video from a school across the street from the scene of the shootings. The cameras were motion activated, and while there were three camera angles that cover the area of the shooting, none was "specifically targeted" to that spot. As relevant here, the video shows several people at the intersection of 24th and Emmet Streets shortly before 3 a.m. Seconds later, a person whom the parties agree was wearing red or orange outerwear stood over a person whom police later identified as Deng. Several flashes, similar to gunfire, appeared between that person and Deng. Then, that person bent over Deng. Thereafter, several persons ran toward a dark-colored vehicle that began moving. The person wearing red or orange outerwear was among those people, and the vehicle slowed down or stopped to pick that person up. No one else appeared to get into the vehicle after that person. The dark-colored vehicle then left the scene, followed by an apparently white vehicle.

Police also located a gray Dodge Charger "connected with" the residence where Thok, Deng, and Mabior attended a party prior to the shootings. This vehicle was eventually searched and found to contain a cell phone and wallet. The wallet held an identification card and credit cards in Mabior's name. The cell phone contained a photograph of a receipt for the purchase of an extended magazine for a 9-mm firearm by Mabior's girlfriend.

Police sought to locate Mabior for questioning. One officer surveilled a residence where it was believed that Mabior could be. The officer observed a black Chevy Cruze pull up to the residence and then leave shortly thereafter. The officer followed that vehicle and eventually stopped it for a traffic violation. Mabior was a passenger in the vehicle, and there was an extended magazine for a 9-mm firearm in a plastic bag on the passenger floorboard where Mabior was sitting. The magazine was ultimately determined to contain the same brand and caliber of ammunition as found at the scene.

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Mabior was handcuffed and transported to an Omaha police station for an interview, which was recorded and later admitted into evidence at trial. After being given a Miranda warning and agreeing to speak with police, Mabior stated that Thok and Deng tried to "start[ ] stuff" with him at the party and had tried to fight him in the past. Mabior also stated that Thok was a "troublemaker" who was shot in Dallas, Texas, in 2019 after an incident with Mabior and Mabior's cousin. According to Mabior, his cousin fought Thok after Thok tried to hit Mabior; approximately 15 minutes later, Thok was shot as he "got into it" with other people.

In the interview, Mabior gave inconsistent accounts of the murders. Initially, he claimed that he left before the shootings. However, later, he variously stated that he was nearby and heard gunshots, but did not know who shot the victims; that he saw Goa Dat shoot the victims and leave the scene in a white vehicle with Goa Dat and Goa Dat's brother, Dilang Dat; and that Mabior "touched the bodies" while looking for a cell phone that he believed was stolen from him at the party.

Mabior was released after the interview. However, several hours later, police brought Mabior to the station for a second interview, which was also recorded and later admitted into evidence at trial. Mabior was again given a Miranda warning and agreed to speak with police. Early in the second interview, Mabior admitted that he confronted Thok in the street outside the party for taking his cell phone but claimed that he "let it be" before the victims were shot. Mabior also stated that he was the only one to pat down the victims, that the vehicle—which Mabior described as being white—had to stop so he could get in, and that Goa Dat and Dilang Dat were already in the vehicle when Mabior got in. In addition, Mabior stated that he first saw the extended magazine in the Chevy Cruze on the day of the traffic stop.

Approximately 2 hours into the second interview, a detective stated that Mabior seemed comfortable talking about some topics, but not others. Mabior then asked: "Know why

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I'm not comfortable? ... You said I had a firearm. That made me not want to talk no more." Shortly thereafter, the detective informed Mabior that he was "gonna have to talk" if he maintained that someone else killed Thok and Deng in his presence. The detective then asked Mabior what he was wearing at the time of the shootings. Mabior later said: "No. I'm just not talking anymore." The detective asked why, and Mabior said: " ‘Cause I be done. I'm done thinking about it. About everything you're saying." Some 15 minutes later, Mabior stated: "I just don't wanna talk no more." The detective asked Mabior why he no longer wanted to talk and why he was afraid to talk if he "didn't do anything." Mabior responded that he was not afraid to talk, and the interview continued from there.

At the conclusion of the interview, officers placed Mabior under arrest. The State subsequently charged him with two counts of first degree murder and two counts of use of a firearm to commit a felony. Mabior pled not guilty to the charges.

1. MOTION TO EXCLUDE EVIDENCE REGARDING PRIOR SHOOTING

Prior to trial, Mabior moved to preclude the State from introducing evidence or eliciting testimony regarding his involvement in Thok's prior shooting, because his involvement in that crime was "propensity evidence" and "completely based on speculation." Mabior also argued that testimony about the prior shooting was irrelevant and more prejudicial than probative.

The State countered that people who attended the party with Mabior and the victims reported that he and the victims were arguing and attributed that argument to a "long-standing beef between [them]," which encompassed the prior shooting. The State argued that this "beef," or feud, was motive for the murders and that as such, the prior shooting was "inextricably intertwined into the story." The State also argued that there was no need to hold a hearing regarding the evidence of the prior shooting under Neb. Evid. R. 404, Neb. Rev. Stat. § 27-404

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(Cum. Supp. 2022), because it was not adducing evidence that Mabior was the shooter.

The district court overruled Mabior's motion, reasoning that the issue of whether to exclude evidence regarding the prior shooting would be best addressed at trial. The district court also found that a rule 404 hearing was unnecessary, because the prior shooting is not being "directly attributed" to Mabior. However, the district court cautioned that the State "need[ed] to be careful" in presenting that evidence, including by ensuring foundation and lack of hearsay.

2. PERTINENT EVIDENCE AT TRIAL

A jury trial was held. In addition to the background facts set forth above, the evidence at trial addressed other matters at issue in Mabior's appeal. That evidence is briefly summarized below as it relates to Mabior's assignments of error. Where relevant, additional facts will be noted later in the opinion.

(a) Narration of Surveillance Video

The surveillance video described above was admitted into evidence and also played in open court. Several OPD officials testified regarding its contents. In one instance, a sergeant testified that Thok and Deng could be seen on the video at approximately 2:55 a.m. walking eastbound on Emmet Street from...