State v. Mason

709 N.W.2d 638

271 Neb. 16

STATE of Nebraska, appellee, v. Rodney MASON, appellant.

No. S-04-852.

Supreme Court of Nebraska.

February 3, 2006.

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Dennis R. Keefe, Lancaster County Public Defender, Andrea D. Snowden, and Ryan Esplin, Senior Certified Law Student, for appellant.

Jon Bruning, Attorney General, and Kimberly A. Klein, Lincoln, for appellee.

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

MILLER-LERMAN, J.

NATURE OF CASE

Rodney Mason appeals his convictions and sentences in Lancaster County District Court for first degree murder and use of a deadly weapon to commit a felony. Mason assigns error to, inter alia, the trial court's refusal to give certain requested instructions with respect to the testimonies of the State's main witnesses against him and to the trial court's disposition of his challenge to the testimony of the State's firearms expert. We affirm Mason's convictions and sentences.

STATEMENT OF FACTS

On July 31, 2003, the State filed an information charging Mason with first degree murder and use of a deadly weapon to commit a felony in connection with the April 6, 2003, shooting death of Sergio King in Lincoln. The main evidence against Mason consisted of the testimonies by three eyewitnesses: Nicole Wagy, Prentice Mason (Prentice), and Lolester Mitchell. Prentice is Mason's brother. Wagy and Prentice both generally testified that they were in Wagy's car with Mason and King when Mason shot King. Mitchell testified that he was in another car when he saw King exiting Wagy's car and saw King shot by someone from inside Wagy's car. Mitchell was unable to identify which person within Wagy's car fired the shot and was unable to identify Mason as being one of the people inside the car. The evidence at trial also included testimony by several other witnesses, including expert testimony by the forensic pathologist who performed the autopsy, which results showed that King died from gunshot wounds, and by a firearms expert from the Nebraska State Patrol who testified regarding his examination of the bullets and casings found in or near King's body.

Testimonies of Wagy and Prentice.

Wagy and Prentice were the two witnesses who identified Mason as the person who shot King. Wagy testified that she was at a party at Prentice's house on the night of April 5, 2003. Mason was also at the party. Mason and some other individuals spent the night at Wagy's apartment. On the morning of April 6, Wagy decided to obtain some marijuana and she contacted King, from whom she had previously bought marijuana. Wagy drove her car to meet King, and she brought Mason with her. Wagy and Mason picked up Prentice on the way to meeting King. Mason rode in the front passenger seat of Wagy's car, and Prentice rode in the passenger's side back seat. Wagy drove to a location where they met King. Another person was in the car with King. King did not want to stay at that location because it was near a police substation, so they drove both cars to some other locations until they arrived at the place chosen by King. King came out of his car and got into the driver's side back seat of Wagy's car. The parties in the car had a conversation regarding the purchase of marijuana, and eventually the conversation turned to a discussion of purchasing crack cocaine. At one point, Mason pulled out a gun and told King, "Break yourself." Mason then fired a shot at King, and Wagy noticed blood on King's hand. King got out of Wagy's car and ran toward his car, and Wagy drove away. Wagy did not recall hearing or seeing a second shot. She testified that she did not know that Mason was going to shoot King.

After the shooting, Wagy drove to Prentice's home, where she stayed for a while before leaving Prentice and Mason and returning to her home. She checked into a hotel that night with some friends and learned from a television news report that King had been killed. After learning of the killing, Wagy and a friend took her car to a location west of Lincoln, where they intentionally crashed and burned the car. Wagy then returned to the hotel room, where she stayed that night and where the police found her the next day and questioned her regarding King's shooting.

Prentice's testimony regarding the events of April 6, 2003, was similar to the account given by Wagy. Prentice testified that when he got into Wagy's car, he did not know there was going to be a drug transaction, and that he learned about the transaction when he heard Wagy make a call to King. Later, as Mason and King were talking about drug transactions in Wagy's car, Prentice stated that he saw Mason pull out a gun. Prentice testified that he knew Mason had a gun with him because Mason had shown it to him earlier, but Prentice stated that he did not know Mason was going to use it. Prentice stated that the gun was a "Tech-22." Prentice next testified that he heard Mason tell King, "Break yourself." Prentice testified that "break yourself" meant that Mason was telling King to "Give me what you got. . . . Anything you have, give it to me." Prentice testified that King "looked at [Mason] funny" and that Mason then shot King in the hand. King's hand was resting on his thigh. Prentice testified that King then got out of the car and that as King was leaving the car, Mason shot at King a second time.

Prentice testified that Wagy drove the car away immediately after the shootings and that he did not know whether the second shot hit King or what happened to King after they left. According to Prentice, Wagy, Mason, and Prentice returned to Prentice's apartment, and Prentice threw the clothes he had been wearing into a Dumpster. Prentice learned that night from television news reports that King had died. After learning of King's death, Prentice asked a cousin to take him and Mason to Omaha.

Both Wagy and Prentice were contacted by police some time after King's death and each provided various different stories to police before they eventually told the version of events to which they testified at trial and which identified Mason as the shooter. These stories ranged from Prentice's initial denial of any knowledge or involvement to Wagy's identifying people other than Mason as the shooter. Both Wagy and Prentice were questioned at trial regarding their prior inconsistent statements.

During Wagy's testimony, Mason requested that a limiting instruction based on NJI2d Crim. X5.3 regarding prior inconsistent statements be read to the jury at the end of Wagy's testimony. Mason requested a similar instruction with respect to Prentice's testimony. The court denied both requests. In denying the request at the time of Prentice's testimony, the court noted that it had given an expanded introductory jury instruction at the beginning of trial regarding the evidence that can be considered in determining witness credibility and that the instruction covered significant portions of what Mason requested in this instruction. The court also gave a final jury instruction to the effect that the jury could consider prior inconsistent statements in determining the credibility of witnesses; however, the court denied Mason's request to give final jury instructions specifically naming Wagy and Prentice as witnesses whose prior inconsistent statements could be considered in determining their credibility.

Mason also requested final jury instructions with respect to both Prentice's and Wagy's testimonies that were based on NJI2d Crim. 5.6, regarding accomplice testimony. Instead of the requested instruction, the court gave an instruction stating, "You should closely examine the testimony of . . . Wagy and Prentice . . . for any possible motive each might have to testify falsely." Mason objected to this instruction.

Firearms Expert Testimony.

Prior to trial, Mason filed a motion in limine seeking to prevent the State from presenting evidence "regarding firearm examination, toolmark examination, rifling characteristics examination, comparison testing or manufacturer identification completed on bullets or shell casings in this case." He asserted that such evidence did "not meet the foundation requirements set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579[, 113 S.Ct. 2786, 125 L.Ed.2d 469] (1993) and adopted by the Nebraska Supreme Court in Schafersman v. Agland Coop., 262 Neb. 215 (2001)." Mason requested an evidentiary hearing to determine the reliability of such evidence and whether the witness who would present such testimony was an expert and would give relevant testimony. In response to the motion in limine, the court ordered the State's expert to submit himself for a deposition and ordered Mason to "file a specifications [sic] of the inadequacies of the expert's testimony in sufficient detail to permit the state to respond, together with all documentary evidence he intends to rely on and a brief in support thereof." The court further ordered the State to respond to Mason's filing, ordered Mason to file a reply to the State's response, and set a hearing date.

The State's firearms expert, Mark S. Bohaty, gave a deposition on January 16, 2004, in which he was questioned by Mason. The State was present at the deposition but did not question Bohaty. Thereafter, Mason filed a second motion in limine in which he argued, inter alia, that the evidence was not relevant because the expert could only testify as to what might have happened; that any probative value of the evidence would be outweighed by the danger of unfair prejudice, because the expert's conclusions were based on conjecture; that reliability of the expert's theory and methodology had not been established, because the expert only provided his opinion as to such reliability and did not provide any documentation of testing of such reliability; and that the expert had not provided documentation to...